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

This judicial review challenged the validity of the Parliament Act 1949 and, derivatively, the Hunting Act 2004 on the basis that the 1949 Act had not been lawfully enacted. The claim advanced three principal grounds: (1) that section 2 of the Parliament Act 1911 could not be used to amend itself by permitting the procedure to amend the 1911 Act, (2) that Acts passed under the 1911 procedure were in truth delegated or subordinate legislation and so could not enlarge the conditions of their own authority, and (3) that the Sovereign and the House of Commons constituted a subordinate legislature which could not, in the absence of express power, amend the conditions upon which its power was granted.

The court rejected each ground. It held that the clear language of section 2(1) of the 1911 Act (referring to "any Public Bill") is wide enough to embrace a Bill amending the 1911 Act; that an Act passed pursuant to the Parliament Acts is an Act of Parliament and not properly characterised as delegated legislation in the ordinary sense; and that authorities concerning subordinate colonial legislatures were not analogous and did not prohibit the 1911 Act being used to amend itself. The court therefore concluded that the 1949 Act was valid and the Hunting Act 2004 was lawfully enacted.

Background and procedural posture: The Hunting Bill, later the Hunting Act 2004, was passed by the House of Commons and ultimately received Royal Assent on 18 November 2004 after the Speaker issued a certificate pursuant to section 2 of the Parliament Acts. The Hunting Act was due to come into force on 18 February 2005. The claimants sought judicial review contending that the Hunting Act was invalid because it had been enacted under the Parliament Act 1949, which they alleged had itself been invalidly enacted.

Nature of the claim and relief sought: The claimants sought declarations that the Parliament Act 1949 is not an Act of Parliament and therefore without legal effect, and that the Hunting Act 2004 is likewise of no legal effect.

Issues framed by the court: The court identified three legal issues: (i) the proper construction of the Parliament Act 1911 (in particular section 2) and whether it permitted amendment of its own terms, (ii) whether enactments under the 1911 procedure are properly to be regarded as delegated legislation and hence incapable of amending the conditions of their enabling statute, and (iii) whether principles applicable to subordinate colonial legislatures prevent the use of the 1911 procedure to amend the 1911 Act.

Court’s reasoning and subsidiary findings:

• Construction: The court concluded that the express wording of section 2(1), notably the reference to "any Public Bill", is sufficiently wide to include a Bill to amend the 1911 Act. The Preamble did not operate as a self-denying ordinance preventing such use of section 2. The Speaker's certificate regime (section 3) reinforced the statutory framework.
• Delegated legislation argument: The court rejected the characterisation of Acts passed under the Parliament Acts as delegated legislation. It held that the 1911 Act redefined the legislative process, creating an alternative route to the creation of an Act of Parliament; statutes enacted under that procedure are themselves Acts of Parliament and are treated as such for most purposes (including under the Human Rights Act 1998 as public general Acts).
• Subordinate legislature argument: Authorities concerning colonial or dominion legislatures did not provide a principle preventing amendment of the 1911 Act by the 1911 procedure. The court returned to the text of the statute and found no prohibition on amendment beyond the express exclusions in section 2(1).
• Other points: The court considered but did not need to decide whether Hansard (Pepper v Hart) was admissible; it noted historical parliamentary debates in 1911 which showed Parliament addressed the point and had rejected attempted express exclusions. It also noted prior Acts enacted under the 1949 Act had not been successfully challenged and had been treated as valid in subsequent legislation.

Disposition: The application for judicial review was dismissed. Permission to appeal to the Court of Appeal was granted on condition and timetable set for filing the Appellants' Notice and skeleton arguments.

This was a first instance judicial review. The court dismissed the claim. The court held that the Parliament Act 1911, properly construed, permits the procedure in section 2 to be used in relation to a Bill amending that Act; that Acts enacted under the Parliament Acts are Acts of Parliament and not delegated legislation in the ordinary sense; and that authorities concerning subordinate colonial legislatures do not prevent the 1911 Act being used to amend itself. Accordingly the Parliament Act 1949 is valid and the Hunting Act 2004 was lawfully enacted.

Permission to appeal to the Court of Appeal was granted by the High Court. The court required the Appellants' Notice to be filed by 2 February 2005 and set an indicative hearing date in the Court of Appeal of 8 February 2005. (As recorded in the judgment.)