Chapter 9: Parliamentary Sovereignty

Question 1

1 Historical background and theory

1.1 Historical background

Answer 1

As we have previously seen, the so-called ‘Glorious Revolution’ of 1688 marked the most significant long-term turning point in English constitutional history. Though events had been more dramatic and violent in the 1640s and 1650s, the coup against James II and his replacement by William III marked the final end of absolutist monarchy in the
country.

This was reflected in key provisions of the Bill of Rights 1689 and later in the Act of Settlement 1701. These founding pieces of legislation effectively enshrined the sovereignty of Parliament as an institution.

No monarchs thereafter were able to ‘dispense with’ laws which that they did not like, or to dismiss judges at will, as the Stuarts claimed to be able to. Statute, made by Parliament,
became the highest form of law.

Question 2

1.2 Evolution of Parliamentary authority

Answer 2

Monarchs continued to have considerable political power and influence into the 19th century and
the country remained an oligarchy for a considerable period. There were three electoral Reform Acts in the 19th century, during which time the franchise expanded gradually, but it was not until 1928 that all men and women (over 21) could vote on an equal basis.

Though the doctrine of parliamentary sovereignty is usually associated with Professor Dicey’s
writings in the 1880s, it was not until the 20th century that one could say that the principle was directly linked to the ideal of a full democracy.

Question 3

1.3 Dicey’s theory

Answer 3

The principle of Parliamentary Sovereignty means nothing more or less than this, namely Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatsoever; and, further, that no person or body is recognised by the law of England as
having a right to override or set aside the legislation of Parliament.

Question 4

Three key elements to Dicey’s theory

Answer 4

• Parliament is the supreme law-making body.
• No Parliament may be bound by a predecessor or may bind a successor.
• No person or body may question the validity of an enactment of Parliament.

Question 5

1.4 Supreme law-making body (no legal but political limits)

Answer 5

Dicey means here that there are no substantive limitations on the legislation that Parliament may
enact. (Note that he is referring to the absence of any legal limitations on Parliament – he acknowledged that there are clearly political limits on what it can do.)

Question 6

1.4.1 No substantive restrictions on Parliament

Answer 6

Parliament can also legislate, if it wishes, contrary to fundamental rights (though note the effect of the HRA since 2000). In your separate materials on the rule of law, we saw this point made by Lord Hoffmann in 2000 in the ex parte Simms case when he set out his so-called ‘legality
principle’.

Question 7

Contrary to international law & Retrospective Effect

Answer 7

Parliament can also legislate contrary to international law – there are instances, such as in the cases of Mortensen v Peters and Cheney v Conn where the UK courts have clearly enforced the UK statute rather than international law. Additionally, Parliament can pass legislation that has retrospective effect, even though this is not
seen as desirable in rule of law terms. Examples include the War Damages Act 1965 and the War
Crimes Act 1991.

Question 8

1.5 No entrenchment

Answer 8

When Dicey said that no Parliament may be bound by a predecessor or bind a successor, he was referring to the absence of entrenchment as a constitutional safeguard in the UK constitution.

As we saw at the start of the course, the UK’s uncodified constitution does not possess any formal arrangements to entrench its constitutional fundamentals. This is unlike the vast majority of other democratic states, which tend to have mechanisms (of varying strength) which are designed
to make it harder to change constitutional basics and law than it is to change ordinary law.

In the UK the constitution can potentially be drastically changed by a single Act of Parliament. This could happen through new law or repeal of existing law. In the UK repeal can take an express or implied form.

Question 9

1.5.1 Express repeal

Answer 9

Express repeal occurs when legislation is passed that expressly states an intention that an earlier
Act should be replaced. For example, the Interception of Communications Act 1985 was expressly repealed and replaced by the Regulation of Investigatory Powers Act 2000.

Express repeal often happens when there is a drive to consolidate and simplify legislation. For example, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995 were all expressly repealed and replaced by the Equality Act 2010.

Question 10

1.5.2 Implied repeal

Answer 10

Implied repeal operates on a more subtle level and is a key feature of the second element of Dicey’s theory on sovereignty. This comes about (in the absence of express repeal) if a new Act is partially or wholly inconsistent with a previous Act.

If so, the previous Act is repealed to the extent of the inconsistency.
This is known as implied repeal because Parliament is deemed to have implicitly intended the later
Act to repeal the earlier one in this situation.

This implicit intention arises from a presumption that Parliament would not intend two incompatible statutes to be given effect at the same time - it would intend to give effect to the later statute, as this is the most recent expression of its will.

The courts will only draw the implication that Parliament intended to repeal an earlier statute where two statutes are irreconcilable.

Question 11

1.5.3 Effect of implied repeal

Answer 11

The significance of implied repeal for parliamentary sovereignty is that Parliament cannot bind its successors so as to prevent a statute from being impliedly repealed by a later one which is incompatible with it.

Implied repeal is a reflection of the traditional view that sovereignty takes a ‘continuing’ form, and that each new Parliament (with a fresh mandate) should have equal freedom of manoeuvre in
creating new legislation.

Question 12

Vauxhall Estates v Liverpool Corporation [1932] 1 KB 133
and Ellen St Estates v Minister of Health [1934] 1 KB 590,

Answer 12

The theory was borne out in the cases of Vauxhall Estates v Liverpool Corporation [1932] 1 KB 133 and Ellen St Estates v Minister of Health [1934] 1 KB 590, which both involved compensation for landowners whose property had been compulsorily purchased under legislation passed after the First World War.

Question 13

Housing Act 1925.

Answer 13

In both cases, the defendants were told that their compensation was to be assessed according to the terms of the Housing Act 1925. They argued, however, that the assessment should be calculated according to the (more generous terms) of the Acquisition of Land Act 1919. The 1919 Act had expressly stipulated that its provisions were to prevail over any other statutes (thereby trying to prevent future implied repeal).

Question 14

Parliament is not able to bind its successors

Answer 14

The courts denied that the 1919 Act was intended to have that effect but, significantly, they added
that, even if this had been the intention, the 1919 Act still could not have prevented the 1925 Act
from impliedly repealing it, as Parliament is not able to bind its successors. The terms of the later
1925 Act were therefore applied.
Note a more modern and very significant proviso to this part of the theory, as set out by Laws LJ
in the case of Thoburn v Sunderland City Council [2002] EWHC 195 (Admin).

