Jackson & Ors, R (on the application of) v Her Majesty's Attorney General

The Parliament Acts 1911 and 1949 provide an alternative legislative route through which an Act of Parliament may be enacted without the consent of the House of Lords. The expression “any Public Bill” in section 2(1) of the Parliament Act 1911 is wide enough to include a Bill amending the 1911 Act itself, subject only to the express statutory exclusions. Legislation enacted under that procedure is not delegated legislation. It is an Act of Parliament, although compliance with the statutory procedural conditions may be judicially examined. The colonial-constitution authorities do not establish a contrary rule. The 1949 Act was therefore valid, and the challenge to the Hunting Act failed.

The claimants sought judicial review of the validity of the Hunting Act 2004. The Act had received Royal Assent after the Speaker certified compliance with section 2 of the Parliament Act 1911 as amended by the Parliament Act 1949.

The claimants argued that the 1949 Act was invalid because the 1911 Act could not be amended using its own procedure. They advanced three overlapping arguments: that the 1911 Act should be construed as excluding such amendments; that the procedure involved delegated legislation and the delegate could not enlarge its authority; and that a subordinate legislature could not amend the conditions governing its legislative power. The central issue was whether the 1949 Act was lawfully enacted.

1. The application was dismissed. The validity of the 1949 Act was a prerequisite to the challenge to the Hunting Act, and the court was not persuaded that the 1949 Act was invalid.
2. Section 2(1) of the Parliament Act 1911 applies to “any Public Bill”, subject only to the express exclusions for Money Bills and Bills extending the maximum duration of Parliament beyond five years. The wording was sufficiently broad to include a Bill amending the 1911 Act. The preamble did not impose an implied restriction.
3. An Act enacted under the section 2 procedure is an Act of Parliament. The 1911 Act remodelled the legislative process by creating an alternative route involving the Sovereign and House of Commons, subject to statutory conditions. It was therefore inappropriate to characterise the resulting legislation as delegated or subordinate legislation. The courts may examine compliance with the statutory conditions, but cannot otherwise challenge the Act on ordinary judicial-review grounds.
4. The authorities concerning colonial and Dominion legislatures, including The Queen v Burah, McCawley v The King, Harris v Minister of the Interior and Bribery Commissioner v Ranasinghe, were not strictly analogous. They did not establish a general rule requiring an express power to amend the earlier statute. The language of the 1911 Act itself controlled.
5. The court did not need to decide whether Hansard could be used under Pepper v Hart. The decision in Thoburn v Sunderland City Council concerned implied repeal and did not assist on the issue before the court. Permission to appeal was granted because of the constitutional importance and public interest of the issue. Costs were awarded to the defendant.

This was a first-instance judicial review in the Administrative Court. The court dismissed the claim and granted permission to appeal to the Court of Appeal on the basis of compelling reasons arising from the constitutional importance and public interest of the issue.