Parliamentary Supremacy

Question 1

Parliament Act 1911

Answer 1

….abolished the Lords’ right to reject money bills which had been passed by the Commons, and curtailed the power of Lords to reject non-money bills. Such bills could only be delayed by the Lords for a two-year period. If, after two years had elapsed, the Lords still refused to accept the bill, the Act provided that the bill would nevertheless become a valid Act of Parliament if it had passed the House of Commons and received Royal Assent.

Question 2

Parliament Act 1949

Answer 2

reduces the power of the Lords to delay the passage of legislation from two years to one year

Question 3

Bill of Rights 1689

Answer 3

altered the balance of power between the monarch and Parliament in favour of the latter.

It removed the powers of the monarch arbitrarily to suspend acts of Parliament and to impose taxation without Parliament’s consent. The Bill of Rights also provided that Parliament should meet on a regular basis and that elections to Parliament should be free.

In terms of Parliamentary supremacy, the most significant part of the Bill of Rights is art 9, which provided that ‘freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

Question 4

Acts of Union 1706-07

Answer 4

United Eng and Scot under a single Parliament - contained provisions to preserve the separate Scottish legal system and the Church of Scotland. Obiter in MacCormick v Lord Advocate 1953 suggested that Plt is bound by the terms of the Act of Union.

Question 5

The Scotland Act 1998

Answer 5

Established a Scottish Parliament and Executive. Legislative powers in certain areas (such as health, education and legal affairs) are devolved to the Parliament. Other areas (such as foreign affairs and defence) are reserved to the Westminster Parliament.

Question 6

The Scotland Act 2016

Answer 6

This amends the Scotland Act 1998 and includes provisions stating that:
▪ the Scottish Parliament and Scottish Government are a permanent part of the constitutional arrangements of the UK;
▪ neither the Scottish Parliament nor Scottish Government may be abolished unless the people of Scotland vote for this in a referendum;
▪ the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

The UK Parliament will only legislate on a matter which has been devolved to the Scottish Parliament if the Scottish Parliament has given its consent (the ‘Sewel Convention’). Note that this Convention was
inserted into s 28 of the Scotland Act 1998 by the Scotland Act 2016.

The Scotland Act 2016 also increased the range of devolved powers, including the power to vary income tax rates and thresholds.

Question 7

Edinburgh & Dalkeith Railway Co v Wauchope (1842)

Answer 7

A private Act which adversely affected Wauchope’s rights against a railway company was challenged on the basis that notice of its introduction as a bill into Parliament had not been given to Wauchope, as required by the standing orders of the House of Commons.

This has become known as the ‘Enrolled Act’ rule - once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void.

Question 8

Pickin v British Railways Board (1974)

Answer 8

Lord Reid confirmed that the courts had no power to disregard an Act of Parliament, or to investigate proceedings which had taken place in Parliament to determine whether there had been any irregularity of procedure or fraud.

Question 9

R (on the application of Jackson and others) v HM Attorney-General [2005]

Answer 9

This suggests that the courts may, in certain circumstances, be prepared to consider the validity of an Act of Parliament.

The case concerned a challenge to the validity of the Parliament Act 1949. As you have already seen, the Parliament Act 1911 removed the House of Lords’ power to veto proposed legislation and essentially substituted a power of delay for up to two years, on the expiry of which period legislation could be enacted without the Lords’ consent.

The 1949 Act was enacted via this new procedure, but amended the procedure by reducing the period of delay to one year only. The issue in Jackson was whether the procedural change made by the 1949 Act was valid. If not, any legislation which depended for its existence on the post-1949 procedure was similarly invalid.

The House of Lords found that the procedural change made by the 1949 Act was valid, on the basis that there was nothing in the 1911 Act which prevented that Act from being amended by the procedure it had itself introduced. The significance of the case for present purposes lies in the fact that the House of Lords was prepared to consider the case at all. It concerned a challenge to the validity of an Act of Parliament (the 1949 Act) which was on the statute book. A strict application of the ‘Enrolled Act’ rule would have precluded the House of Lords from considering the case. However, the House of Lords held that it did have jurisdiction to consider the validity of the Hunting Act as a question of statutory interpretation of the 1911 Act, namely whether the 1911 Act could be used to enact the 1949 Act. It thus concluded that there was no conflict with the ‘Enrolled Act’ rule.

