Major constitutional significance

Having Regard To Legal, Including The Articles Referred To Below, Critically Analyse The Impact Of R (On The Application Of Jackson) V Attorney General [2005] Ukhl 56 On Parliamentary Supremacy In English Law Today

Jackson v Attorney General is a case of major constitutional significance. House of Lords judges were assigned the task of deliberating whether the Hunting Act 2004 was a lawful Act of Parliament. It had been made an offence under the Act to hunt wild mammals with dogs except within limited conditions. The Bill was forced through without the consent of the House of Lords using a process under the Parliament Acts of 1911 and 1949. The appellants requested affirmation from the judges that the Hunting Act was not a valid Act of Parliament.

The House of Lords refused to make the declaration, maintaining that the 1949 Act had been validly sanctioned using the 1911 Act and that the Hunting Act had been validly ratified using the amended process. The central issue may be deemed a subject of legislative interpretation, specifically, the meaning and consequence of the 1911 Act. What makes Jackson remarkable however, is the broad range of matters associated with Parliamentary supremacy that were discussed.

This debate of the broader issues indicates that a divergence from orthodox views on the fundamentals of the UK's constitutional order may be gaining support in the House of Lords. It is the contention of this essay to analyse the extensive dicta in the case, touching on academic perspectives on the character of law and legal structures, in order to consider the impact of Jackson on parliamentary supremacy today.

One of the initial issues in the case was the factor of justiciability. Did the courts have authority to contest the legality of an Act of Parliament? It is a recognised convention that the courts will not look behind an Act of Parliament to scrutinize the method of enactment. The Attorney General chose not challenge the point, and despite concern, the courts accepted that they had jurisdiction. Although these issues were not contested, the consequence of the House of Lords' judgment is liable to lower the barriers to litigation, and corresponds elegantly with the mounting readiness of some judges to see their role, where necessary, as a constitutional court.

The orthodox notion of the sovereignty of Parliament, as articulated by Dicey, is as follows: First, Parliament can make/unmake any law whatsoever. Secondly, no body is competent to set aside an Act of Parliament. In the orthodox notion no law, no matter how fundamental, is invulnerable from modification. His view is that ‘Parliament does constitute the supreme legislative authority or power in the British constitution...' This view, which arguably takes its roots from John Austin, was that the law making powers cannot be derived from, or conditioned by, any superior authority or anterior legal rule.

Over the years, certain challenges to the orthodox view have developed. These include the position that Parliament's power to legislate is inhibited by the Treaty of Union, by membership of the EU, as well as by fundamental principles embedded in common law. In recent years some writers have argued for theories of the British constitution based on the principle of legality (‘the rule of law'). But it is questionably the judgment in Jackson that signifies the first explicit judicial endorsement of this position. For the first time, acting in their official capacity, judges have suggested that the courts may have the authority to strike down an Act of Parliament.

Lord Hope argued, ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.' He continues, ‘Parliamentary sovereignty is no longer, if it ever was, absolute … Step by step … the English principle of the absolute legislative sovereignty … is being qualified.' If the ‘rule of law' is the ultimate factor, then it is this, and not Parliamentary supremacy, that is responsible for the respective powers of Parliament and the courts. Baroness Hale concurred, ‘The courts will treat with particular suspicion any attempt to subvert the rule of law.' Lord Steyn, perhaps the most candid, stated, ‘supremacy of Parliament is still the general position of our constitution. It is a construct of the common law. The judges created this principle...' If we acknowledge the veracity of the dicta, and accept that the principle of legality limits the power of Parliament, then the concept of Parliamentary sovereignty is entirely redundant.

Although there are disparities between the justifications offered by the three judges, all three appear to agree that the sovereignty of Parliament, which is ultimately in the custody of the courts, has evolved to the point where the Diceyan notion of parliamentary supremacy no longer reflects the true constitutional position. Does this mean that following Jackson, the common law confers upon judges the power to strike down legislation that is contrary to the rule of law? In order to discover the answer to this question, it is necessary to consider issues of legal theory, and relate these to the dicta on sovereignty in Jackson.

In recent times, academic writers on the UK constitution have explained their views predominantly in terms of two opposing theoretical perspectives on the character of law and legal structures. That of Ronald Dworkin's theory of law as integrity and HLA Hart's legal positivism.

For Hart, the most fundamental rule within a legal system is the 'rule of recognition'. This rule informs us what is valid as law. To determine that a rule of recognition exists in a legal system is to suggest it is acknowledged as binding by senior officials of that system, as a ‘matter of political fact', and that their judgments are commonly observed by others. Opposing the Austinian account, Hart argues that the powers of Parliament derive from a rule that is logically prior to those powers. Hart then, moves away from the idea of sovereignty towards the idea of ‘government under law' or legality.