Question 15

1.6 Validity of Acts of Parliament

Answer 15

The third limb of Dicey’s theory follows naturally from the basic doctrine that law created by
Parliament is supreme. It rests on the notion that Acts of Parliament are the highest form of law, so neither the manner in which legislation is passed, nor the substance of the law, should be
reviewable by the courts.

Question 16

Procedural Inequality: UK courts are not able to quash or invalidate primary legislation

Answer 16

Unlike the situation in many other democratic states, therefore, the UK courts are not able to quash or invalidate primary legislation, even if this legislation might be deemed ‘unconstitutional’ or contrary to international law standards. This also means that Diceyan theory does not allow for judicial review of any alleged procedural irregularity in the way that statute had gone through Parliament during the legislative process.

Question 17

1.6.1 Enrolled Bill rule

Answer 17

This ‘rule’, applied historically by the courts, effectively means that if a bill has been enrolled - ie it has become an Act of Parliament - it is impossible to go behind that. Any departure from normal procedure during the passage of the bill cannot be corrected by the courts.

This approach was evident in two significant cases: Edinburgh and Dalkeith Railway v Wauchope
(1842) 8 ER 279 (HL) and Pickin v British Railways Board [1974] AC 765

Question 18

Lord Morris Judgement

Answer 18

When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the
enactment: there must be none as to whether it should be on the Statute Book at all.

Question 19

1.7 Parliamentary sovereignty and the character of the constitution

Answer 19

The Diceyan conception of parliamentary sovereignty can therefore be seen as a primary element in forging the traditional character of the UK constitution.
The supreme authority of statute law and the apparent impossibility of entrenchment of constitutional basics means that the UK has a potentially highly flexible constitution. It also enhances the broadly political character of the UK constitution in which political ‘drivers’ of change tend to be more significant than fundamental constitutional rules.

Question 20

1.8 Summary

Answer 20

Professor A. V. Dicey’s works, including the Study of the Law of the Constitution, set out the theory of parliamentary sovereignty in the UK.

• The key components of Dicey’s theory include:
• Parliament as the supreme law-making authority
• The inability of Parliament to bind itself
• The associated concept of implied repeal
• The inability of any other body or person to question an Act of Parliament
• Contemporary law and politics highlight the limitations of Dicey’s theory.

Question 21

2. Limitations on parliamentary sovereignty

Context

Answer 21

The essence of Professor A.V. Dicey’s theory, which has been a mainstay of UK constitutional law since the late 19th century, is that the Westminster Parliament has unlimited legal powers.

No substantive or procedural limitations can in theory therefore apply to its legislative powers.
In the intervening years, however, a number of legal and constitutional developments have taken place and a number of challenges have been brought to the courts which have arguably diluted the purity of Diceyan doctrine.

Note that this subject area is controversial and remains politically highly contentious – concerns
about sovereignty have formed the theoretical backdrop to many significant political trends,
including the UK’s recent separation from the EU.

Question 22

2.2 Procedural limitations

Answer 22

One of the issues that has arisen has been whether it is possible for Parliament to introduce procedural requirements to make it harder for subsequent parliaments to change the law, for instance by requiring prior popular approval for repeal in a referendum.

Question 23

Entrenchment by ‘manner and form’.

Answer 23

This idea is what is known as entrenchment by ‘manner and form’.
The orthodox Diceyan view is that, while a parliament could pass a statute that required a special
procedure for its amendment or repeal, this requirement would not be binding on a successor parliament.Additionally, the courts would not consider a challenge to the subsequent incompatible statute
because of the ‘enrolled bill rule’ laid down in Pickin v British Railways Board [1974] UKHL 1.

Question 24

2.2.1 Commonwealth cases

Answer 24

There has been academic argument over this issue, however, inspired initially by the Privy Council
case of Attorney General for New South Wales v Trethowan [1932] AC 526. This concerned the legislature of New South Wales, Australia, which had originally been created
by the UK Parliament in 1823.

In 1929, legislation was passed in New South Wales which prohibited the abolition of the upper chamber of the legislature without referendum approval. The following year, the legislature passed two Bills designed to abolish the upper chamber without holding the required referendum.

The Privy Council granted injunctions preventing royal assent from being granted to the Bills because they had not been passed in the correct manner.

Question 25

Not a sovereign legislation

Answer 25

Critics of the manner and form argument have pointed out that the New South Wales legislature was a creation of the UK Parliament and was subordinate to it. It was not a sovereign legislature and so its legal position was quite different from that of the UK Parliament itself.

The possibility of manner and form entrenchment only therefore seems to apply – according to this reasoning – to subordinate legislatures, such as the devolved assemblies in the UK.

Question 26

Referendum lock

Answer 26

Arguments have persisted, however, and the issue came to the fore again with the European Union Act 2011, which introduced a ‘referendum lock‘. This was a statutory framework requiring a referendum to be held before further amendments could be made to the founding Treaties of the
EU. The referendum lock provision in the Act seemed to extend this pledge beyond the life of that Parliament by creating a manner and form requirement.

Question 27

Status of the Lock

Answer 27

(Note, however, that the status of the lock was never tested in the courts before the UK left the EU.)
The debate over the possibility of procedural limitations on Parliament’s powers has continued in some significant obiter discussion in the higher courts.

In Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), Laws LJ asserted that ‘Parliament […] cannot stipulate as to the manner and form of any subsequent legislation’.

Question 28

Jackson v AttorneyGeneral [2005] UKHL 56. Lady Hale stated

Answer 28

If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement
for the consent of the Upper House, [ie via the Parliament Acts] it may very well be that it can also redefine itself upwards, to require a particular parliamentary majority or a popular
referendum for particular types of measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed.

Question 29

2.3 Legislative independence

Answer 29

One of the most notable historical challenges to the notion of Westminster omnipotence has been
the ending of Empire and partial erosion of the Union (of the UK).
There has always been a different conception of the powers of Westminster in Scotland to that
held in England and Wales. See for example the approach taken by the Scottish judiciary in cases such as MacCormick v Lord Advocate [1953] SC 396.

Question 30

Acts of Union

Answer 30

The theory behind this was that the Acts of Union were not created by the UK Parliament but by the original English, Scottish and Irish Parliaments. Hence, the Acts created a new UK Parliament that did not have unlimited sovereignty but was limited by its founding constitutional documents. In the words of Professor J. Mitchell, the new Parliament was ‘born unfree‘.

Question 31

2.3.1 The ‘Dominions’

Answer 31

Starting with Canada (in 1867) and subsequently (in 1901 and 1907 respectively) with Australia
and New Zealand, Dominion status was given to recognise a number of semi-independent states under the British Empire.

