Parliamentary Supremacy and Rule of Law Jackson V AG (2005) HL

Parliamentary Supremacy and Rule of Law
Jackson v AG (2005) HL
Note that this case brings out two important points on Parliamentary supremacy relating to which
HL appears to place limits on the concept of absolute PS as conceived by Dicey- that Parliament can
make any laws; that Parliament cannot limit is own supremacy.
The Lords took the position that:
(i) Parliament can bind itself in the way it makes laws (Parliament can enact a law to
regulate its law making powers)
(ii) The Rule of Law may be enforced by courts to control (limit) Acts of Parliament
Background: The 1911 Parliament Act provides for certain procedures for legislating- the Act
removes the veto powers of the House of Lords over money bills and public bills if the procedures
are used, allowing bills approved by the Commons but not by the Lords to be sent to the Monarch
for assent. Under the procedures, bills approved by Commons and sent up to the House of Lords
could lay in the HL for specific period of time (public bills – over three successive sessions of
Parliament in two years; money bills – one month before end of the Parliamentary session), then
could be sent for assent by the Monarch without the consent of the HL. This means that effectively,
under the procedures of the 1911 Act , only two estates constitute Parliament to make laws, ie.
Commons and Monach, without the Lords.
The 1949 Parliament Act was enacted under the 1911 Act procedures ( which means passed
only by House of Commons without approval of the House of Lords) and reduced the period of time
of delay in the House for Lords for public bills from two years to one year, thus in effect, further
reducing the powers of the HL.
Claim of Appellants: The Hunting Act 2004, which banned hunting by wild dogs, was passed under
the 1949 Parliament Act procedures. Appellants who support hunting by wild dogs, challenged the
the Hunting Act; to do so, they challenged the 1949 Parliament Act on the basis that the 1949 Act
was delegated legislation and therefore could not expand the powers of the Commons in the parent
1911 Act, and as such, the 1949 Parliament Act procedures could not be applied to pass another Act
(what this means essentially, is that the 1949 Act, as subordinate legislation, is ultra vires the parent
1911 Act). The basis of their argument was that since only “Parliament” (three estates- Crown,
Lords and Commons) could pass laws, and Parliament could bind itself in a re-constituted form, the
1911 Act could not enable primary legislation to be enacted by a differently constituted Parliament,
thus the 1911 Act was a delegation of legislative powers from Parliament to the Commons, and 1949
Act was delegated legislation.
Decision
(i)Parliament can bind itself in the way it re-constitued itself to make laws
HL rejected the argument of applicant that the 1949 Act was delegated legislation, passed by
Commons as a delegate of Parliament under the 1911 Parliament Act. HL ruled that the 1949 Act
was primary legislation passed by Parliament which has been reconstituted and its legislative
functions re-distributed under the 1911 Parliament Act. Hence, the 1911 Act binds Parliament in its
law making powers, and the 1949 Act was primary legislation enacted under the 1911 Act.
(ii)Parliament is no longer absolutely supreme, Rule of Law (“constitutional fundamentals”) as

enforced by courts is the ultimate controlling factor – Court’s obitur points to judges ready to
qualify the principle of absolute PS and move toward constitutional supremacy (or is it judicial
dictatorship?)
In the various judgements, the law Lords made certain dicta on the constitutional principles of
supremacy of Parliament and the rule of law, in the context of suggestions by the AG that the
procedures in the 1911/1949 Acts could be used by Commons to abolish the House of Lords!
These dicta shows an approach by the Law Lords that, in exceptional situations, courts could place
limits on the laws which Parliament could enact- limiting the absolute supremacy of Parliament. The
Lords also referred to other situations where Parliament itself had limited its legislative powers.
Lord Steyn:
“.. If the Attorney General is right, the 1949 Act could also be used to introduce oppressive and
wholly undemocratic legislation. …This is where we have to come back to the points about the
supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution. In
the European context, the second Factortame decision made that clear…the settlement contained in
the Scotland Act 1998 also point to a divided sovereignty. Moreover , the European Convention on
Human Rights as incorporated into our law by the Human Rights Act 1998 created a new legal
order. ..…The classic account given by Dicey of the doctrine of supremacy of Parliament, pure and
absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless
the supremacy of Parliament is still the general principle of our constitution. It is a construct of the
common law. The judges created this principle. If that is so, it is not unthinkable that
circumstances could arise when the courts may have to qualify a principle established on a
different hypotheses of constitutionalism. In exceptional circumstances involving an attempt to
abolish judicial review or the ordinary role of courts.. the Appellate Committee of the House of
Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental
which even a sovereign Parliament acting on the behest of a complaisant House of Commons
cannot abolish..”
Baroness Hale of Richmond:
“The concept of Parliamentary sovereignty… means that Parliament can do anything. The courts will,
of course, decline to hold that Parliament has interfered with fundamental rights unless it has made
its intentions crystal clear. The courts will treat with particular suspicion, and might even reject, any
attempt to subvert the rule of law by removing the rights of individuals from all judicial scrutiny .
Parliament has also , for the time being, at least, limited its own powers by the European
Communities Act 1972, and in a different way, by the Human Rights Act 1998. It is possible that other
qualifications may emerge in due course….”
Lord Hope:
“…Parliament sovereignty is no longer, if it ever, was absolute. ..It is no longer right to say that its
freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the
English principle of the absolute legislative sovereignty of Parliament… is being qualified…. The rule
of law enforced by the courts is the ultimate controlling factor on which our constitution is
based…..The fact that your Lordships have been wiling to hear this appeal …is another indication that
the courts have a part to play in defining the limits of Parliament’s legislative sovereignty”’

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Parliamentary Supremacy and Rule of Law

The Lords took the position that:

(ii)Parliament is no longer absolutely supreme, Rule of Law (“constitutional fundamentals”) as

Baroness Hale of Richmond:

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