The Significance of Public Law: R. Jackson versus Attorney General - Case Study Example

The Significance on Public Law: R (Jackson) v Attorney General [2005] “The principle of parliamentary sovereignty means…that Parliament has under English constitution, the right to make or unmake any law whatever, and, further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.”1 A.V. Dicey (1885) Parliamentary Sovereignty is accepted as a rule of law by the judiciary, as their dedication to uphold it within the court system remains stable and visible. A.V. Dicey (1885) represents a legal-theoretical standpoint by which he believed that parliamentary sovereignty was the key that unlocked the very composition by which the legislation passed by parliament would remain supreme and that all laws must conform to legislation enacted by parliament. For Dicey, “there are no limits to the substance of statute law; Parliament can make any law that it wishes…House of Lords is as authoritative as legislation which receives unanimous support.”2 Dicey’s approach to sovereignty is deduced within three basic rules: (a) parliament is the supreme law making body and may enact laws on any subject matter; (b) no parliament may be bound by a predecessor or blind successor; (c) no person or body—including a court of law—may question the validity of parliament’s enactments.3 Dicey’s rules suggest that there is no limitation binding parliament on the subject matter by which parliament may legislate. Dicey’s third rule offers parallel insight to that of Barnett, a theorist, who claims: “Sovereignty is…thus the fundamental rule of common law, for it is the judges who uphold Parliament’s sovereignty.”4 Likewise, Sir Ivor Jennings may ultimately bring a clearer vision to both Dicey and Barnett, as he creates this scenario: “If a prince has supreme power, and continues to have supreme power he can do anything, even to the extent of undoing the things which he previously has done…But if the prince has not supreme power, then the rule is that the courts accept as law that which is in the proper legal form, the result is different…Legal sovereignty is merely a name indicating that the legislature has for the time being the power to make laws of any kind in the manner required by law.” 5 Jennings’ idea evaluates the proper legal procedures by which parliament may pass legislation and that courts will follow it as long as the requisite legislative stages have been met. Jennings’ view questions the traditional Diceyan view, as he claims that there is a difference—the courts have no concern with sovereignty, but only with the established law.6 Moreover, the Burmah Oil Company v Lord Advocate [1965] case demonstrated Parliament’s power to legislate with retrospective effect, as with the War Damages Act 1965.7 The court had defined intentional damage and war damage, which left the government at fault for the destruction of property during the war. The War Damages Act 1965 overruled the decision of the House of Lords as such. Clearly, Dicey’s approach to parliamentary sovereignty has taken shape throughout developments of the twentieth century as such. Similarly, in the Pickin case [1974], Lord Wilberforce held: “If a Bill has been implemented and received the royal assent then it is the law and cannot be challenged by the courts”.8 The statement provided by Lord Wilberforce strongly connects with Dicey’s third rule that “no person or body—including a court of law—may question the validity of parliament’s enactments”. However, in Ellen St. Estates v Minister of Health [1934], the case dealt with both the 1919 Housing Act and the 1930 Housing Act of the same name. Accordingly, some sections within the 1930 Act were incompatible with the 1919 Act; however the idea of implied repeal was followed, in that the courts would not follow the earlier Act because it was impliedly repealed by Parliament to follow the new 1930 Act. The term leges posteriors priores contrarias abrogant takes shape here, as it suggests that where any conflicts between Acts of Parliament arise, which cannot be smoothed out by judicial interpretation, then the later Act will always take precedence. Lord Justice Maugham said: “The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal.”9 Similarly, the case of R (Jackson) v Attorney General [2005] shows a continued reluctance of the courts to question parliament and their procedures. The case arose from an enactment of the Hunting Act 2004, which prohibited hunting with dogs in the United Kingdom. Jackson was a ‘master of the hunt’ and he had claimed that this act was not valid because it was passed using a procedure which was itself passed by Parliament Act 1911. As such, if any public bill was passed three times by the Commons, but thrown out by the Lords, then it could still go through for Royal Assent. However, the Parliament Act 1949 reduced the time that the Lords could delay, making two times instead of three the limit. Jackson claimed that the Hunting Act 2004 was passed two times instead of three and it was not valid because the procedure