The Dominions’ constitutions were established by UK Acts of Parliament. A constitutional convention developed that no new UK Act affecting a Dominion would be passed without the request and consent of that Dominion - in recognition of their autonomous status.

This was confirmed in s 4 of the Statute of Westminster 1931, which required there to be a recital
in the relevant legislation of the request and consent from the Dominion.

Question 32

2.3.2 Impact on Westminster sovereignty

Answer 32

The political reality of the autonomy (and subsequent complete independence) granted to the
Dominion nations subsequently caused significant conceptual challenges to the original Diceyan
doctrine of parliamentary sovereignty

Question 33

Reducing own sphere of political authority

Answer 33

In granting Dominion status to the three original countries (and subsequently six others) the
Westminster Parliament had effectively legislated to reduce its own sphere of political authority.
In UK terms the most significant development was the granting of Dominion status to the new Irish
Free State in 1922 (subsequently the Republic of Ireland from 1949), comprising all the island of
Ireland except the six north-eastern counties of Northern Ireland.

Question 34

2.3.3 Legal authority of Westminster?

Answer 34

The problem for the courts since these developments has been reconciling the undoubted political
diminution of Westminster authority with the orthodox legal principle in Dicey’s theory.

Some judges have been at great pains to state that political change has not diminished the unlimited legal authority of Parliament – see, for example, Megarry VC in Manuel v Attorney General [1983] Ch 77.

Others have emphasised that political and legal authority operate on entirely different planes, as
Lord Denning put it in Blackburn v Attorney General [1971] 1 WLR 1307, a case concerning UK membership of the (then) European Economic Community

Question 35

Statute of Westminster 1931

Answer 35

We have all been brought up to believe that, in legal theory, one parliament cannot bind
another and that no act is irreversible. But legal theory does not always march alongside
political reality. Take the Statute of Westminster 1931 […]. Can anyone imagine that Parliament could or would reverse that statute? Take the Acts which have granted independence to the Dominions […]. Can anyone imagine that parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away.
Legal theory must give way to practical politics.

Question 36

2.4 Impact of devolution

Program of Devolution

Answer 36

We have seen at the start of the course how the programme of devolution, which has been
underway since 1998, has shaped the constitution of the UK, as well as how it has been implemented.
One cannot directly compare the degree of autonomy given to Scotland, Wales and Northern
Ireland to the more significant semi-independence given to the Dominion countries in the late 19th/early 20th centuries.

Question 37

Direct rule‘ from Westminster

Answer 37

In the past, autonomous powers given by Westminster have been suspended or taken away. For
instance, ‘Direct rule‘ from Westminster was imposed on Northern Ireland from 1972 to 1998, after the province had been run by its own ‘Government’ in Stormont from 1921. Significant layers of local government have also been abolished – notably the Thatcher
government’s abolition of the GLC (Greater London Council) in 1986.

Question 38

Enhanced devolution

Answer 38

Nevertheless, an argument can be made that, in the absence of more dramatic political events (as
occurred in Northern Ireland), the political acceptance of devolution in Scotland and Wales means that it is very difficult to see how the original devolution would be reversed. This is even more the case given the political direction of travel of the policy - ie towards enhanced devolution, and in Scotland’s case the possibility of a further independence referendum.

Question 39

Political limitation

Answer 39

This is, of course, a political limitation on the authority of the Westminster Parliament rather than a legal one – Parliament could still ‘unmake’ this law and any other in Diceyan theory – but in practical terms it arguably takes the orthodox theory into abstract territory.

Question 40

2.5 Summary

Answer 40

The sovereignty of the Westminster Parliament can arguably be limited by:

• Parliament divesting itself politically of areas once under its own authority
• Devolved legislation
• ‘Practical politics’ (per Lord Denning in Blackburn v AG)

Question 41

3 Impact of EU membership

3.1 Context

Answer 41

The orthodox Diceyan theory on parliamentary sovereignty is based on the idea that the legal
authority of the Westminster Parliament is unlimited.

It is also apparent, however, that over time Westminster has given away political authority to
newly independent nations and arguably diluted it in respect of the devolution arrangements
within the UK.

It’s also crucial to assess how the 47-year experience of the UK’s membership of the European
Union (EU) and its predecessor bodies has impacted on the doctrine of parliamentary supremacy.

Though this membership is now at an end, it will also continue to have a significant future bearing
on constitutional law in the UK.

Question 42

3.2 UK as a ‘dualist’ state

Answer 42

Unlike ‘monist’ states, in which domestic and international law obligations operate on the same
plane, the UK is a dualist state, in which there is a distinction between the two sources of law.

As seen in cases such as Mortensen v Peters, domestic law has a higher status in the UK legal system, because this is created by the sovereign Parliament. If Parliament therefore wishes international legal systems or sets of standards to be enforced, it needs firstly to ‘incorporate‘ this body of external law into the UK legal system by passing a statute to that effect.

This is what was done in 1972 with the passing of the European Communities Act (ECA). As we will
see later, a similar process occurred in 1998 with the passing of the Human Rights Act, which
incorporated the European Convention on Human Rights.

Question 43

3.3 EC/EU Treaty obligations

Answer 43

The UK signed the Treaty of Accession in 1972 and became a full member of the European
Communities (now known as the European Union) from 1 January 1973. In order to incorporate the Treaty of Rome 1957 into domestic law, Parliament passed the ECA
1972.

Since then, a number of other treaties have modified or amended the original Treaty. This includes
the Maastricht Treaty which first established the European Union. These have also been incorporated into UK law by statute amending the ECA.

For the sake of clarity, the body of law created by both the European Communities and the
European Union will simply be referred to as ‘EU law’.

Question 44

3.4 The ECA 1972

Answer 44

There are three key provisions in the ECA in relation to sovereignty.
Section 2(1) gave effect to EU law within the UK. It provided that:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further
enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed, and followed accordingly […].

Question 45

3.4.1 ECJ jurisprudence

Answer 45

Section 3(1) provided that questions of law relating to the EU should be determined according to the principles laid down by the European Court of Justice (ECJ). This gave effect to the case law of that court (more recently known as the Court of Justice of the European Union – the CJEU).

