(4) Jackson Case Flashcards
What was the significance of the case of Jackson v Attorney General?
The Jackson litigation was brought about following the prohibition on hunting with dogs, which itself stemmed from the introduction of the controversial piece of legislation the Hunting Act 2004, under the 1911 Parliaments Act procedure. The challenge brought by Jackson questioned the validity of the 2004 Hunting Act, however, as Lord Bingham explained, the real question turned on the validity of the 1949 Parliament Act which in turn depended on the validity of 1911 Parliament Act.
What was the line of argumentation in the Jackson case?
(1) The 1911 Parliament Act set down a new legislative procedure for making delegated legislation
(2) As the 1949 Parliament Act had been enacted under this legislation it was delegated and not primary legislation
(3) The 1949 Parliament Act was therefore susceptible to invalidation by the Courts
(4) It was impossible for the delegated legislation to expand on the powers allocated under the parent statute, the Parliaments Act 1949 was ultra vires - in other words the 1911 Act could not be used to modify itself
(5) Consequently, each Act passed under the Parliaments Act as amended in 1949 was not only delegated legislation, but also invalid as each had been purportedly implemented under the void terms of the 1949 amendment
What was the argument presented by the Attorney General in the Jackson Case?
He argued that the Parliaments Act created a new method of creating an Act of Parliament. It was suggested that the validity of the procedure for the enactment of Primary Legislation had been borne out by its acceptance (and acceptance of the Acts subsequently enacted under its provisions) over a period of more than 50 years by constitutional actors.
What was the crux of the constitutional issue in the Jackson case?
The crux of the two arguments came down to whether Parliament could be so flexible as to redefine itself in order to enact primary legislation. Does Parliament necessarily have to comprise of the House of Lords, Commons and the Monarch or can it enact Primary Legislation through the Commons and Monarch alone, provided the manner and form requirements of the Parliament Acts were adhered to.
What issues in regards to the jurisdiction of the courts arose in the Jackson case?
There was a question over whether the courts actually even had jurisdiction, in the Jackson Case, to inspect and investigate the validity of instruments that, at first glance appear to be, and on closer inspection are, Acts of Parliament.
How did the approaches of the Court of Appeal differ in regards to explaining the actions/jurisdiction of the court?
In answering this question the Court of Appeal noted that it was exercising a ‘constitutional’ jurisdiction and operating in an entirely unpredecented manner. Lord Bingham in the House of Lords took a different approach, he suggested that the question for the courts to address was not whether enacted legislation was valid, but whether the measures at issue were ‘enacted legislation’ at all.
What were the findings in the Jackson case?
- The 1949 Parliament Act and the Hunting Act 2004 held as valid pieces of primary legislation enjoying the same status as acts adopted by parliament as traditionally construed.
- The effect of this limitation was to create a parallel method to create primary legislation rather than to create a means by which delegate legislation could be created - again as the claimant argued.
- The only restrictions to the Parliament Acts were those expressly referred to in s.2(1) of the 1911 Act.
What reach did the Court of Appeal give to the Parliament Acts?
The Court of Appeal had found that the use of the Parliament Acts procedure was limited by (a) the express provisions of the Act itself and (b) by the implied restriction that the procedure could not be used to give effect to ‘fundamental constitutional change’
What reach did the House of Lords give to the Parliament Acts?
The House of Lords took a slightly different approach to the Commons on this front. They said that the only limits to the procedure were those expressed in the provisions of the act itself.
What did Baroness Hale say about the reasoning of the Court of Appeal in regards to the scope of the Parliament Acts?
Baroness Hale said that ‘history … clearly indicates that it was always contemplated that the procedure might be used to bring about constitutional change’. Any distinction therefore between constitutional change already brought about using the procedure and the ‘significant constitutional change’ envisaged by the Court of Appeal was likely to be arbitrary and without foundation in the Act itself or its past uses.
To what extent does the 1911 Parliament Act enable legislative action without the consent of the House of Lords?
The potential range of legislative ambitions that could be achieved without obtaining the consent of the House of Lords is undoubtedly extensive. However, Lord Hope noted that all legislative competence is only exercisable subject to the demands, pressures and potential repercussions of the political process.
How did the Jackson case implicitly acknowledge the legitimacy of manner and form restrictions?
The words of Lord Steyn and Baroness Hale in particular acknowledge this. Indeed, such limitations can be either as a matter of legal doctrine, a recognition of political reality, or a combination of both.
How did the Jackson Case draw into sharp focus the discrepancy between constitutional principle and practice?
Lord Hope - ‘It is impossible for Parliament to enact something which a subsequent statute dealing with the same subject matter cannot repeal. But there is no doubt that, in practice, and as a matter of political reality, the 1911 Act did have that effect.’
How does the Jackson Case and decision on the 1911 Act have implications for the ability of Parliament to redefine and limit itself?
The Parliament Acts ask us to attribute the characteristics of legislation passed by a sovereign parliament, to legislation passed under a parallel mechanism which is explicitly limited in its scope. We can perhaps only accept this if we also accept that Parliament can redefine itself for the purpose of enacting legislation. If Parliament can redefine itself in this way, and the courts will accept legislation passed by Parliament so redefined, then we must also accept that in order to enact legislation without the consent of the House of Lords, Parliament is bound by the provisions of the Parliament Acts in order for that legislation to be valid. If the manner and form requirements of the Parliament Acts are - for the time being - apparently effective and policed by the courts, then surely it is open to Parliament to impose other comparable limitations on itself.