was taken from the 1949 Act, which he also claimed to be invalid.10 As such, the basic argument was that the 1949 Act was itself invalid on the basis that it did not receive the consent of the House of Lords, and the Parliament Act 1911 did not permit an Act such as the 1949 Act to be enacted without the consent of the House of Lords.11 Thus, although the Hunting Act gave rise to the case, the underlying issue was really the validity of the 1949 Act, which depended on the effect of the 1911 Act. However, the Lords held that it was far too late to challenge the 1949 Act, because it has been used so many times. But the words in the legislation in the 1911 Act and 1949 are perfectly clear and without ambiguity. There was no principle which prevented a legislature from altering its own procedures or even its own composition. The normal procedure for the enactment of statute is that a Bill must be ‘read’ and passed three times by each House, Commons, and Lords, and will then receive the royal assent. Thus, Acts of Parliament are formally made by the Crown, the Lords and the Commons acting together.12 Since the Parliament Act 1911, however, the Commons and Crown have had a limited power to legislate without consent of the House of Lords. Colins suggests that: “if the Commons passes a Bill which is then repeatedly rejected by the Lords, after a certain period the bill may nonetheless proceed to receive royal assent despite the opposition of the House of Lords”.13 The purpose of the 1911 Act was to replace the Lords’ veto over legislation with a power to delay the legislation.14 The case represents an interesting situation, whereby Parliament is even sovereign in its own sense because it can ultimately change itself and its composition. Lord Bingham claimed: “First, in Pickin, unlike the present case, it was sought to investigate the internal workings and procedures of Parliament to demonstrate that it had been misled and so had proceeded on a false basis. This was held to be illegitimate…The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involved no breach of constitutional propriety”.15 Likewise, Lord Nicholls stated that: “At first sight a challenge in court to the validity of a statute seems to offend the fundamental constitutional principle that courts will not look behind an Act of Parliament and investigate the process by which it was enacted. Those are matters for Parliament, not the courts….The authorities establishing this principle can be found gathered in Pickin v British Railways Board [1974] AC 765…In the present case the claimants do not dispute this constitutional principle…the proper interpretation of a statute is a matter for the courts, not Parliament…”.16 Moreover, several judges voiced doubts about the doctrine of parliamentary sovereignty in their judgements.17 Lord Steyn observed that the “classic account…purse and absolute as it was, can now be seen to be out of place in the modern United Kingdom”, while Lord Hope held that “parliamentary sovereignty is no longer, if it ever was, absolute”, and Lady Hale said that “the courts will treat with practical suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”.18 There was a nine-member panel of the House of Lords to deal with this constitutional issue. What was held can be summarized by Lord Bingham, as he claimed: “The overall object of the 1911 Act was not to delegate power: it was to restrict, subject to compliance with the specified statutory conditions, the power of the Lords to defeat measures supported by a majority of the Commons…”.19 In assessing the precise significance of Jackson is not quite simple. It is not clear how many judges hold the same vision as Lord Steyn, Hope and Hale. It can also be said that the courts might ignore the doctrine of parliamentary sovereignty in circumstances that are too extreme and so unlikely to even occur. However, the case of Jackson appears to be part of a process of much wider scope by the British judiciary of their proper role in governance.20 It appears that the courts can decide whether statutory requirements have been complied with even where they related to parliamentary processes. The dicta in Jackson are likely to prevail if the government attempted to tamper with fundamental principles of our constitutional democracy, such as five-year parliaments, the role of the ordinary courts, the rule of law, among others.21 The underlying issue remains: can Parliament bind its successors? The orthodox perspective is that it cannot.22 The Parliament which is supreme is the current one, and so it will have the power to repeal the legislation of any previous Parliament. If they enact something inconsistent with an earlier Act, the courts treat it as implied repeal.23 In the end, there is a significant value to the case of Jackson [2005] because Constitutional law is a branch of Public law, which deals with individuals and the state. The case opens the view that perhaps Parliament is even sovereign in its own sense because it can ultimately change itself and its own composition. Word Count: 1791 Read More