Most significant of all the principles of EU law that have been established - and one that was already laid down by the ECJ a decade before UK accession - was that of the supremacy of EU law over domestic law, (now known as the ‘primacy’ of EU law)

Question 46

EU law must prevail

Answer 46

This principle was established in the case of Costa v E.N.E.L. (Case 6/62) [1964] ECR 585. It stipulates that EU law cannot be overridden by the national law of the Member States. In the event that the two are in conflict, EU law must prevail.

The clear difficulty faced by the UK has been that the traditional account of parliamentary sovereignty insists that no one or no body is competent to override or set aside an Act of
Parliament.

Question 47

3.4.2 ECA and primacy of EU law

Answer 47

Section 2(4) of the ECA sought to accommodate the primacy of EU law more specifically – it
provided that:
[…] any enactment passed or to be passed shall be construed and have effect subject to [EU Law]. The application of this section was relatively straightforward in relation to any UK statutes enacted before the ECA 1972.

The doctrine of implied repeal operated to ensure that any pre-1972 statutes, which were
incompatible with EU law, would be overridden by the ECA itself, thereby satisfying both the demands of EU law and those of parliamentary sovereignty.

Question 48

Countering the principle of Vauxhall Estates and Ellen Street Estates

Answer 48

This created a clear tension with the principle of parliamentary sovereignty as it appeared to run
counter to the principle in Vauxhall Estates and Ellen Street Estates that Parliament cannot bind itself so as to prevent a later statute from impliedly repealing an earlier statute.

That raised the question of whether s 2(4) could have the effect of enabling EU law to override
subsequent statutes?

Did it mean that implied repeal was no longer relevant in the context of EU law?

Had the 1972 Parliament bound future parliaments?

Question 49

3.5 Early case law

Answer 49

The period from UK accession up to the late 1980s offered no final resolution of these difficult
questions. At that point they were still conceptual. In a series of cases – many in relation to employment rights – the UK courts continued to show some allegiance to traditional notions of parliamentary sovereignty but largely managed to
resolve issues by applying a presumption that, whenever it passed legislation, Parliament was
intending to comply with EU law. Any inconsistency between the two sources of law could be put
down to oversight by the draftsman.

Question 50

Macarthys Ltd v Smith [1979] All ER 325

Answer 50

As an example of this kind of approach, see Macarthys Ltd v Smith [1979] All ER 325. Here the
Court of Appeal accepted that, by virtue of ss 2(1) and 2(4) ECA 1972, EU law would take precedence over the relevant statute, if it proved to be inconsistent with that statute.

Question 51

3.6 Crunch point - Factortame

Answer 51

The relative finesse of this approach, based on a purposive approach to statutory interpretation -
the purpose being to achieve harmony where possible between EU law and existing UK law - was
of no assistance, however, in a landmark case heard in 1990.

This involved a dispute between the Secretary of State for Transport and a number of companies,
headed by Factortame Ltd, over the application of restrictive provisions in the Merchant Shipping
Act 1988.

The UK government had introduced this legislation specifically to cut back on a practice known as ‘quota hopping’ which was seen as damaging to the UK’s national fishing industry, as it allowed foreign-based ships to take advantage of UK fish quotas, if the companies were registered in the UK.

Question 52

3.6.1 Factortame – the facts

Answer 52

The applicant companies, which were incorporated under UK law, owned 95 fishing vessels. They
were mainly owned and managed by Spanish nationals, but their vessels had previously been registered as British under an Act of 1894.

When the law was changed with the passing of the Merchant Shipping Act (MSA) 1988, these vessels had to be re-registered. The applicants’ vessels failed to qualify under the new regime because they were largely
managed and controlled from Spain.

The companies therefore sought to challenge the legality of the relevant new statutory provisions on the ground that they contravened the provisions of the EEC Treaty and other aspects of EU law, as incorporated by the ECA 1972.

Question 53

3.6.2 Quandary for the UK courts?

Answer 53

Unlike in the earlier line of cases, where it had generally been possible for EU law and UK law to be
harmonised, this was not an option in relation to the MSA 1988. This was because the new statute operated in direct contravention of key principles in EU law, notably freedom of establishment. Initially, the law lords refused the granting of interim financial relief to the companies, as they did not believe they had jurisdiction in the circumstances where domestic law appeared to preclude it. The matter was then referred to the ECJ for a ruling.

Question 54

Key case: R v Secretary of State for Transport, ex parte Factortame Ltd. (No. 2) [1991] 1 AC 603

Answer 54

Following the ECJ’s response to the reference, the law lords convened to give the key judgment in
this long-running litigation. This case is one of the most important in UK constitutional law. It established that the courts could now suspend an Act of Parliament where they were required to do so by EU law.

This caused a degree of political consternation at the time. However, Lord Bridge insisted that the
principle of the supremacy of EU law was well established by the time that the UK had joined and that, in enacting the ECA 1972 Parliament had ‘voluntarily’ signed up to a ‘limitation’ on its own
sovereignty.

Question 55

Public comments on the decision of the European Court of Justice

Answer 55

Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have
suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament

Question 56

European Communities Act 1972

Answer 56

But such comments are based on a
misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the E.E.C. Treaty […] it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community.

Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. […]

Question 57

Duty of a United
Kingdom court

Answer 57

Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments.

Thus, there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to
insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more
than a logical recognition of that supremacy.

Question 58

Per Lord Bridge

3.7 Post-Factortame

Answer 58

Factortame put it beyond doubt that EU law could override or ‘disapply’ conflicting UK statutes enacted after 1972. Subsequent cases went further by disapplying provisions within statutes that clearly conflicted with EU law, even without a reference to the ECJ.

The ability of the courts to do this was made clear in R v SoS Employment, ex parte Equal
Opportunities Commission [1995] 1 AC 1, a case involving the rights of part-time workers under the
Employment Protection (Consolidation) Act 1978

As part-time workers were predominantly female, the EOC argued that the statute indirectly
discriminated against women contrary to EU law. The House of Lords agreed and granted a
declaration to that effect. As a result, industrial tribunals in the UK subsequently ignored the
wording of the Act and granted part-time workers compensation rights if they had completed two
(rather than previously, five) years employment.

Question 59

3.7.1 ’The Metric Martyrs’

Key case: Thoburn v Sunderland City Council [2002] EWHC 195

Answer 59

This case involved market traders - the self-named ‘Metric Martyrs’ - who were convicted for
using imperial measures (ie pounds and ounces) contrary to legislation enacted to implement a
European directive.
They alleged in their appeal that the ECA 1972 (through which the directive had been implemented
into UK law) was incompatible with the later Weights and Measures Act 1985, which allowed for
the use of both metric and imperial measurements.