Other writers have applied Dworkin's theory of law as integrity to explain the UK's constitution. According to Dworkin, law is comprised not solely of duties and rights, but of the principles required to rationalise them. In each political society, there are values of fairness and justice that afford the best explanation of that community's legal practice. Whilst both views insist that any account of a constitutions elementary rule must be coherent with history, they differ as to the methodology. Dworkin introduces a second stage of analysis, the ‘justification requirement'. Using Dworkin's theory academic writers such as Craig have argued that Parliament has sovereign authority providing there is requisite normative justification for that power. Allan goes even further by suggesting that judges are not compelled to give power to statutes that contravene these deeper principles.

In Jackson only Lord Hope directly tackled issues of legal theory, and whether his logic was fundamentally Dworkinian or positivist is hard to say. Although he refers openly to the rule of recognition and to Harts' The Concept of Law, he seems to assign it a Dworkinian slant when he states that the rule of law, ‘underpinned by what others have referred to as political reality, depends on the legislature maintaining the trust of the electorate.'

Both Lords Steyn and Hope rejected unlimited Parliamentary supremacy by reference to contemporary constitutional developments (the Human Rights Act 1998, the Scotland Act 1998 and Factortame). Lord Steyn deduced that Dicey's explanation 'can now be seen to be out of place in the modern constitution'. Equally, Lord Hope refers to the Diceyan concept being qualified step by step (including the Human Rights Act 1998 and the European Communities Act 1972) and the rule of law being the supreme controlling factor on which the constitution is founded. The attitudes of Lords Hope and Steyn, in contradiction to the position of Wade, suggest that changes to the rule of recognition can occur by evolution rather than revolution. They imply that several vital steps have already been taken and restrictions on the supremacy of Parliament would not be a great leap.

This contention has a number of limitations. First, whilst it is now widely accepted that orthodox view has been revised in the light of membership of the EU, the effects of the Scotland Act 1998 and the Human Rights Act 1998 are less convincing. They were, after all, written within the assumptions of an orthodox view of sovereignty. The second weakness is the failure to understand that limitations of sovereignty have been a consequence of political decisions laid down in statute. It is a huge step from stating that Parliament has limited its own powers to suggesting that the courts might have this same authority. Whilst the three judges make reference to human rights protection, and imply that the legislative power of Parliament has been limited, the dicta is confusing, with no one identifying the extent or nature of that limitation.

The arguments of Judges Steyn and Hope falter from both positivist of Dworkinian perspectives. They work solely on the premise that it is for the courts to establish the rule of recognition without regard to the other branches of government or the people. Positivists would argue that the ultimate criterion of legal validity and political power is an empirical survey of what most judges and officials accept, and that this principle was neither created by the courts nor is it in the sole keeping of the courts. As Goldworthy notes, judges are no more qualified than Parliament to be ultimately responsible for all law, and that such a rejection of parliamentary supremacy is unlikely to be submissively accepted by other government branches. The Hartian objection to Lords Hope and Steyn, he suggests, are that it is clear that each branch of government accepts, and has historically accepted, that Parliament is sovereign.

Dworkian proponents would argue that this standard cannot be empirically determined, but that it must be a principle of public morality. To suggest a ‘standard of official behaviour, would be counterintuitive. To do so would imply that given acceptance by officials, Parliament could mean anything. Furthermore, in Jackson, we see at least five approaches by the judges when interpreting section 2(1) of the 1911 Act. It is difficult to argue that these are empirical disagreements about what most officials think, or encapsulate any definitive set of rules. Both Hart and Dworkin however, suggest that governments and officials must exercise their power in accordance with legal principles that are established prior to that power. They differ as to the value of that principle. Under Dworkins theory any judicial statement of what the law is must be congruent with the existing legal resources as well as the legal history of the political community. To justify that the courts have the power to review legislation using the rule of law, may be deemed to be a perverse interpretation of political history and important legislative texts. In fact both Lord Bingham and Lord Carswell observed the principle of sovereignty in orthodox terms and appeared to indicate that they had misgivings about the opposition to the orthodox position.

So, what is the impact of Jackson in terms of the UK constitution? One could argue that all it does is to clarify the scope of the Parliament Acts. However, Jackson is more significant. The fact that the courts were prepared to evaluate the authority of an Act of Parliament suggests that it can be seen as an expansion of the jurisdiction of the courts into the political arena, confirming the idea of a ‘constitutional court'. Secondly, the fact that three senior judges were moved to make comments on the sovereignty of Parliament is unquestionably significant. Whilst they failed to entirely agree, they concurred in proposing that the rule of law might be a substantive constraint on Parliamentary supremacy. However, there are clear differences between the judges as to the extent of their new role. Moreover, it is not clear that any of the opinions that advocate limitations on the sovereignty of Parliament, make sense in any theoretically convincing way. Important as Jackson is, it is probably too early to disregard the Diceyan view of Parliamentary supremacy as we have known it.