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Reflections on Jackson v Attorney General: questioning sovereignty

Published online by Cambridge University Press:  02 January 2018

Tom Mullen
Tom Mullen*
Affiliation:
University of Glasgow
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Abstract

This paper, which is based on a paper given at a seminar held at the University of Glasgow in November 2005, discusses the sovereignty of Parliament in the light of the decision of the House of Lords in Attorney General v Jackson, which considered the question of whether the Parliament Act 1949 and the Hunting Act 2004 were valid Acts of Parliament. The paper begins by explaining the background to the litigation, before going on to summarise the decision. Next, it briefly analyses the preliminary issues of standing and jurisdiction involved in the case, before going on to consider how the political background and political practice affected the decision of the House of Lords on the key questions in the case. The major part of the paper is devoted to a discussion and analysis in the light of constitutional theory of the extensive dicta in the case on the principle of the sovereignty of Parliament, which contrasts positivist and Dworkinian perspectives, and considers the question of whether the orthodox view of sovereignty is likely to be displaced in the foreseeable future by the view that Parliament’s legislative power is subject to legal constraints. The paper concludes that such a change in the rule of recognition is unlikely to come about merely because the judges change their view of the content of fundamental doctrines; changes of this nature require the assent of the other institutions of government.

Type
Research Article
Information
Legal Studies , Volume 27 , Issue 1 , March 2007 , pp. 1 - 25
Copyright
Copyright © Society of Legal Scholars 2007

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References

1. [2005] UKHL 56, [2006] 1 AC 262.

2. For detailed analysis, see A McHarg ‘What is delegated legislation?’ [2006] PL 539.

3. [2005] UKHL 56, [2006] 1 AC 262 at [24] per Lord Bingham of Cornhill.

4. Ibid, at para [25].

5. Ibid, at paras [29]–[30].

6. Ibid, at para [36].

7. [2005] EWCA Civ 126, [2005] QB 579 at [100].

8. [2005] UKHL 56, [2006] 1 AC 262 at [178]. He inclined ‘tentatively’ to the view that the Court of Appeal might be right.

9. Ibid, at [31] per Lord Bingham of Cornhill. See also para [158] per Baroness Hale of Richmond and para [31] per Lord Rodger of Earlsferry.

10. Ibid, at para [194]. Lord Steyn, although dismissing the Court of Appeal’s suggestion at para [96], expressed doubts about the use of the 1949 Act to alter the composition of the House of Lords at para [101].

11. As it did, for example, in R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1994] QB 552, which concerned the attempt by Lord Rees-Mogg to challenge the decision by the UK Government to ratify the Maastricht Treaty.

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14. [2005] UKHL 56, [2006] 1 AC 262 at [27], [49] and [110]. See [2005] EWCA Civ 126, [2005] QB 579 at [11]–[13] for discussion in the Court of Appeal.

15. This is explicit in the judgment of the Court of Appeal, which stated that in considering the effect of the 1911 Act, the Administrative Court was acting as a constitutional court; see [2005] EWCA Civ 126, [2005] QB 579 at [12].

16. [2005] UKHL 56, [2006] 1 AC 262 at [8].

17. Ibid, at para [156].

18. Ibid, at para [31] per Lord Bingham of Cornhill, para [131] per Lord Rodger of Earlsferry and para [158] per Baroness Hale of Richmond.

19. Their Lordships disagreed on whether it was appropriate to refer to Hansard in terms of Pepper v Hart [1993] AC 593.

20. Ibid. Referred to in [2005] UKHL 56, [2006] 1 AC 262 at [65].

21. The War Crimes Act 1991, the European Parliamentary Elections Act 1999 and the Sexual Offences (Amendment) Act 2000.

22. [2005] UKHL 56, [2006] 1 AC 262 at [67]–[69].

23. Ibid, at para [171].

24. Ibid, at paras [124] and [128].

25. Ibid, at para [36]. But, cf para [40].

26. [2005] EWCA Civ 126, [2005] QB 579 at [97].

27. [2005] UKHL 56, [2006] 1 AC 262 at [99].

28. (London: Butterworths, 4th edn, 2002) pp 596–605.

29. [2005] UKHL 56, [2006] 1 AC 262 at [125].

30. Since the latter is the expression used by the judges in this case, it is the one I shall use throughout this paper.

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33. 1953 SC 396.

34. Gibson v Lord Advocate 1975 SLT 134; Sillars v Smith 1982 SLT 539; Pringle, Petitioner 1991 SLT 330.

35. [2005] UKHL 56, [2006] 1 AC 262 at [104].

