Parliamentary Sovereignty Key Cases

Question 1

AXA General Insurance v Lord Advocate: facts

Answer 1

• an appeal by insurers concerning the rejection of their challenge to the lawfulness of an Act of the Scottish Parliament
• Act widened circumstances in which asbestos-related personal injury claims could arise from that which had been laid down in an earlier court case
• insurers had based underwriting decisions on that earlier case

Question 2

AXA General Insurance v Lord Advocate: principle

Answer 2

• the courts will not entertain legislation which seeks to abolish their inherent power of judicial review
• Lord Hope held: “as I said in Jackson, the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. I would take that to be, for the purposes of this case, the guiding principle… it is not entirely unthinkable that a government may seek to use its majority to abolish judicial review”
• “the rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise”

Question 3

Burmah Oil v Lord Advocate: facts

Answer 3

• oil installations were destroyed by British soldiers during WW2 to prevent them falling into Japanese hands
• Burmah Oil, the owners, wanted compensation and the HoL ruled in favour of them receiving it
• However, Parliament then passed the War Damage Act 1965 with retroactive effect to exempt the Crown from any such liability

Question 4

Burmah Oil v Lord Advocate: principle

Answer 4

• Parliament can pass legislation which overrules an earlier decision of the Courts
• Parliament therefore has no temporal limits to its legislative powers

Question 5

Costa v ENEL: facts

Answer 5

• following Italian nationalisation of an electricity company, Costa challenged bill received from new company.
• he claimed that nationalisation offended against the Treaty of Rome.

Question 6

Costa v ENEL: principle

Answer 6

Confirmed the supremacy of EU law over domestic law

Question 7

R (Evans) v AG: facts

Answer 7

• a long-disputed case concerning Guardian Journalist who sought release of Prince Charles’ “Black Spider Memos” to Government departments
• Government had refused his request under Freedom of Information Act 2000 but Upper Tribunal had rules in favour of some disclosure
• AG issued a certificate under Act to override Tribuna’s decision on basis of constitutional conventions concerning Prince Charles’ role as future king
• judicial review of certificate was permitted; the AG’s appeal was dismissed by the Supreme Court

Question 8

R (Evans) v AG: principle

Answer 8

• Lord Nueberger, Kerr and Reed held AG could not justify issuing certificate on ground that he had reached different conclusion to Upper Tribunal, in attempt to overrule the Tribunal. That would have contradicted two fundamental principles:
  1. a court’s decision cannot be ignored or set aside by anyone, including the executive
  2. the executive’s actions are reviewable by the courts. It is “fundamental to the rule of law that decisions and actions of the executive are… reviewable by the courts at the suit of an interested citizen”

Question 9

R v Secretary of State for Transport ex parte Factortame (1 and 2): facts

Answer 9

• Spanish fishermen argued UK legislated contrary to EU law in Merchant Shipping Act 1998 which imposed nationality and residence requirements on fishermen, thereby excluding Spanish fishermen from UK waters
• sought damages from Gov
• SoS argued Gov had a wide discretion under EU law and action was necessary to alleviate economic problems facing UK fisheries
• in number one, Lord Bridge referred a question about conflicts between national and community law to the ECJ, which held that a national court has a duty to set aside statute in certain circumstances

Question 10

R v Secretary of State for Transport ex parte Factortame (1 and 2): principle

Answer 10

• HoL held that breach sufficiently serious to render UK gov liable to pay damages. While gov had acted in good faith to protect national quotas, nationality and residence requirements were discriminatory and excessive
• duty of interpretation under ECA 1972 can be seen as presenting significant threat to Parliamentary Supremacy
• court recognised EU law is supreme over national law and disapplied 1998 Act
• however, supremacy of EU law is only valid as long as Parliament allows it to be

Question 11

R (Jackson) v AG: facts

Answer 11

• case concerned challenge to validity of Hunting Act 2004
• Jackson’s argument was that Parliament Act 1949 had itself been passed without the consent of the HoL by means of the Parliament Act 1911
• HoL held that 1949 Act had been validly enacted under power contained in 1911 Act to enact legislation without the consent of the HoL and therefore the 2004 Act had also been validly enacted

Question 12

R (Jackson) v AG: principle

Answer 12

• important obiter comments about Parliamentary Sovereignty (and Rule of Law) made by Court:

Lord Steyn: parliamentary sovereignty is “a construct of the common law”

Lord Hope: “parliamentary sovereignty is no longer, if it ever was, absolute… the rule of law enforced by the court is the ultimate controlling factor on which our constitution is based”

Baroness Hale: courts may “even reject” serious attempt to subvert the rule of law i.e. if gov were to seek to get rid of judicial review

Question 13

Thoburn v Sunderland City Council

Answer 13

• also