R (Jackson) v Attorney General
| Jurisdiction | England & Wales |
| Judgment Date | 16 February 2005 |
| Neutral Citation | [2005] EWCA Civ 126 |
| Docket Number | Case No: C1/2005/0201 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 February 2005 |
[2005] EWCA Civ 126
The Lord Chief Justice of England and Wales
Lord Phillips of Worth Matravers, Mr and
Lord Justice May
Case No: C1/2005/0201
CO/5791/2004
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
LORD JUSTICE MAURICE KAY AND MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Sydney Kentridge QC, Mr Richard Lissack QC, Mr Martin Chamberlain and Mr Marcus Hayward (instructed by Messrs Allen & Overy LLP) for the Appellant
Lord Goldsmith QC, Mr Philip Sales and Mr Clive Lewis (instructed by Treasury Solicitor) for the Respondent
Mr David Pannick QC and Mr Gordon Nardell (instructed by Messrs Collyer-Bristow) for the Interveners
This is a Judgment of the Court to which each member has contributed.
Introduction
This is an appeal from a decision of the Administrative Court given in judgments delivered by Maurice Kay LJ and Collins J on 28 January 2005. This is no ordinary public law case. At issue is the validity of two Acts of Parliament, the Parliament Act 1949 ('the 1949 Act') and the Hunting Act 2004 ('the Hunting Act'). It is the validity of the 1949 Act that is critical, for the Hunting Act was enacted pursuant to provisions of the 1949 Act.
The 1949 Act was purportedly enacted pursuant to the provisions of the Parliament Act 1911 ('the 1911 Act'). The 1911 Act laid down circumstances in which an Act of Parliament could be enacted without the assent of the House of Lords. The 1949 Act was so enacted under the circumstances specified, but purported to amend those circumstances. The critical issue is whether the 1911 Act permitted this.
In the Administrative Court this case was treated as an ordinary case turning on a point of statutory interpretation. It is not such a case. English courts do not normally have jurisdiction to consider the validity of an English statute. So far as the validity of a statute is concerned, the following observation of Lord Campbell in Edinburgh and Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710 at 725 has always been accepted as correct:
"…all that a Court of Justice can do is look to the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through Parliament."
The issue to which the appeal relates is therefore one of considerable constitutional significance. However, while the success of this appeal is entirely dependant upon the complaints which are made as to the lawfulness of the provisions of the 1949 Act, as is well known, the Hunting Act (which is intended to make the hunting of wild animals, and especially foxes, by dogs unlawful) contains provisions that are highly controversial and bitterly opposed by substantial sections of the public.
The preamble to the 1949 Act states:
"Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Commons, in this present Parliament assembled, in accordance with the provisions of The Parliament Act, 1911 ("the 1911 Act") by the authority of the same, as follows: —"
The preamble to the Hunting Act provides:
"Be it enacted by The Queen's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows:-"
It will be noted that in both cases, reference is made to the Parliament Act, 1911. The validity of that Act is not disputed. It was, however, legislation which, at the time that it was passed was also highly controversial and, according to what we were told in the course of argument, was legislation which was preceded by a general election at the insistence of King Edward VII, who died before it was enacted, and was succeeded by King George V.
That the 1911 Act should be controversial was hardly surprising since the 1911 Act dramatically reduced the power of the House of Lords. Its effect, which is not in dispute, was to give the House of Commons the dominant role in Parliament. Prior to the 1911 Act, the House of Lords had an unlimited power to prevent a Bill becoming law by refusing to consent to its enactment. But after it came into force, it substantially restricted the ability of the House of Lords to delay the enactment of legislation. It achieved this by providing that, after a period of 2 years had elapsed in the circumstances described in the 1911 Act, a Bill could become an Act of Parliament without it being passed in the House of Lords. The 1911 Act can be regarded as having established a new constitutional settlement.
The 1949 Act amended the 1911 Act by reducing that period of 2 years to 1 year. However, the provisions of the 1911 Act were relied upon to enact the 1949 Act. On behalf of the Appellants, Sir Sydney Kentridge QC contends that this was not permissible as a matter of law. He submits that the 1911 Act could only be lawfully amended with the consent of the House of Lords. Accordingly, as the Hunting Act was enacted relying upon the 1911 Act as amended by the unlawful 1949 Act, the Hunting Act is also unlawful.
Lord Goldsmith QC, HM's Attorney General who appeared before us disputes that this is the position. He contends that the amendments made to the 1911 Act by the 1949 Act were perfectly lawful. So, it follows, is the Hunting Act. In advancing his case, he is supported by Mr David Pannick QC who appeared on behalf of the League against Cruel Sports, ("the League") who were given permission to make submissions in support of the Attorney General's case.
It is unusual, and in modern times probably unprecedented, for the Courts to have to rule on the validity of legislation that has received the Royal Assent. (But as to earlier periods in our history see the Prince's Case 8 Co Rep 1A). However, the Attorney General did not dispute that the Courts could properly adjudicate on this issue and in the court below, Maurice Kay LJ remarked (paragraph 14) 'the Attorney General wisely takes no point on justiciability'. Despite these exchanges we were concerned to satisfy ourselves that the issue before us was justiciable. We asked the Attorney General how this was. It was a question to which he gave us no convincing answer. He said that no point was taken on justiciability because it was recognised that it was desirable that the Courts should decide the issue. When we suggested that this might not be a valid basis for assuming jurisdiction, he asserted that there was no absolute rule that the Courts could not consider the validity of a statute. Here the Courts had jurisdiction because the issue was one of statutory interpretation and because the Appellants were contending that the 1949 Act was not a statute at all.
The reality is that the 1911 Act was a most unusual statute. By that statute the House of Lords, the House of Commons and the King used the machinery of legislation to make a fundamental constitutional change. Nearly 100 years after the event, the court has been invited to rule on the precise nature and extent of that change. We have decided that it was right for the Administrative Court to accept that invitation. The authority of the 1949 Act purported to be derived from the 1911 Act. The latter Act, by s.3, expressly envisaged the possibility that the validity of subsequent Acts enacted pursuant to its provisions might be subjected to judicial scrutiny. The effect of the 1911 Act was undoubtedly susceptible to judicial analysis. However, in considering that effect, the Administrative Court was acting as a constitutional court. There was no precise precedent for the jurisdiction that it was exercising.
The conclusion to which we have come is that Lord Goldsmith was correct to make the concession that he did. The determination of questions of interpretation and ascertaining the effect of legislation is part of the normal diet of the courts. While we will refer to what has happened in debates in Parliament concerning the issue before us, we will not be adjudicating upon the propriety of what occurred in Parliament. The circumstances in which it will be appropriate for the Courts to become involved in issues of this nature are limited, but in this case it is perfectly appropriate for the Courts to be involved. If the courts did not adjudicate on the issue, there would be great uncertainty as to the legal situation, which could have most unfortunate consequences after 19 February 2005, when the Hunting Act is meant to come into force. In exercising this role, the Administrative Court and this Court on appeal are seeking to assist Parliament and the public by clarifying the legal position when such clarification is obviously necessary
The Appellants are members of the Countryside Alliance, a body which opposed the banning of fox hunting, but they bring these proceedings in their personal capacity. Mr Jackson is the Chairman of the Countryside Alliance and a landowner whose land is within the area of a hunt, although he personally does not participate in hunting. Mr Martin is a hunt employee and professional huntsman whose livelihood and tied accommodation depend on the lawfulness of hunting. Mrs Hughes participates in hunting and she and her family have a business which is ancillary to hunting.
It is because the Hunting Act is due to come...
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