PUBLIC LAW I (M3406) and PUBLIC LAW I

(ADVANCED)) (M3006)

Notes on R (Jackson) v Attorney General

[2006] 1 AC 262

Lindsay Stirton
Contents

Contents
1 How to Use This Document 1

2 Notes 2

ii
 How to Use This Document

1. How to Use This Document

As with R (Miller) v Prime Minister [2019] UKSC 41, these notes are to assist in tackling
a significant constitutional case R (Jackson) v Attorney General [2005] 1 AC 262.

We will be using a the Appeal Cases version of the case. Appeal Cases are part of the
official Law Reports produced by the Integrated Council of Law Reporting for England
and Wales (ICLR). They feature a headnote written by a professional law reporter, which
provides a useful summary of the case, and a number of other helpful features. Note that
we can identify where on a page something is written on the .pdf of the printed copy of
the report only by a letter A–H on the margin of the page. So a reference 262 D–262 F
would indicate part of the text from the letter D to letter F in the margin of page 262. You
will see in the notes below, I have used bold paragraph headings to identify different parts
of the text.

I will not put a copy of the case on Canvas, because of copyright issues. You should
access the case in the following way.

1. Go to the Sussex University Library subject guide for law: http://guides.lib.sussex.-

ac.uk/Law

2. Click on the link to Westlaw. This should take you through Sussex University au-
thentication.

3. Click on the top menu bar link to Cases. This should open a search box, where you
can insert text into a number of boxes.

4. You can search for the case any way you like, but since you know the citation to the
case you are looking for—[2006] 1 AC 262—and this is unique, this is probably the
most reliable way.

5. If you search in other ways (such as party names), make sure you select from the
list of results the case you are looking for, and not one with the same or similar
names.

6. For present purposes, make sure that you access a .pdf of the printed copy of the
report, since these have the margin text indicators as noted above.

Mindful of the pressures on your time, I am only asking you to read Lord Bingham’s
speech, plus very selected extracts from the others.

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Notes

2. Notes
262 D–263 C This is the headnote. It will tell you the essentials of what was decided,
on what basis. For some purposes reading the headnote will be sufficient. If you are
researching an argument you are wanting to make, it may let you know if the case is
relevant to you. In revising for an exam, it will tell you the facts ahd the decision in more
detail than you will be able to recount under time pressure. For present purposes, though,
it won’t help you understand the limits (if any) on Parliament’s legislative power.

263 D -264 D This is a list of cases cited in argument. Ignore for now.

264 E -264 F This is a summary of the case history, written by the law reporter. Since it
is repeated in Lord Bingham’s judgment, you can ignore for now.

264 G -270 G This is a summary of the arguments put by counsel on both sides. You
can skip for now, in order to save time. For future reference, be aware that you can often
get some good insights from reading and thinking about the arguments made by counsel
that weren’t accepted by the judges.

270 H This is where the “speeches” of the Law Lords, i.e. the judgment they handed
down begins. It is conventional to refer to judgments of the House of Lords as “speeches”
because, historically, an appeal to the House of Lords was an appeal from the courts
to Parliament, and even into the early twenty-first century, the fiction was that the Lords
were delivering their judgments on the floor of the House of Lords. For the same reason,
you will see that the Law Lords start their judgement with the words, “My Lords”. The
form of words signifies that they are addressing their fellow peers. It has been dispensed
with in the style of speech of the Supreme Court. Unlike Miller (No 2) which we read in
the first week, the decision is not given as a single judgment of the court. So there are
five speeches to read. Note also that this is where paragraph numbering begins.

270 H–271C Lord Bingham sets out the grounds on which the appellants are seeking to
challenge the Hunting Act 2004. It is important to understand this, although it is explained
in more detail as the decision goes on.

270 E–274C This is where Lord Bingham sets out the basis of the power, the use of
which is challenged in the present case. This is a vital part of the judgment, because if
there are limits to the use of the power, a close analysis of the basis of the power should
reveal what they are. It is not necessary that you remember all the detail, but try to get

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 Notes
the gist of how the Hunting Act was passed under a procedure set out in the Parliament
Acts 1911 and 1949, and how its validity depends on the validity of the 1949 Act. The
validity of the 1911 Act is not in question, but its limits, that is to say the legality of its use
in passing the 1949 Act is.

274 C–274 G This passage, sets out, very logically, the nature of the argument that
is being made against the Hunting Act 2004. Note Sir Sydney Kentridge’s (counsel for
the appellants’) five propositions, to which Lord Bingham will shortly return. If you can
summarise the argument of one of the essays you are about to submit so succinctly and
logically, you are probably on the way to getting a really good mark. Learn from the
masters.

274 G–279 B This goes over an important issue in our constitutional history. It also
serves as a revision of what we have said in lectures about the composition and role of
the House of Lords. For now, just read and get a sense of events of 1909–1911, without
trying to hard to remember the detail. The names will be familiar to those who have
studied British history of the period even at School, but if not, don’t worry that that the
names don’t mean anything to you.

279 C–281G This is the beginning of Lord Bingham’s judgment with respect to each of
the five propositions put forward by Sir Sydney, What is the argument being made about
the status of legislation passed under the 1911 Act? In your own words (and preferably
not very many of them), why does Lord Bingham reject that argument?

281 G–284 D Here, Lord Bingham consider’s the second of Sir Sydney’s arguments,
concerning the scope of Section 2 (1) of the Parliament Act 1911. The argument is that,
despite the general language of the section, the power contained in the Section to pass
an Act of Parliament without the consent of the House of Lords does not extend to the
power to amend the Parliament Act 1911 itself. Before reading this section, stop and
reflect on whether you find this a plausible claim. No need to think it out in detail, your gut
reaction is sufficient. After reading the passage, reflect on whether you agree with Lord
Bingham on this point.

284 E–285 H The argument Lord Bingham is considering here is that it would be con-
stitutionally absurd to allow the Commons to use a limited power to pass Acts of Par-
liament without the consent of the Lords to pass an Act further extending their powers.
Recall the summary of the proposition at 274 E. You might wish to consult the defin-
ition of Henry VIII clauses on the Parliament website: https://www.parliament.uk/site-
information/glossary/henry-viii-clauses/.

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Notes
286 A–285 C This is essentially a deduction from premises set out as previous propos-
itions. Since Lord Bingham rejects these, it is unsurprising that he rejects the conclusion.

286 D–285 E Note Lord Bingham’s conclusion that “the breadth of the power to amend
the IWII Act in reliance on section P(I) cannot depend on whether the amendment in
question is or is not relatively modest.” How does this compare with the speech of Lord
Steyn 302 B–303 A?

Congratulations! You have just worked your way through a difficult and challenging
judgment. You should feel like your brain has had a good work out. I won’t discourage
you from reading the other speeches if you are enthused, but if you are pressed for time,
it will be sufficient to read the case extracts documents from week 2. For convenience,
since you will now probably have a copy of the Appeal Cases report in front of you, here
are the relevant passages:

• 302 C–303 B

• 309 G–310 B