#19891 - Jackson - Constitutional Law

R (Jackson) v Attorney General

Robin Cooke – A constitutional retreat

Lords unanimously decided the Parliament Act 1949 was valid. Passing a bill through just the Commons did not change anything – it was still an Act with full validity and status.

Bingham went further than anyone and thought that the two-step process – the government firstly repealing the provision referencing the maximum duration of Parli’s lifespan, then passing a bill to extend Parliament’s life – was a possibility. The majority disagreed with him.

Steyn said if Parliament tried to abolish judicial review or trample the courts’ jurisdiction, the court might decide there is a constitutional fundamental which even a sovereign parliament acting under the behest of the Commons can’t abolish. Cooke thinks in a democracy, sovereignty is a myth.

Lord Hope thinks politics supports the judgement. All the main parties and both Houses of Parliament accept the 1949 and 1911 Acts. The courts can’t ignore this. A similar theme was picked up by CA – ‘the general recognition by Parliament, the Queen, the courts and the populace’ was that the 1949 Act was a proper exercise of sovereign legislative power.

Lord Pearce in Bribery Commissioner v Ranasinghe – ‘a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law.’

Cooke thinks the constitutional balance has changed. Checks on the popular assembly have been significantly diminished. Constitutionalism has taken a heavy blow. Note: Cooke was writing in 2006. Constitutionalism has not recovered, and doesn’t seem to be moving in any direction? Perhaps towards legal.

Lord Mance – Constitutional reforms, the Supreme Court and the Law Lords

Bill of Rights 1689: ‘proceedings in Parliament ought not to be impeached or questioned in any court’.

Lord Hope in Jackson – Parliament and the courts have to act so as not to cause conflict.

Lord Steyn – Democracy, the rule of law and the role of judges

Attorney-General, at the hearing, said gvt could use the Parliament Act to bring about constitutional changes. (Depends on your view of PS). Steyn asks what legal impediment exists to stop the gvt using the Parliament Act to abolish/dimmish judicial review.

Lord Hope was critical of PS. He thinks our constitution is dominated by PS. But PS is no longer, if it ever was, absolute. Step by step, the English principle of absolute, unqualified PS derived by Dicey from Coke and Blackstone, is being qualified.

Hope also thinks the rule of law enforced by the courts is ‘the ultimate controlling factor on which our constitution is based’. ‘Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refused to recognise it as law’.

Hale struck a similar tone. 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 powers. So, they both think that PS may, in exceptional circumstances, have to yield to the rule of law.

Steyn thinks PS is no longer absolute. But, it’s still the general principle of the constitution. He thinks it’s a construct of common law – Steyn believes judges created parliamentary sovereignty. Therefore, judges can qualify it based on a different hypothesis of constitutionalism. Professor Anthony Bradley agrees broadly with Steyn.

Alison Young – Hunting sovereignty

Old view of PS = Parliament can’t bind future Parliaments. New view = parliament can bind through entrenchment. Old view seems paradoxical – we’re saying Parliament doesn’t have the power to bind future Parliaments. So, how can it be sovereign. But, that limit is necessary to preserve the sovereignty of future parliaments.

Heuston thinks there are three characteristics of the new view:

1. Sovereignty is a legal concept

2. There’s a difference between rules governing the composition of the sovereign, the procedure by which legi is passed, and the powers of a sovereign legislator

3. Courts can question the validity of an Act if there’s an issue as to the procedure.

Jennings thinks legal sovereignty is just a name. it means the legislature has power to make laws of any kind in the manner and form required by the law.

Wade advocates for the old, orthodox view of sovereignty, but he recognises there must be rules logically prior to the sovereign.

Hart calls the difference continuing v self-embracing sovereignty. Continuing = each separate Parliament is a sovereign law-making body. Self-embracing = Parliament over time and as a whole is sovereign. The first parliament can then bind the next one, etc. Hart thinks it’s possible for Parliament to be sovereign and be bound by previous parliaments.

Self-embracers think ECA and HRA bind parliament.

In Thoburn, Laws LJ distinguishes between constitutional and other statutes. He thinks constitutional statues can’t be impliedly repealed. Allan broadly agrees, but thinks it’s difficult to identify what a constitutional statute is. Laws LJ would agree with the self-embracers. Constitutional statutes are entrenched.

In Jackson, it seems there was no...