Jackson v Attorney General is one of the most important constitutional law decisions of the United Kingdom in the early 21st century. Decided by the House of Lords in 2005 and reported in 2006, the case dealt with the legality of the Parliament Act 1949 and, by extension, the Hunting Act 2004. The matter raised profound questions about the doctrine of parliamentary sovereignty, the balance of power between the House of Commons and the House of Lords, and the judiciary’s role in constitutional review. The judgment not only confirmed the validity of the Hunting Act but also opened a wider debate about the limits of parliamentary sovereignty and the courts’ capacity to intervene in constitutional matters.
Background and Context of Jackson v Attorney General
The case arose from the controversial Hunting Act 2004, which banned fox hunting with dogs in England and Wales. The Act was strongly supported by the House of Commons but faced persistent opposition in the House of Lords. To enact it without the Lords’ consent, the Government relied on the procedure in the Parliament Acts of 1911 and 1949.
The Parliament Act 1911 had originally been introduced after a constitutional crisis between the Commons and Lords in the early 20th century. It provided that if the Lords rejected a bill on three successive occasions over two years, the Commons could send the bill directly for Royal Assent without the Lords’ approval. The Parliament Act 1949 amended the 1911 Act, reducing the Lords’ delaying power to one year. However, the 1949 Act itself was passed using the procedure of the 1911 Act, without the consent of the Lords.
This raised the central issue in Jackson v Attorney General: could Parliament use the 1911 procedure to amend the Act itself, and if not, was the 1949 Act invalid? If the 1949 Act were invalid, the Hunting Act 2004—which relied on it—would also be unlawful.
Facts of the Case
- The Hunting Act 2004 was passed under the Parliament Act 1949 procedure, following repeated rejection in the House of Lords.
- Jackson, on behalf of the Countryside Alliance and the pro-hunting lobby, challenged the validity of the 2004 Act.
- The argument was that the Parliament Act 1949 was not a true Act of Parliament because it had been enacted without the consent of the House of Lords, contrary to constitutional principle.
- If the 1949 Act was invalid, the Hunting Act would have been unlawfully enacted.
Legal Issues
- Was the Parliament Act 1949 validly enacted under the Parliament Act 1911?
- If the 1949 Act was invalid, did that render the Hunting Act 2004 unlawful?
- Are statutes passed using the Parliament Acts procedure to be regarded as primary legislation or merely delegated legislation?
- Do the courts have jurisdiction to review the validity of legislation enacted under constitutional statutes?
- Are there potential limits to parliamentary sovereignty, as traditionally understood?
Arguments of the Parties
- Claimants (Jackson and Countryside Alliance):
- The Parliament Act 1911 only permitted its use for passing “ordinary” legislation and not for amending itself.
- Since the 1949 Act was enacted without the Lords’ consent, it was not valid.
- Consequently, the Hunting Act 2004 had not been properly enacted.
- Respondent (Attorney General):
- The 1949 Act was validly enacted as it complied with the procedure set out in the 1911 Act.
- The Hunting Act 2004 was therefore lawful.
- Laws passed under the Parliament Acts are primary legislation, not subordinate legislation.
Jackson v Attorney General Judgement
The House of Lords dismissed the appeal and upheld the validity of both the Parliament Act 1949 and the Hunting Act 2004.
- Lord Bingham (leading judgement):
- The Parliament Acts 1911 and 1949 were validly enacted laws.
- The Hunting Act 2004 was therefore primary legislation and fully valid.
- He emphasised that while legislative matters are usually for Parliament, it was within the judiciary’s constitutional duty to determine questions of validity when raised.
- Lord Steyn and Lord Hope (obiter dicta):
- Both raised the possibility that parliamentary sovereignty is not absolute.
- They suggested there might be exceptional circumstances where courts could decline to recognise legislation (for example, if Parliament attempted to abolish judicial review or fundamental rights).
- Baroness Hale:
- Supported the view that Parliament is normally sovereign, but sovereignty derives from the rule of law and may not be unlimited.
Conclusion
Jackson v Attorney General remains a landmark decision in UK constitutional law. It upheld the legality of the Parliament Acts 1911 and 1949, confirmed the validity of the Hunting Act 2004, and reinforced the supremacy of the House of Commons over the House of Lords in law-making. More importantly, it triggered a profound debate about the scope and limits of parliamentary sovereignty. While the orthodox Diceyan view holds that Parliament is absolutely sovereign, the obiter dicta in this case suggest that the principle may not be without boundaries. The House of Lords’ decision therefore both reaffirmed constitutional orthodoxy and planted the seeds of constitutional evolution.