R (Jackson) v Attorney General [2005]

R (Jackson) v Attorney General [2005] UKHL 56 is a House of Lords case clarifying that there were no limits to the type of legislation that could be passed using the Parliament Acts except for the express limitations contained in the legislation.

In 2004, the Hunting Act was enacted to prohibit fox hunting. Although this bill received support in the House of Commons, it received continual opposition in the House of Lords. The Parliament Act 1949 was used to bypass the House of Lords’ ability to delay bills, and subsequently the bill received royal assent.

The claimant, Jackson, brought a claim on behalf of the Countryside Alliance and the pro-fox hunting lobby, attempting to assert that the Hunting Act 2004 was invalid as Parliament Acts procedure could not be used to effect fundamental constitutional changes.

Both the Divisional Court and the Court of Appeal rejected the claim. This decision was upheld by the House of Lords ruling that legislation passed using the mechanisms in the Parliament Acts are primary legislation, rather than subordinate, and thus their validity would not be impeded were the Parliament Acts unlawful. Therefore, the Parliament Act 1949 had been validly passed using the Parliament Act 1911 and the Hunting Act was consequently also held to be an Act of Parliament.

The significance of the case is that it poses three challenges to the sovereignty of Parliament:
  1. Courts can decide whether an Act of Parliament is valid or not, meaning courts have the power to strike down an Act of Parliament.
  2. Future Parliaments may be bound by a previous Parliament because Parliament is required to follow the procedure laid out by previous Parliaments in Acts of Parliament.
  3. Courts might have the authority to strike down an Act of Parliament if it violated fundamental constitutional principles, which means Parliament is bound by those principles.

In this case, the court held that it had jurisdiction to examine the validity of the Hunting Act as a question of statutory interpretation, whether the 1911 Act could be used to enact the 1949 Act. This was a significant challenge to the orthodox view of parliamentary sovereignty, expressed by Albert Venn Dicey, that Parliament can make and unmake law on any topic and that no body can make a higher form of law than Parliament or set aside primary legislation.
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