Parliamentary Sovereignty And Jackson V. Attorney General

2915 words - 12 pages

Cases on the foundations of a constitutional order, such as parliamentary sovereignty, tend to be rare in any event. But what makes R (Jackson) v. Attorney General [2005] U.K.HL. 56; [2006] 1 A.C. 262 a significant case, is the dicta regarding constitutional issues mentioned by the judges in relation to parliamentary sovereignty. The discussions of the central issues in the case are in many ways constitutionally orthodox, treating the primary concerns as that of statutory interpretation and adopting a literal interpretation of the 1911 Act. By contrast, the discussion of the wider issues suggest that the judiciary may have support for what could be classed as unorthodox opinions on the doctrine of parliamentary sovereignty. The concept of parliamentary sovereignty is to be considered as a mere ideology in the eyes of the legislature, as the modern day practical sovereign parliament is far from that of the theory.
Firstly the link of the 1911 Act with Jackson will demonstrate the questions the court has regarding the supremacy of parliament. Secondly, how the manner and form theory supports my argument as it focuses on how parliament can place restrictions upon the manner and form in which legislation is enacted, at the same time critiquing how important Jackson is for the future significance of parliamentary sovereignty.
The ideology of parliamentary sovereignty represents a constitutional order that acknowledges the necessary power of government, while placing legal limits and conditions upon its excise due to the Rule of Law, developed by the judiciary in cases such as Pickin v British Railways Board [1974] AC 765. The Diceyan theory represents a definition of parliamentary sovereignty. A general summary recalls that,
Jackson raised the sovereignty head that had been fermenting in previous cases alongside other issues. For example, in the case of Thoburn, LJ Laws focuses on the fact that the Human Rights Act has created a tension between parliamentary sovereignty and fundamental human rights – in particular due to the interpretative obligations that the courts have under s. 3 and s. 4 Human Rights Act 1998. Thoburn supports the idea of a hierarchy of Acts of Parliament. The Acts concerning "the legal relationship between citizen and State" or forming constitutional statutes, can only be expressly repealed by Parliament and therefore immune from the doctrine of implied repeal. Nicholas Bamforth highlights that the judges in Thoburn considered that demonstrating that before Jackson, it remained as to whether the sovereignty of parliament is in effect limited.
In Jackson, a panel of nine judges in the House of Lords convened to decide whether the Hunting Act 2004 was a valid Act of Parliament, questioning the legitimacy of the 1949 Act of Parliament. With the use of the Parliament Acts of 1911 and 1949, the House of Lords pushed the Bill through the House of Commons. The prominent argument being that the 1911 Act and the 1949 Act were not...

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