Jackson v Attorney-General

16.21The appellants in this 2005 case sought to argue that the Hunting Act 2004 was not an Act of Parliament and therefore had no legal effect. Their position was that the Hunting Act had been passed under the provisions of the Parliament Act 1949. That 1949 Act itself was not an Act of Parliament because it was passed under the provisions of the Parliament Act 1911. This latter argument rested on assertions that legislation passed under the 1911 Act was in a different category from Acts of Parliament passed by both Houses and that the purposes for which the 1911 Act could be used were constrained, for example that it could not be used to amend itself or to enlarge the powers provided in it. In the leading judgment, Lord Bingham of Cornhill first considered whether the case was appropriate for a court to consider. He recognised that, had the case concerned a question of parliamentary procedure, it could have been resolved only by parliamentary inquiry, but, in his view, since instead it centred on whether the 1949 Act and thus the Hunting Act 2004 were ‘enacted legislation’ and that question depended on the statutory interpretation of the 1911 Act, the courts could, and, in the absence of any other appropriate body, should, resolve it.1

On the question itself, Lord Bingham rejected the proposition that the 1911 Act created a new category of legislation: ‘The 1911 Act did, of course, effect an important constitutional change, but the change lay not in authorising a new form of sub-primary legislation but in creating a new way of enacting primary legislation’.2

Footnotes

  1. 1. Jackson v Her Majesty's Attorney General [2005] UKHL 56, [2005] 4 All ER 1253, para 27.
  2. 2. [2005] UKHL 56, para 24.