IMPLIED LIMITATIONS ON LEGISLATIVE POWER: within the matrix of

Jackson v Attorney General – The Hunting Act 2004

- Anne Twomey

UK follows the principle of Parliamentary Supremacy/Sovereignty. All laws in UK

including the ones on fundamental rights have to conform to this directive. Also English

Courts are not allowed to adjudicate upon the validity of any law/amendment passed by

the British Parliament. The Parliamentary Acts of 1911 and 1949 are a part of the British

constitution and the main purpose with which they were passed was to limit the power of

the House of Lords to veto/suspend the actions (in terms of passing of bills) of the

Commons. The Hunting Act 2004 was passed to ban fox hunting using dogs. This

legislation was challenged by the pro – hunting activists as was the 1949 Act on the

grounds that it subverted certain provisions of the 1911 Act and hence was not valid.

This particular challenge got the importance it did because

The British Courts (appeal and Lords) viewed this matter as justiciable.

They read implied limitations from the 1911 Act into the power of the legislature

to make laws under the Act

Consequently they implied that the concept of Parliamentary Supremacy had

limitations.

There was a definite procedure by which any law could be passed by the British

Parliament. Initial procedure required that the bill be passed by both Commons and Lords

before it was sent to receive the Royal assent and that the whole procedure took 3

successive sessions and 2 years. The 1949 Act reduced this to 2 sessions and 1 year and

was sent for royal assent without any referral to the Lords. Now the Hunting Act was

challenged on the grounds that it was passed pursuant to the procedure in the 1949 Act

and was hence invalid as the 1949 Act (which consisted of amendments to the 1911 Act)

itself was invalid.

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The rule in Britain is that the courts do not have the jurisdiction to look into the validity

of an act of Parliament. However this does not extend to subordinate legislation – that

legislation passed in pursuance of the provisions of an Act. In such cases the courts can

look into whether there existed competence on the part of the legislature to pass that

particular law.

So a primary question in the Fox Hunting Case was whether the legislature could review

the validity of the legislation made pursuant to the 1911 Act.

The court conceded to justiciability saying it was a matter of statutory interpretation. The

appellants argued that the courts could review the Acts because they were subordinate in

nature to the 1911 Act. However this argument was rejected by the Lords as the 1911 Act

provided that any law/Act passed according to the procedure it laid down would be an

Act of Parliament and such an Act; felt the Lords would be primary legislation. As this

declaration effectively took away the power of judicial review, the courts decided to

extend their powers to allow them to look into primary legislation and in doing so they

modified the previous rule in Britain that all Parliamentary legislations are supreme.

When the House of Lords rejected the view that the 1949 and Hunting Act were

subordinate legislations, they in effect undermined the principle of parliamentary

sovereignty and increased their own jurisdiction. Moreover they read implied restraints

into primary legislation.

Though both the Court of Appeals and House of Lords upheld the validity of the 1949

Act and the Hunting Act 2004, members of both courts took the view that some limits

must apply to the power of the House of Commons (with the assent of the Queen) to

enact laws that are ‘undemocratic’ or which remove the express limitations imposed by

the 1911 Act on the exercise of powers under that Act.

The 1911 Act makes no provisions for the passing of a bill that will extend the life of the

Commons without needing them to refer this bill to the Lords as well for their consent.

Also there is no express limitation in the Act to prevent the legislators from using the

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process set out by the Act to amend the Act itself. So if you really think about it, using

the procedure established in the 1911 Act the House of Commons can pass a law which

can abolish the House of Lords and consequently can also pass a law by which it can

repeal the provision of “extension of life with consent of Lords” criterion and extend its

life without the consent of the Lords. When this particular fact is taken into consideration

it seems that there is no effective limitation on legislative power, but the Appellate Court

thought otherwise.

So in light of this the Court of Appeal had to examine if there was any other limitation on

the authority of the Commons to enact a law that would extend its life without consent of

the Lords, and if there was a similar limitation on its ability to enact a law that would

abolish the Lord. While the Court said that the intention of the 1911 Act had never been

the latter, if such a thing actually did occur then it would be within the jurisdiction of the

court to look into such an enactment. The question was how, then, to determine what was

the extent of the limitation on the powers of the House of Commons under the 1911 Act

to amend that Act.

The court tried to answer this question by differentiating between fundamental

constitutional changes which would require the whole parliament i.e. the Lords and

Commons and modest changes which could be brought about using the procedure as set

up by the Act of 1911.

A point in favour of the argument that the procedure could be used to amend the Act

itself was that there had been amendments moved during the drafting of the Act that took

away this power to amend the act itself but these proposed amendments had been struck

down, hence implying that the act could be amended by its own procedure. However the

counter argument to this is that the 1911 Act had given powers to the Commons subject

to certain restrictions, and the Commons could not use this very power to sweep away the

restriction that had been instituted on the use of this power.

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The house of Lords rejected the distinction made by the Appellate Court saying that it

was unworkable in practice and having done so it tried to figure out if an implication

could be drawn which would constrain the use of the Parliament Acts procedure to

amend the 1911 Act itself, and if so, how such an implication might develop.

Various lords took different views on whether the procedure in the act could be used to

amend the Act itself. Lord Bingham was opinion that it could be used and that it could be

used even to repeal the provision that the term of the Commons could be extended

contingent on the consent of the Lords. But the contradiction lies in the fact that he

supported the idea that these amendments would be justiciable. If these amendments were

indeed Acts of Parliament, then they excluded review.

The judges mostly upheld that the act’s procedures could be used to amend itself but

added a caveat that the parliamentary supremacy that this decision implied was subject to

democratic legitimacy. The parliament could not use its supreme law making powers

which it justified on the grounds of democracy to destroy the very democratic institutions

that created it.

Lord Hope, although not quite as direct in his warning about the flagrant use of

legislative power, agreed that parliamentary sovereignty was no longer absolute in the

United Kingdom and that its Constitution was not ‘uncontrolled’.66 He accepted that the

rule of law, enforced by the courts ‘is the ultimate controlling factor on which our

constitution is based.’ He saw it as protecting the individual from arbitrary government,

and considered that the fact that the courts were prepared to hear this appeal indicated

that the ‘courts have a part to play in defining the limits of Parliament’s legislative

sovereignty.

Another method used to show the implied limitation in the 1911 Act was to go back to

the source of the Act, the intention the framers had when drafting the Act by using

Parliamentary Records.

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The only important thing to note here is that there was a dissent on the use of such

material, and that those who used the materials to determine intent found that while

amendments had be proposed to exclude the act from getting amended by its own

procedure, all the amendments were rejected.

The judgments in Jackson v Attorney General were quite remarkable. The mere fact that

they were given at all and that the courts were prepared to hear a challenge to the validity

of the Hunting Act 2004 and the Parliament Act 1949 was noteworthy. Even more so was

the fact that the courts were prepared to impose implied limitations on the legislative

power of the Westminster Parliament, when acting under the Parliament Act 1911.

Finally, the warnings given by some judges that the courts, ultimately, determine the

scope of parliamentary supremacy, and that the use of the Parliament Acts to impose

‘undemocratic’ measures might be rejected, were quite unprecedented in the United

Kingdom.

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