Jackson and others (Appellants) v. Her Majesty's Attorney General (Respondent)

Legislation enacted under the procedure in section 2(1) of the Parliament Act 1911 is primary legislation. Subject to the express exceptions, that procedure may be used to amend the conditions governing its own use. The Parliament Act 1949 was therefore validly enacted and the legislation subsequently passed under the amended procedure had full legal effect.

The courts may determine whether legislation purportedly enacted under the 1911 procedure falls within the authority conferred by that Act. That is a question of statutory interpretation, distinct from questioning parliamentary proceedings or the Speaker’s conclusive certificate of procedural compliance.

The scope of section 2(1) does not depend upon whether a constitutional amendment is modest or fundamental. A majority nevertheless considered, obiter, that the procedure could not be used in two stages to evade the express prohibition on extending Parliament beyond five years.

The appellants, whose interests were affected by the prohibition on hunting wild mammals with dogs, sought declarations that the Parliament Act 1949 and, consequently, the Hunting Act 2004 were legally ineffective. The 2004 Act had been enacted without the consent of the House of Lords under section 2 of the Parliament Act 1911, as amended by the 1949 Act.

The Divisional Court refused the declarations in [2005] EWHC 94 (Admin). The Court of Appeal also rejected the challenge in [2005] EWCA Civ 126, [2005] QB 579, although it held that the 1911 procedure authorised only relatively modest amendments to the relationship between the two Houses.

The central questions were whether legislation enacted under section 2 was subordinate or primary legislation; whether the procedure could be used to amend section 2 itself; whether its use was subject to unstated constitutional limitations; and whether the courts had jurisdiction to decide those questions.

1. Appeal dismissed unanimously. The Parliament Act 1949 and the Hunting Act 2004 were Acts of Parliament of full legal effect.

2. Per Lord Bingham, Lord Nicholls, Lord Steyn, Lord Rodger, Baroness Hale, Lord Carswell and Lord Brown, with Lord Walker concurring in the disposition, legislation enacted through section 2(1) of the Parliament Act 1911 is primary legislation. The 1911 Act created an alternative route for enacting an Act of Parliament. It did not delegate subordinate law-making power to the Commons. Its object and effect were to restrict the House of Lords’ power to prevent legislation from receiving Royal Assent.

3. The courts had jurisdiction to decide whether the 1949 Act was authorised by section 2(1). That was a question of statutory interpretation, distinct from investigating internal parliamentary proceedings. The Speaker’s certificate conclusively established procedural compliance under sections 2(2) and 3, but did not foreclose judicial determination of the antecedent question concerning the statutory scope of section 2(1).

4. The expression “any Public Bill”, read in its statutory and historical context, included a Bill amending section 2 itself. The Act expressly excluded Money Bills, Bills extending Parliament beyond five years and Bills confirming Provisional Orders. It contained no corresponding exclusion for Bills amending the 1911 procedure. No principle concerning delegates enlarging their powers applied because neither the Commons nor the legislature operating under section 2 was a subordinate delegate.

5. The House rejected the Court of Appeal’s distinction between modest amendments and constitutional changes of a fundamentally different nature. That distinction lacked support in the statutory language and history, and would introduce an uncertain question of degree unsuitable for judicial or Speaker certification. The 1911 Act had itself been intended to facilitate major constitutional legislation.

6. Lord Nicholls, Lord Steyn, Lord Hope, Baroness Hale and Lord Carswell considered that the express exclusion of a Bill extending Parliament beyond five years necessarily prohibited achieving that result indirectly through two Bills. Lord Bingham disagreed; Lord Rodger reserved his opinion. The point was unnecessary to the decision.

7. Lord Steyn, Lord Hope and Baroness Hale discussed possible constitutional limits associated with parliamentary sovereignty and the rule of law. Those observations were expressly unnecessary to the appeal and did not establish a further ratio concerning legislation abolishing judicial review, the courts or the House of Lords.

2. House of Lords: Dismissed the appeal unanimously and held that the Parliament Act 1949 and the Hunting Act 2004 were valid Acts of Parliament: [2005] UKHL 56.
3. Court of Appeal: Dismissed the appeal, holding that the 1911 procedure permitted the relatively modest amendment made in 1949 but suggesting limits upon more fundamental constitutional changes: [2005] EWCA Civ 126, [2005] QB 579.
4. Divisional Court: Refused the declarations sought and held that the 1911 procedure was wide enough to authorise the 1949 amendment: [2005] EWHC 94 (Admin).