Question 60

Implications of the ECA 1972

Answer 60

Their point was that the 1985 Act impliedly repealed the relevant aspect of the ECA 1972.
On the facts Laws LJ found no incompatibility, but he proceeded to make a number of obiter
points which have been very influential in the modern debate over sovereignty.

Laws LJ’s contribution to the debate centred on the reasons for why the Diceyan doctrine of implied repeal no longer seemed to operate in relation to cases such as Factortame.

He concluded that EU law was able to prevail over incompatible domestic statutes because an
exception had been created to the doctrine of implied repeal.
He saw this to be a reflection of the existence of a hierarchy of statutes – these could be divided
into ‘ordinary’ statutes and ‘constitutional’ ones.

These had certain key features and included: the ECA 1972 and other very significant statutes such as the Human Rights Act 1998, the devolution Acts of 1998, the Bill of Rights 1689 and the Parliament Act 1911.

Question 61

3.7.2 Laws LJ – constitutional statutes

Answer 61

Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a Constitutional Act […] the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation?

I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes.

Question 62

3.8 Reflections on ECA and sovereignty

Answer 62

Following the departure of the UK from the EU, it is clear that the impact on parliamentary
sovereignty was a significant but temporary one. The fact that the courts enforced principles of EU law over domestic statutes – illustrated most notably in Factortame – shows that it is possible for one parliament (in 1972) to have bound future
parliaments in a substantive way.
However, the binding effect only lasted for as long as Parliament – as a continuing institution – wished to be bound by it.

Ultimately, therefore, Parliament can impose limitations upon itself, but the principle remains, because it cannot prevent future parliaments removing those restrictions (assuming, of course,
that it is still politically possible to do so).

Question 63

3.9 Summary

Answer 63

• The UK constitution is ‘dualist’, meaning that international agreements must be enacted in
  domestic legislation before they can take effect in domestic law.
• Via the ECA 1972, European Union law was effectively incorporated into domestic law, and was
  given supremacy. The ECA 1972 has now been repealed.
• Following the UK’s accession to the EEC, the UK courts initially took a purposive approach to
  the application of Community law.
• The key case of Factortame made it clear that EU law could override or ‘disapply’ conflicting
  UK statutes enacted after 1972. Subsequent cases went further by disapplying provisions
  within statutes that clearly conflicted with EU law, even without a reference to the European
  Court of Justice.

Question 64

4 Impact of the Human Rights Act 1998

4.1 Incorporation of the European Convention on Human Rights

Answer 64

The protection of rights through the Human Rights Act 1998 (HRA) will be covered in separate materials. However, it is important at this stage to consider the extent of the HRA’s impact in relation to the doctrine of parliamentary sovereignty.

The first point to note about the HRA is that, in a very similar way to what happened in 1972 with ‘EU law’, it incorporated the ECHR (or almost of it) into UK domestic law. This shows again how, in the UK’s dualist system, a body of international law has to be brought within the domestic system by the passing of statute.

(Note that the European Convention on Human Rights - the ‘ECHR’ - is a totally different body of
law to that of ‘EU law’.)

Question 65

4.2 Context

Answer 65

The doctrine of parliamentary sovereignty remains the foundation on which the UK constitution
rests. The UK’s near half-century membership of the EU has presented a challenge to the orthodox Diceyan theory which informs the doctrine of parliamentary sovereignty.

Though it clearly had the most significant impact, the ECA 1972 has not been the only development to have diluted the purity of the doctrine. Another very important legal development, which has also caused some tension in this context, is the system of rights enforcement introduced by the Human Rights Act 1998.

Question 66

4.3 Key sections of the HRA

Answer 66

Relating to the effect on parliamentary sovereignty, the key sections of the HRA are:
* Section 2 – interpretation of ECHR rights
* Section 3 – interpretation of legislation
* Section 4 – declarations of incompatibility (and section 19 – statements)
* Section 6 – enforcement of rights (and ‘statutory defence’)

Question 67

4.4 Section 2 HRA

Answer 67

This section requires that any ‘court or tribunal determining a question which has arisen in connection with a Convention right must take into account’ the jurisprudence of the European Court of Human Rights (in Strasbourg) ‘so far as, in the opinion of the court or tribunal, it is
relevant to the proceedings in which that question has arisen’.

In the early days of the HRA the UK courts took this as a strong direction and Lord Bingham developed a line subsequently known as the ‘mirror principle’ in R (Ullah) v Special Adjudicator [2004] UKHL 26.
The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over
time: no more, but certainly no less.

Question 68

4.4.1 Dialogue

Answer 68

In more recent years, however, the courts have been bolder in arguing for a development of the
law that preserves the autonomy of English law in situations where jurisprudence from Strasbourg
may be less relevant or attuned to the particular nature and culture of the common law system.
The idea is that there should be ‘dialogue’ between UK courts and the ECHR - in other words each
court can learn from the other in how best to maintain and promote ECHR rights.

Examples of cases in which this approach has been taken have included R v Horncastle [2009]
UKSC 14 and R (Haney) v SoS for Justice [2014] UKSC 66.
Assertions made that the UK higher courts have lost autonomy at the hands of Strasbourg seem
therefore to have been over-played.

Question 69

4.5 Section 3 HRA

Answer 69

This has probably been the most controversial provision within the HRA in the eyes of those who
have concerns over the maintenance of orthodox sovereignty. Section 3 of the HRA states that: […] so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights.
It therefore applies a strong obligation on UK courts to strive to interpret existing legislation in an
ECHR-compatible way.

Question 70

4.5.1 Impact on sovereignty?

Answer 70

The issue in relation to s 3 HRA has been whether in practice this interpretive power has given the
judiciary the ability to over-ride the apparent intention of Parliament when it passed the original
legislation.

Concerns on this score were heightened after the first major case reaching the higher courts on
this point – a criminal law case, R v A (Complainant’s Sexual History) [2002] 1 AC 45, in which the Defendant claimed that his Article 6 rights to a fair trial were compromised by very restrictive provisions that had been introduced in s 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA).

These had the apparent effect of preventing him from bringing in any evidence about the complainant’s past sexual history, which he needed to do in order to put forward his defence of consent

Question 71

4.5.2 Lord Steyn’s use of s 3 powers

Answer 71

Lord Steyn, who gave the lead judgment in R v A (CSH), emphasised that the interpretative obligation in s 3(1) of the HRA 1998 was a strong one. He gave effect to this by reading a new provision into s 41 of the 1999 Act that evidence or questioning, which was required to ensure a
fair trial under Article 6 of the ECHR, should not be treated as inadmissible.

