The Concept of Legislation: Jackson v Her Majesty'sAttorney General
| Date | 01 March 2006 |
| Published date | 01 March 2006 |
| Author | Michael Plaxton |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00583_2.x |
been killed in error)has again become a live issue.Whilstthe question of compen-
sation for the familyof Mr de Menezes remains undetermined at the time of writ-
ing,there can be littledoubt that thisissue will remain controversial forsome time.
The decision in Bubbins vUnited Kingdom is important for the manner in which
it elucidates (to a degree) upon the relationshipbetween Art.13 and Art.2, though
as noted above itmay not haveclari¢ed matters asmuch as intended. In anyevent,
the limits of this decision must be borne in mind. It is an analysis of English law,
and its pan-European impact will be minimal.Moreover, the issuesleading to the
violation of Art.13 would not have been breached had Mr Fitzgerald had depen-
dents, or had he experienced pain and su¡ering in the wake of the shooting.
This fact scenariowill not resonate with every killing by an agent of the state,
but it is far from inconceivable that such a scenario will arise again. Indeed, it
would seemthat Mr de Menezes died instantly, and had no dependents. No com-
ment on the Bubbins vUnited King dom decision has been made by the Govern-
ment, so itremains unclear whetherany adjustment of English law will be made.
The Concept of Legislation: Jackson vHer Majesty’s
Attorney General
Michael Plaxton
n
In Jackson and Others vHer Majesty’s Attorney General, the Appellate Committee of the House of
Lords faced an unusual case ^ one in which it had to decide not only what Parliament intended,
but whether it created a statutei nthe ¢rst place. Thoughthe Committee was unanimous in ¢ nd-
ing that Parliament did indeed create a statute, the decision reveals deep divisions within the
panel concerning the status of the doctrine of parliamentary supremacy and a profound di¡er-
ence in commitment to an exclusively source-based approachto law.
InJackson,
1
we encounter a rare case, one that turns on whether the Crown in Par-
liament made law in the¢rst place.The Appellate Committee unanimouslyruled
that it did. Its decision, however, reveals deep ¢ssureswithin the Committee con-
cerning th e extent to which we ought to adopt an exclusively source-based
approach to identifying legal rules.
THE ISSUE
We can begin by stating the obvious: ordinarily, the House of Commons can cre-
ate an Act of Parliament only with the consent of the House of Lords and Royal
n
Lecturer, School of Law, University of Aberdeen. I am grateful to Peter Du¡, Carissima Mathen,
John Paterson, Fiona Leverick,David Jenkins, Greg Gordon and Robin Evans-Jones for their com-
ments and suggestions. Any errors and omissions are mine alone.
1Jacksonand Others vHerMajesty’s Attorney General, [2005]UKHL 56.
Michael Plaxton
249rThe Modern LawReview Limited 2006
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