1. Parliamentary Sovereignty Flashcards
Jackson v AG (2005)
[Legislation - Parliament Acts 1911 and 1949 are lawful]
Summary: The Parliament Act 1949 had been validly made under the power contained in the Parliament Act 1911 to enact legislation without the consent of the House of Lords, and therefore the Hunting Act 2004, made pursuant to the 1911 and 1949 Acts, had been validly made.
The Countryside Alliance, which represented pro-hunt campaigners who wished to continue foxhunting, argued the legislation used to force the ban through in England and Wales - the 1949 Parliament Act - was illegal. The government used the Parliament Act to push the hunting ban through following continuous opposition to a ban in the House of Lords. The ban made hunting with dogs a criminal offence.
Held: Lord Bingham of Cornhill for their Lordships said it was valid.
Nine of the 12 Law Lords, rather than the usual 5 heard the case because of its constitutional importance.
Legislation passed using the Parliament Acts is not subordinate legislation but primary legislation.
The authority of Picken v British Rail is not doubted by the instant case, which has only proceeded at the invitation of the Attorney General. Picken was an enquiry into the workings of Parliament where it was said that Parliament had been misled and so had proceeded on a false basis; the instant case was not such an enquiry. The instant case firstly asked if Acts that created the Hunting Act were “enacted law”. Secondly, a question of law had been raised which had to be resolved by either the courts or Parliament, and because Parliament could not do so it was up to the courts.
Hunting ban upheld.
Edinburgh & Dalkeith Railway Co v Wauchope (1842)
[Supremacy of Parliament – no judicial challenge of Act of P. allowed]
Mr Wauchope claimed that the private Act obtained by the Railway Company should not be applied as it had been passed without his having notice of the passing of the Act as required by Standing Orders.
Held: Mr Wauchope was unsuccessful in his claim and Lord Campbell’s statement has subsequently been extensively quoted.
“All that a court of justice can look to is the parliamentary roll: they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament.”
Pickin v British Railways Board (1974)
[Supremacy of Parliament – no judicial challenge of Act of Parliament allowed]
The courts have no power to examine proceedings in Parliament to determine whether the passing of an Act, public or private, had been obtained by irregularity or fraud.
C, a railway enthusiast, bought a few yards land adjoining a disused railway line for ten shillings in 1969. C’s intention appears to have been to gain ownership of part of the railway line when it ceased to be used by the railway company. An 1836 Act stated that in such circumstances the railway land reverted to the ownership of adjoining land owners; Mr Pickin had made himself such an owner. The British Railways Board subsequently claimed it owned the land by virtue of a private Act of Parliament passed in 1968, which cancelled the reversion clause of the 1836 Act.
Mr Pickin sought a declaration that the Act was ineffective on the grounds that the Board had mislead Parliament and that the standing orders of each House (requiring landowners to be notified by a notice in a local newspaper) had not been complied with.
Held: Mr Pickin’s claim rejected.
Lord Reid:
“The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution.”
Vauxhall Estates v Liverpool Corporation (1932)
[Supremacy of Parliament – no Parliament can bind a future Parliament]
The Acquisition of Land (Assessment of Compensation) Act 1919 S7(1) stated:
‘The provisions of the Act or order by which the land is authorised to be acquired…shall…have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect..’.
The claimants argued that compensation for land compulsorily acquired from them should be assessed on the basis of the 1919 Act not the Housing Act 1925 as a result of the above words in the 1919 Act.
Held: Even if the Act could be construed as intending to govern future Acts, which was doubtful, the relevant provisions must be regarded as being impliedly overridden by the inconsistent provisions of the later Act.
Avory J:
” Speaking for myself, I should certainly hold, until the contrary were decided that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions.”
Ellen Street Estates Ltd v Minister of Health (1934)
[Supremacy of Parliament – no judicial challenge of Act of P. allowed]
A similar argument was raised as in Vauxhall Estates as to the provisions for compensation arising under the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Acts 1925 and 1930.
Held: The Housing Acts impliedly repealed the 1919 Act in so far as the later Acts were inconsistent with the earlier Act.
Maugham LJ:
” The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal.”