In subsequent cases – which will be considered in other materials – the courts have confirmed Lord Steyn’s view that in some circumstances it may be necessary for a s 3 interpretation to be made that appears to conflict with parliamentary intention.

However, the courts have stressed that this is only appropriate where the interpretation does not go ‘against the grain’ of the underlying policy and scheme of the original legislation.

Question 72

4.5.3 Status of the HRA?

Answer 72

There is no doubt, therefore, that s 3 gives the courts a powerful interpretive tool and one which
can be seen as interventionist to an extent that even goes beyond modern forms of purposive
statutory interpretation.

In relation to the wider issue of sovereignty, one can see a similar (though less pronounced) type
of effect as that which occurred under s 2 of the ECA 1972. The HRA in effect has a higher status
than an ‘ordinary’ statute.

Even though the YJCEA in the R v A (CSH) case was passed subsequently to the HRA, this later Act
was ‘governed’ by the terms of the dominant, ‘constitutional statute’. The HRA provided the
power that allowed the judiciary to read in Convention rights standards (incorporated by the HRA)
to all subsequent ‘ordinary’ statutes.

Question 73

4.6 Section 4

Answer 73

Section 4(2) of the HRA states that:
If the court is satisfied that [a] provision is incompatible with a Convention right, it may make a
declaration of incompatibility.
On face value this power seems to allow the courts to evaluate statutory provisions and therefore
looks equivalent to the kind of ‘strike down’ powers that are available to supreme courts in many
other democratic states.

However, it is important to note that a declaration of incompatibility has a political rather than a legal effect. It does not invalidate the law that has been deemed incompatible – see s 4(6) HRA. It merely flags up the fact that it is incompatible. It is then a matter of political judgement for the
relevant minister as to how to react

Question 74

4.6.1 Function of s 4 HRA

Answer 74

Section 3 or section 4 are effectively alternative powers that the court can utilise if incompatible
legislation appears to have facilitated the violation of an ECHR right.
When a declaration is made under s 4, this is seen as a significant intervention and, in most
instances, the politicians do take steps to remedy the incompatibility in the law (though they are
not compelled to). One of the most notable examples of use of s 4 we have seen so far was in A & Others (the Belmarsh case) [2004] UKHL 56, following which the government did re-evaluate its anti-terrorism
policy. Some academic thinkers have even categorised s 4 as a mechanism which achieves an indirect
form of constitutional review of legislation (in practical reality rather than in absolute terms).

Question 75

4.7 Section 19 HRA

Answer 75

Note also that, before legislation is passed, the sponsoring minister in Parliament has a duty
under s 19 HRA to make a statement (before second reading) in relation to the compatibility of the Bill’s provisions with Convention rights.

The Minister can either state that these are compatible or, if it is anticipated that they are not,
that the government nevertheless wishes the House to proceed with the Bill.

This emphasises the essentially political approach to compatibility with the ECHR. It is possible
for Parliament, at the government’s behest, to pass legislation that is or may be incompatible with
the ECHR as long as a statement is made to that effect.

Ultimately, however, it is for the courts to decide on compatibility and there have been instances
when legislation, which was given a positive s 19 statement in Parliament, has later turned out not
to be following review by the courts.

Question 76

4.8 HRA – as accommodation with sovereignty

Answer 76

Overall, it is possible to see the design of the HRA as representing an accommodation between stronger rights protection – clearly the main purpose of the Act – and the need not to undermine the traditional doctrine of parliamentary sovereignty.

The effect of s 4 is important in this, as also is the defence that public authorities can plead under s 6(2) HRA to a claim that they have violated an individual’s ECHR rights.
The basic duty falling on public authorities – under s 6(1) HRA – is that they must act in a way
that is compatible with ECHR rights.

However, the s. 6(2) defence effectively allows a public
authority to plead that it was obliged or allowed to violate an ECHR right because of the operation of incompatible legislation (which it has not been possible to make compatible using s 3 powers).

If all violations were automatically deemed unlawful, then that would certainly have had a considerably greater impact on Dicey’s theory.

Question 77

4.8.1 Ultimate effect of HRA?

Answer 77

There is some debate therefore over the effect of HRA on the orthodox theory, as matters stand.

However, in ultimate terms, as has been shown with Brexit, it is perfectly possible for Parliament to
undo what the 1998 Parliament did.
For as long as the HRA remains in place, it will have a dominant effect as a ‘constitutional statute’.

But its effect will only be evident for as long as subsequent parliaments wish it to and, clearly, there has already been considerable debate about whether the Act should be repealed.

It is strongly arguable that the HRA, as it stands, does not fundamentally undermine the basic
supremacy of Parliament as a continuing sovereign institution.

Question 78

4.9 Summary

Answer 78

• As the UK is a dualist state, the European Convention on Human Rights was incorporated into
  domestic law by the Human Rights Act 1998.
• Sections 2, 3 and 4 of the HRA are key when examining the Act’s impact on parliamentary
  sovereignty.
• As a result, domestic legislation must be interpreted, if possible, in a way which gives effect to
  the ECHR. If this cannot be achieved, a ‘declaration of incompatibility’ may be made.
• The jurisprudence of the European Court of Human Rights must be taken into account by
  domestic courts.
• The overall effect of the HRA on parliamentary sovereignty is debatable.

Question 79

5. Parliamentary sovereignty and the common law

5.1 Context

Answer 79

The traditional Diceyan theory of parliamentary supremacy has come under pressure over the
last half-century as a result of several significant legal and political developments. These have been brought about by Parliament itself through the passing of reforming constitutional legislation.

In other words, Parliament has imposed limitations upon itself as an
institution which are binding, but only for as long as subsequent Parliaments wish them to be.
However, other developments have taken place in the common law sphere that have arguably
also had the effect of modifying the purity of Diceyan doctrine.

Question 80

5.2 ’Principle of legality’

Answer 80

When looking at the rule of law, the modern judiciary has sought to protect rights and freedoms through the way in which it carries out its role in interpreting legislation

Question 81

Key case: R v SoS Home Department ex parte Simms [2000] 2 AC 115

Answer 81

In this case, Lord Hoffmann made the significant observation, which he referred to as the principle
of legality, that:

Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.

