R (Jackson) v Attorney General
[7] Nine judges were selected to hear the appeal, as opposed to the usual number of five, due to the significant constitutional issues the case raised.[16] Professor Mullen therefore suggests that it is at first glance surprising that standing was not contested: the appellants brought proceedings in their personal capacities, yet had not even been threatened with prosecution.Moreover, the recent expansion of standing for issues of public interest, such as the validity of an Act of Parliament, would have made a successful challenge more difficult.[3]: 4 Another preliminary issue, that of whether the House of Lords had jurisdiction to challenge the validity of an Act of Parliament, was also not argued by the Attorney General in a move described by Ekins as "an extraordinary concession".[11]: 112 The enrolled bill rule, affirmed in Pickin v British Railways Board,[17] had established that the courts could not examine the procedure by which legislation had been passed.[7]: [31] Of the nine judges, only Lord Carswell suggested that there may be implied limits to the use of the Parliament Acts, but acknowledged the difficulty of defining the extent of these restrictions.[7]: [61] [19]: 721 Lord Bingham was the only judge to explicitly reject the validity of this implied limitation, arguing that there were no reasons for preventing the alteration of the clause limiting the subject matter of full Acts of Parliament and that "it cannot have been contemplated that if, however improbably, the Houses found themselves in irreconcilable deadlock on this point, the government should have to resort to the creation of peers".[1]: 2 Cosmo Graham argues that Jackson could be seen as "a constitutional curio, dealing with an obscure point, which is now effectively settled in favour of the Executive"; the case, from this perspective, is of no practical consequences given the limited use of the Parliament Acts and plans to further reduce the power of the House of Lords to delay bills.However, he suggests that Jackson is part of a trend of increased willingness by the judiciary to examine the claimed existence of executive powers and "to push at the borders of traditional techniques of judicial interpretation".Four recent cases had found that "in the absence of express language or necessary implication to the contrary, the courts [will] presume that even the most general words were intended to be subject to the basic rights of the individual".The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament's legislative sovereignty.[7]: [104], [107] Lord Hope also argued that Parliament should not be able to pass legislation that "is so absurd or so unacceptable that the populace at large refuses to recognise it as law".The courts will treat with particular 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.The attribution in certain quarters of such a wish to the judiciary is misconceived and appears to be the product of lack of understanding of the judicial function and the sources of law which the courts are bound to apply.The argument from legitimacy highlights that Parliament's supremacy depends on the democratic and accountable nature of legislature; anything that undermines this status would invalidate the applicability of the doctrine.[8]: 572 The argument based on the current hypothesis of constitutionalism reasons that no authority should be allowed to violate fundamental rights in a democratic society: they are essential features that cannot be removed, even by a supposedly sovereign Parliament.This view was also expressly endorsed in Jackson by Lord Hope, who regarded Parliament's sovereignty as subject to the rule of law.
House of LordsDivisional courtCourt of AppealLord BinghamLord NichollsLord SteynLord HopeLord RodgerLord WalkerBaroness HaleLord CarswellLord BrownParliament Act 1911Parliament Act 1949Hunting ActActs of ParliamentHuntingParliament Acts 1911 and 1949Parliamentary sovereigntySubordinate legislationobiterunlimited in the United KingdomCountryside AllianceParliament ActsHunting Act 2004jurisdictionstatutory interpretationstandinglegislationAct of ParliamentAlison Youngrule of recognitionbicameralunicamerallyJeffrey JowellRoyal AssentHouse of Commonsprimary legislationparliamentary sessionsPowderham CastleHunting BillLabour’s2001 general electionfox huntingjudicial reviewLord Justice KayMr Justice CollinsLord Chief JusticeLord WoolfMaster of the RollsLord PhillipsLord Justice MayPalace of Westminstercourt in the United KingdomSupreme CourtSir Sydney KentridgeAttorney Generalenrolled bill rulePickin v British Railways BoardBill of Rights 1689Houses of ParliamentdistinguisheddelegatedCosmo GrahamexecutiveParliamentCommon lawJohn LawsAlbert Venn DiceyMacCormick v Lord AdvocateentrenchedRichard Ekinsbranches of governmentMagna Carta 1215United Nations Act 1946Human Rights Act 1998European Union (Withdrawal Agreement) Act 2020Dissolution and Calling of Parliament Act 2022Local Government Act 1972Scotland Act 1998Government of Wales Act 1998Northern Ireland Act 1998Greater London Authority Act 1999Stockdale v HansardAttorney General v Jonathan Cape LtdR (Factortame) v Transport SecretaryR (Simms) v Home SecretaryR (HS2 Action Alliance) v Transport SecretaryR (Miller) v Brexit SecretaryR (Miller) v The Prime Minister and Cherry v Advocate General for ScotlandEuropean Communities Act 1972European Union Act 2011UK constitutional lawUnited Kingdom constitutional lawUnited Kingdom administrative lawCambridge Law JournalEWCA CivPublic LawLaw Quarterly ReviewThe GuardianGraham, CosmoThe Stationery OfficeSenior Court Act 1981Oxford University PressOxford Journal of Legal StudiesLongmanR v Secretary of State for the Home Department, Ex p Simms