R v Secretary of State for Transport Ex p Factortame (No.2) (1991)
[EC Law - An Act of Parliament incompatible with any requirement of EC law can and must be declared invalid and ineffective to the extent of that incompatibility]
D, the UK government enacted the Merchant Shipping Act 1988.
C, Spanish fishermen claimed this act affected UK fisheries policy and was contrary to EC Law.
They sought an order directing the Secretary of State not to enforce the Act pending a full trial of the issue. The Divisional Court referred the substantive question to the ECJ, but ordered by way of interim relief that the Regulations should not be applied as against C.
The Court of Appeal and House of Lords held that no national court had the power to suspend the operation of an Act of Parliament.
Held: The ECJ disagreed. A national court, which, in a case before it concerning EC law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule. The House of Lords thereupon granted an order restraining the Secretary of State from enforcing the legislation in question against C.
ECJ: “The full effectiveness of Community law would be impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judicial decision to be given on the existence of rights claimed under Community law.”
Since Factortame UK courts will not apply an Act if it conflicts with Community law.
Attorney General for New South Wales v Trethowan (1932)
The legislature in New South Wales had in 1929 enacted that the Upper House should not be abolished except by a Bill which before being presented to the Governor for the Royal Assent should be approved by the electors in a referendum. This requirement for a referendum could not itself be repealed except by the same process. In 1931 a New South Wales government secured the passage of two Bills , one purporting to abolish the requirement of a referendum, the other purporting to abolish the upper House. It was admitted that these Bills were to be presented for the Royal Assent without any prior referendum. A declaration of invalidity and an injunction was sought and granted. This was upheld, first, by the High Court of Australia, and, secondly, by the Privy Council but only on the grounds that section 5 of the Colonial Laws Validity Act, 1865 laid down express requirements as to manner and form.
Thorburn v Sunderland City Council (2002)
Summary: The Weights and Measures Act 1985 s.1, which as originally enacted had provided for the continued use of either imperial or metric measures, had not impliedly repealed the European Communities Act 1972 s.2(2) to the extent that the latter empowered the provision of subordinate legislation which was inconsistent with it; the 1972 Act was a constitutional statute which could not be impliedly repealed.
Abstract: In four appeals the issue before the court concerned the introduction in accordance with the policy of the European Union of compulsory systems of metric weights and measures. In three of the appeals the appellants had been convicted for selling produce using non metric measures. In the fourth appeal the appellant challenged the imposition of conditions on his street trading licence relating to his use of metric weights and measures. By virtue of Council Directive 80/181 Art.1 , as amended by Council Directive 89/617 , together with Chapter IV of the Annex, the continued use of imperial measures for trade in goods loose in bulk was only permitted until December 31, 1999. Prior to the amendment, the Weights and Measures Act 1985 had permitted the continued use of imperial and metric measures for such goods. The Units of Measurement Regulations 1994 had amended the 1985 Act so that the use of imperial measures was permitted in relation to such goods as either a primary or a supplementary indicator until January 1, 2000. However, thereafter the use of the pound as a primary indicator of weight was forbidden. The arguments before the court related to the doctrine of implied repeal and, in particular, whether the 1985 Act had impliedly repealed the European Communities Act 1972 s.2(2) to the extent that the latter empowered the provision of subordinate legislation which was inconsistent with it.
Held, dismissing the appeals, that the 1985 Act, as originally enacted, had not impliedly repealed s.2(2) of the 1972 to the extent that the latter empowered the provision of subordinate legislation which was inconsistent with it. The appropriate analysis of the relationship between EC and domestic law required regard to four propositions: (1) each specific right and obligation provided under EC law was by virtue of the 1972 Act incorporated into domestic law and took precedence. Anything within domestic law which was inconsistent with EC law was either abrogated or had to be modified so as to avoid inconsistency; (2) the 1972 Act was a constitutional statute which could not be impliedly repealed; (3) the common law recognised a category of constitutional statutes, and (4) the fundamental legal basis of the United Kingdom’s relationship with the EU rested with domestic rather than European legal powers. In the instant case, since the amendments to the 1985 Act no longer permitting the use of the pound as a primary indicator had been lawful, the four appeals had to be dismissed.