In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

Question 82

5.2.1 Statutory presumption

Answer 82

However, he made the crucial proviso that, if Parliament wishes to do this, it must state its intention in crystal clear terms. Otherwise, the courts will apply the strong presumption that Parliament did not intend to restrict rights.

One can see this therefore as a very mild form of entrenchment of fundamental rights. These cannot be casually set aside - if a government wishes to restrict rights, it has to set out its legislation in Parliament in a completely transparent way, and it has to accept any ‘political cost’ for doing so.

Question 83

Lord Hoffmann’s elaboration

Answer 83

Elaborates on his point by arguing that this approach achieves a vital
constitutional purpose. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in
countries where the power of the legislature is expressly limited by a constitutional document.

It is debatable whether these principles are applied in a way that is only a ‘little different’ from other democratic states with codified constitutions. However, one can see here the subtle way in which the judiciary seeks to exercise a real influence over the implementation of the law.

Question 84

5.3 Exclusion of court jurisdiction

Answer 84

One of the most notable ways in which the courts have modified the application of legislation in order to protect rights has occurred in issues relating to the courts’ own rights to determine judicial review challenges.

As will be seen in more detail in other materials, there have been legislative attempts to ‘oust’ the
courts’ rights to scrutinise governmental actions and decisions through judicial review.

‘Ouster clauses’ are sometimes included in legislation in order to try to prevent decisions made using the relevant statutory powers being reviewed in court.

The courts’ attitude towards these has been universally hostile and has been evident since the late
1960s since the leading case of Anisminic.

Question 85

5.3.1 Anisminic

Key case: Anisminic v Foreign Compensation Commission [1969] 2 AC 137

Answer 85

In the context of this case, s 4(4) of the Foreign Compensation Act 1950 provided that:

The determination by the commission of any application made to them under this Act shall not
be called in question in any court of law.

Anisminic Ltd. wished to challenge a decision of the FCC on the basis that it had misconstrued the legal effect of the statutory framework under which it operated. The law lords held that the ouster clause did not prevent it from challenging the FCC’s decision.

Lord Reid’s statement: It is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a provision is reasonably capable of
having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.

Question 86

5.3.2 Ouster clauses – and sovereignty

Answer 86

The subsequent history of governmental attempts to include ouster clauses in legislation has been
a generally fractious one.

The courts see ouster clauses as an affront to its constitutional purpose of holding the Executive to account, and, as in Anisminic, they have tended to use highly purposive forms of statutory interpretation to bypass the apparent intention of Parliament in the original legislation.

This approach is illustrated in cases such as R v Home Secretary, ex parte Al Fayed [1997] 1 All ER 228 and, more recently, in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC
22.

Extra-judicial disapproval of the tactical device of ouster clauses also tends to be vociferous, notably during debate over the Asylum and Immigration (Treatment of Claimants) Bill in 2003-4.

Question 87

5.4 Legality principle expanded

Answer 87

The legality principle was not established in the Simms case, even though it is usually associated
with it, given the significant influence of Lord Hoffmann’s speech.

It can be traced to a series of cases in the 90s, starting with R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994] QB 198 which concerned prison rules permitting the interception of legal correspondence between a prisoner and his lawyers.

The Court of Appeal held that these interfered with a constitutional right to the free flow of communications between a solicitor and a client about contemplated legal proceedings.

And it also made clear that this interference could only be authorised by express words in the
statute or by necessary implication.

Question 88

5.4.1 Witham

R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779

Answer 88

This approach was also used in R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779 to challenge the scale of court fees set by the Lord Chancellor under the authority of a statutory instrument.

Witham wished to sue for defamation but could not afford the court issue fee of £500, as he was
unemployed. (His request for a waiver of the fee was dismissed.)
He sought judicial review of the Lord Chancellor’s decision in setting the court fees.

He argued that his right of access to the court was being denied by the scale of fees and the court’s refusal
to waive them. It was held that the Act did not authorise the Lord Chancellor to set fees at such a level that access to the courts, a fundamental right, was denied. The statutory instrument was declared to
be ultra vires the Act.

Question 89

5.5 Common law constitutionalism

Parallel route for rights protection

Answer 89

The courts in recent years have been developing a body of principle known as ‘common law
constitutionalism’. To a large extent this can be seen as an extension of the case law developed in
the late 90s.

Arguably both trends represent a way in which the judiciary seek to modify and temper the
potentially more alarming consequences of a system built on Dicey’s theory of unlimited
parliamentary supremacy.

The modern line of cases have effectively created a parallel route for rights protection, operating
alongside the more formal enforcement process created by the HRA 1998. (Some have speculated
that this represents a form of judicial ‘insurance policy’ in the event that the HRA is repealed in future…)

Question 90

5.5.1 Context

Answer 90

There have been several very significant cases over the last decade or so that can be placed
under this broad banner.
Critics of judicial ‘activism‘ would point to them as examples of judicial overreach distorting apparent parliamentary intention. Supporters would point to the vital role of an independent judiciary developing principles that are designed to maintain and promote constitutional
safeguards and to ensure that government is held to account.

There is nothing new as such in the courts developing basic legal principles in public law any more
than in private law. We will see in other materials that the basic ‘grounds’ of JR – ideas such as
fairness and ‘reasonableness’, as well as legality – have been created by the courts. However, recent case law has arguably expanded the base.

Question 91

5.5.2 Illustrative cases

Osborn v Parole Board [2013] UKSC 61

Answer 91

He held that the Parole Board had acted unlawfully in failing to allow oral hearings for three prisoners when important decisions were being taken about their release or recall on licence.

Though the challenge to the Board had been based on Article 5(4) ECHR, Lord Reed stated that
the HRA did not:

[…] supersede the protection of human rights under the common law or statute or create a discrete body of law based upon the judgments of the European Court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the act
when appropriate.

Question 92

5.5.3 The constitutional rights?

Answer 92

Effectively Lord Reed was developing on the well-established existing principle, evident in the
common law since the 1960s, that administrative bodies such as the Parole Board had an obligation to act fairly to those about whom they were making important decisions.

In relation to the details of this case he set out a general rationale for an extension of the duty of fairness in relation to personal involvement of prisoners in the decision-making process that affected them and their future lives

Question 93

Accountability and transparency in government

Answer 93

This meant that the participation of prisoners in personal hearings was expanded, based on the principle that involvement in the process by those affected was an important personal right in itself, and was significant too in promoting accountability and transparency in government more generally.

