Jackson & Ors, R (on the application of) v HM Attorney General

Legislation enacted under the Parliament Act 1911 derives its authority from that Act, so the courts may examine whether its statutory conditions were met. The Act permits a later Act to make a modest modification to its procedure, even without an express amendment power. The Parliament Act 1949 validly reduced the Lords’ delaying period from two years and three sessions to one year and two sessions. The power is not unlimited: more fundamental constitutional changes may fall outside it. Parliamentary understanding at enactment and subsequent constitutional practice may assist in determining the scope of an unusual constitutional settlement. The Hunting Act 2004 was therefore valid and the appeal was dismissed.

The appellants challenged the validity of the Parliament Act 1949 and the Hunting Act 2004. The Hunting Act had been enacted using the procedure in the Parliament Act 1911, as amended by the 1949 Act. They argued that the 1911 Act could not lawfully be amended through its own procedure without the consent of the House of Lords.

The Administrative Court, in judgments delivered by Maurice Kay LJ and Collins J on 28 January 2005, dismissed the claim. The appeal concerned the justiciability of the issue, the nature and extent of the legislative power created by the 1911 Act, whether that power authorised the 1949 amendments, and the relevance of parliamentary material and subsequent constitutional practice.

1. The Court held that the issue was justiciable. Section 3 of the Parliament Act 1911 expressly contemplated judicial scrutiny of the validity of later Acts enacted under the Act. The Court’s task was to determine statutory effect and compliance with the enabling Act, not to adjudicate on the propriety of parliamentary proceedings.
2. The 1911 Act was the source of authority for legislation enacted through its procedure. Such legislation could properly be regarded as subordinate or delegated legislation in relation to that source. Procedural compliance did not, however, make every enactment valid regardless of its subject matter. An attempt to extend Parliament’s life beyond five years without the Lords’ consent would be ineffective.
3. The Court rejected a general rule that an enabling legislature could amend its regulating instrument only where an express amendment power existed. The authorities, including McCawley v The King [1920] AC 691, R v Burah [1878] 3 App Case 889 and The Bribery Commissioner v Ranasinghe [1965] AC 172, showed that the decisive question was whether the regulating instrument, properly construed, extended to the proposed alteration and whether its procedures were followed.
4. Section 2(1) of the 1911 Act referred broadly to any Public Bill, subject to specified exclusions. It did not implicitly exclude a Bill amending the procedure. The amendments made by the Parliament Act 1949 were modest: they reduced the Lords’ delaying period but left the constitutional relationship between the Houses substantially unchanged. They therefore fell within the power conferred by the 1911 Act.
5. Because the 1911 Act embodied an unusual constitutional settlement, its scope could not be determined from its wording alone. Parliamentary debates at enactment and the subsequent understanding and conduct of Parliament, the Monarch, the courts and the public were materially relevant. The 1949 Act had become a political fact through widespread recognition and reliance. The Court did not determine in advance the scope of any more fundamental amendment, but indicated that changes such as abolishing the House of Lords would be more likely to fall outside the power.

The appeal was dismissed. There was no order as to costs and leave to appeal was refused.

1. Court of Appeal (Civil Division): The appeal was dismissed on 16 February 2005. There was no order as to costs and leave to appeal was refused.
2. Administrative Court: Maurice Kay LJ and Collins J dismissed the claim on 28 January 2005.