36. See also ibid, at paras [105] and [107].

37. Ibid, at para [159].

38. Ibid, at para [102].

39. Indeed, s 37 of the Scotland Act 1998 expressly states that the union legislation has effect subject to it.

40. See, for example, Jennings, I The Law and the Constitution (London: University of London, 5th edn, 1959) pp 140–145;Google ScholarJDB Mitchell, above n 31, pp 74–82;

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43. 1952 (2) 428 (AD).

44. [1965] AC 172.

45. Above n 32, pp 157–160.

46. Rights Brought Home Cm 3782, 1997, para 2.16.

47. [2005] UKHL 56, [2006] 1 AC 262 at [81].

48. Ibid, at para [161].

49. Ibid, at para [163].

50. Ibid, at para [113].

51. Ibid, at paras [33]–[36] per Lord Bingham of Cornhill, para [174] per Lord Carswell and para [187] per Lord Brown of Eaton-Under-Heywood.

52. Ibid, at para [102].

53. Ibid, at paras [104]–[107].

54. Ibid, at para [159].

55. R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603.

56. [2005] UKHL 56, [2006] 1 AC 262 at [102].

57. Case 26/62 [1963] ECR 1.

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63. Also in Thoburn v Sunderland City Council [2003] QB 151, the Divisional Court held that the European Communities Act 1972 was a constitutional statute by force of the common law and could not be repealed or significantly amended by implication.

64. Sir John Laws ‘Law and democracy’ [1995] Public Law 72 at 87; Lord Woolf of Barnes ‘Droit public – English style’ [1995] PL 57 at 67–69.

65. [2005] UKHL 56, [2006] 1 AC 262 at [102].

66. Ibid, at para [104].

67. Ibid, at para [107].

68. Ibid, at para [159].

69. Ibid, at para [9].

70. Ibid, at para [168].

71. See references at n 64 above.

72. [2003] QB 151.

73. [2002] UKHL 32 (unreported) at [11] and [33].

74. For analysis, see Rawlings, R Review, revenge and retreat’ (2005) 68 MLR 378.CrossRefGoogle Scholar

75. Above n 64.

76. See, for example, A v Secretary of State for the Home Department [2005] 2 WLR 87.

77. Or indeed the new Supreme Court, which will succeed it in terms of the Constitutional Reform Act 2005.

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82. HWR Wade, above n 80.

83. See, for example, Winterton, G Constitutionally entrenched common law rights: sacrificing means to ends’ in Sampford, C and Preston, K (eds) Interpreting Constitutions, Theories, Principles and Institutions (Sydney: Federation Press, 1996).Google Scholar

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86. Ibid, p 256.

87. Allan, above n 58; P Craig ‘Public law, political theory and legal theory’ [2000] PL 211.

88. Craig, ibid, pp 229–230.

89. In fact, it is possible to construct justifications for unlimited legislative sovereignty. However, for positivists, these would not form part of the rule of recognition itself.

90. Allan, above n 58, ch 11.

91. See, for example, N Walker ‘Beyond the unitary conception of the United Kingdom constitution’[2000] PL 384; Walker, N ‘The idea of constitutional pluralism’ (2002) 65 MLR 317 CrossRefGoogle Scholar;

92. Although the two cannot be completely separated if the courts have responsibility for policing the boundaries between levels of government.

93. Baroness Hale’s position is less easy to interpret. Her remarks were brief and the reasons why it might be appropriate to depart from the orthodox view were not discussed.

94. [2005] UKHL 56, [2006] 1 AC 262 at [126].

95. Lord Hope seems to employ the notion of a long-held misunderstanding only in the relation to the Treaty of Union limitation.

96. The opinion of Lord Bridge of Harwich in Factortame (No 2) may be seen as an example of this.

97. But cf Loughlin, M The Idea of Law (Oxford: Oxford University Press, 2003) p 95,Google Scholar arguing that the devolutionary arrangements of the Scotland Act 1998 potentially provide a radical challenge to the sovereignty of the UK state.

98. Or, in future, the Supreme Court.

99. Goldsworthy, above n 81, p 245

100. Above n 46, para 2.13.

101. See also dicta of Lords Bingham of Cornhill and Hoffmann in Robinson, above n 73.

102. [2005] UKHL 56, [2006] 1 AC 262 at [126].

103. Dworkin, above n 84, p 255.

104. The same could be said of the Privy Council.