Question 94

5.6 Access to and independence of the courts

R (Unison) v Lord Chancellor [2017] UKSC 51

Answer 94

The Supreme Court found that a new fees regime for employment tribunals was unlawful, partly on the basis of a constitutional right of access to the courts and tribunal system – often known as ‘access to justice‘. This was seen as inherent to the rule of law.

Question 95

R (Evans) v Attorney General [2015] UKSC 21

Answer 95

The constitutional principle was a broader one – the UKSC found that the Attorney General had ‘contradicted the fundamental principle that a court’s decision could not be ignored or set aside by anyone, including the executive, and that the executive’s actions were reviewable by the court’.

Question 96

5.7 Openness and transparency

Answer 96

The constitutional importance of transparency and open justice – what Lord Mance called the
‘common law presumption in favour of openness’ - was a key feature of the case of Kennedy v The Charity Commission [2014] UKSC 20.

The case concerned a journalist’s Freedom of Information Act request in relation to a charity set up by the controversial politician, George Galloway. The court’s view was that it was the role of the judiciary, through the common law, to determine the application (or otherwise) of disclosure requirements in light of the above common law presumption.

Here again one can see the centrality of common law constitutional principles in determining
such an issue.

Question 97

5.8 Jackson

Key case: Jackson v Attorney General [2005] UKHL 56

Answer 97

This has perhaps the most significant case which has highlighted and explored the potential
friction between the principles of parliamentary supremacy and the rule of law has been Jackson
v Attorney General.

The fact that this case went all the way to the House of Lords (and was determined by a full judicial panel) is highly significant in itself, as Jackson’s argument was essentially that an Act of Parliament was invalid.

Question 98

Enrolled bill rule

Answer 98

This represents a radical proposition in Diceyan terms, given earlier firm adherence by the courts to the ’enrolled bill rule’ in cases such as Pickin v British Railways Board.
Jackson’s case (as the Chairman of the Countryside Alliance) was that the Hunting Act 2005 – which banned fox-hunting – was invalid, because it had been passed under the accelerated procedure laid down in the Parliament Act (PA) of 1949.

Question 99

1949 Act was invalid

Answer 99

The root of his case was that the 1949 Act was invalid because the House of Commons alone had
amended the original Parliament Act of 1911. He argued that this was not permissible because there was an implied exception to the use of the
procedure set down in the 1911 Act, which originally established an accelerated process for passing legislation that could involve bypassing the House of Lords.

This exception, he said, meant that a ‘delegate body’ (ie a Parliament comprising only the Commons) could not increase its own powers on its own authority. It had not been able to do so, he reasoned, in 1949 and so the 1949 was effectively null and void.

Question 100

5.8.1 Obiter

Answer 100

The law lords did not accept the main arguments put forward by Jackson – they found that the
1949 Act was a valid form of legislation and so the Hunting Act as well as other Acts passed under the terms of the 1949 Act procedure were entirely valid too. However, in developing a number of obiter points, the court arrived at some more challenging ideas on the relationship between courts and Parliament.

Initially, as a spin-off from Jackson’s argument about an ‘implied exception’ to the use of the PA
procedure, the majority of the law lords made an important point about an implied exception that they thought existed. This related to the democratic safeguard that had been written into the original PA 1911.

Question 101

5.8.2 Democratic safeguard?

Answer 101

The issue mooted was whether it would be possible for a future House of Commons to extend its own lifetime (beyond the five-year limit) by adopting a two-stage process using the accelerated PA procedure - ie bypassing the House of Lords on both occasions. Firstly, by removing the express exception against doing this in s 2(1) PA 1911, and then by passing an Act to increase the lifetime of the current Parliament to, say, 10 years?

The majority answer to this hypothetical but important question was that this would not be
possible. In other words, there was an implied exception to this extent (though not to the extent
that Mr Jackson argued).

The reason given was that it was vital to maintain the very important democratic safeguard in s
2(1) by ensuring that the House of Commons could not extend its own time in power without being
checked by the House of Lords as the second chamber.

Question 102

5.8.3 Wider obiter discussion

Answer 102

Underlying the more abstracted, far-reaching debate in Jackson one can see clear judicial concern about the potential constitutional dangers of a system in which a strong central executive can use its majority in Parliament to pass legislation that may undermine fundamental rights and values. Lord Steyn referred to a ‘complaisant House of Commons’ (at para 102).

Question 103

Key anxiety of the judiciary

Answer 103

This remains a key anxiety of the judiciary and is reflected in the modern emphasis on protection
of fundamental rights through the common law.

In Jackson judges such as Steyn, Hale and Hope looked to the principle of the rule of law (in its modern substantive form) as the vital safeguard in establishing a balance in the constitution between its political and legal foundations.

Lord Hope saw the rule of law has having a key functional role in providing the necessary balance
between the different bodies of state.

Question 104

Rule of Law is ultimate controlling factor

Answer 104

The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the
limits of Parliament’s legislative sovereignty.

Question 105

Paragraph 107: Guardians of the Rule of Law

Answer 105

It was seen as the court’s role therefore – as ‘guardians’ of the rule of law – to define these limits.
Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty
is no longer, if it ever was, absolute. […] It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and
Blackstone is being qualified.

Question 106

Paragraph 104: Parliamentary sovereignty was not ‘uncontrolled’

Answer 106

The view that parliamentary sovereignty was not ‘uncontrolled’ was reflected in a more radical
way still by Lord Steyn. He mooted the possibility of the passing of ‘oppressive and wholly undemocratic legislation’ and warned that the courts may have to consider whether to recognise such legislation, based on an alternative reading of the constitutional balance.

Note from the following quote how Steyn sees the principle of parliamentary supremacy as a
product of the common law. (This remains an unorthodox view, but it does represent one logical extension of the approach that attributes the courts with the role of constitutional arbiters.)

Question 107

Doctrine of the supremacy of Parliament

Answer 107

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution.

It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this
is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish

Question 108

5.9 Summary

Answer 108

• The traditional Diceyan theory of parliamentary supremacy has come under pressure over the
  last half-century as a result of several significant legal and political developments.
• Perhaps the most significant case which has highlighted and explored the potential friction between the principles of parliamentary supremacy and the rule of law has been Jackson v Attorney General [2005] UKHL 56.
• In Jackson, Lord Steyn mooted the possibility of the passing of ‘oppressive and wholly undemocratic legislation’ and warned that the courts may have to consider whether to recognise such legislation, based on an alternative reading of the constitutional balance.