Question 10

Cheney v Conn [1968]

Answer 10

a taxpayer challenged an income tax assessment on the ground that part of the tax would be used to finance the manufacture of nuclear weapons, which was contrary to the Geneva Convention, an international treaty to which the UK was a party. The challenge was unsuccessful. The court held that the statute which imposed the tax prevailed over international law.

Question 11

Madzimbamuto v Lardner-Burke [1969]

Answer 11

In 1965, Southern Rhodesia issued a unilateral declaration of independence from Britain. However, the UK Parliament passed the Southern Rhodesia Act 1965 which declared that Southern Rhodesia remained part of the UK’s dominion territories. The validity of the Act was challenged on the basis that there was an established constitutional convention that the UK Parliament would not legislate for Southern Rhodesia without the consent of the Rhodesian Government. The challenge was unsuccessful. The House of Lords held that the convention was overridden by the Southern Rhodesia Act.

Question 12

Burmah Oil Co v Lord Advocate [1965]

Answer 12

Burmah Oil sought compensation from the British Government for the destruction of oil installations during World War Two (to prevent Japanese forces obtaining control of them). The House of Lords found that the Crown was liable to pay compensation. Parliament then enacted the enacted War Damage Act 1965. This Act applied retrospectively and so removed the right to compensation.

Question 13

The Crown Proceedings Act 1947

Answer 13

abolished the immunity of the Crown in respect of claims made against it in either tort or contract

Question 14

The Fixed-term Parliaments Act 2011

Answer 14

removed the power of the monarch to dissolve Parliament and requires Parliament in future to sit for a fixed period of five years before a general election will automatically take place.

Question 15

Attorney-General v De Keyser’s Royal Hotel [1920]

Answer 15

where a hotel was taken for wartime use by the War Office during the First World War. The lessees of the hotel sought compensation under the Defence Act 1842, which authorised requisitioning and provided for compensation.

The Government argued that irrespective of the statutory provisions, there was a prerogative power entitling the Crown to requisition the land of a subject in time of emergency and that compensation was not payable as of right.

The court held that the terms of the Defence Act, whilst not expressly abolishing this prerogative power, had put the power ‘into abeyance’.

Question 16

R (Miller) v Secretary of State for Exiting the European Union [2017]

Answer 16

where the Government argued that it could trigger Article 50 of the Treaty on European Union using its prerogative powers to make or unmake treaties.

The majority of the Supreme Court held that the European Communities Act (ECA) 1972 was inconsistent with the future exercise by government ministers of any prerogative power to withdraw from the EU treaties.

Any such withdrawal would need the consent of Parliament. Parliament subsequently passed the European Union (Notification of Withdrawal) Act 2017.

Question 17

Ellen Street Estates v Minister of Health [1934]

Answer 17

A later Act of Parliament will impliedly repeal the provisions of an earlier Act to the extent of any inconsistency between the two Acts. (The claimant wanted to rely on an earlier Act of P which gave more favourable comp provisions. The earlier Act also appeared to challenge any later Acts).

The claimant sought to persuade the court to apply compensation provisions contained in the Acquisition of Land (Assessment of Compensation) Act 1919 rather than those contained in the later Housing Acts of 1925-30. The two sets of statutory provisions were inconsistent, but the earlier ones were more favourable. The 1919 Act stated that any provisions of any other Act ‘so far as inconsistent with this Act shall cease to have or shall not have effect’. The claimant argued that this could be construed so as to govern future Acts, and the later Housing Acts contained no express provisions to repeal the 1919 Act.

Question 18

Thoburn v Sunderland City Council [2002]

Answer 18

The defendants were charged with offences of using weighing machines not calibrated in metric units, or failing to indicate a unit price per kilogram for various foods. This was required by UK regulations made in 1994 under s 2(2) of the European Communities Act (ECA) 1972 to implement a European metrification directive. The defendants relied on s 1 of the Weights and Measures Act 1985 (‘s 1 WMA’), which permitted both metric and imperial weights.

They argued that, although the 1994 regulations purported to amend s 1 WMA to prefer metric weights, s 1 WMA had already impliedly repealed s 2(2) of the ECA 1972. In rejecting their submissions Laws LJ commented (obiter) that the ECA 1972 was a constitutional statute and could not therefore be impliedly repealed. The repeal of such a statute by Parliament had to be express.

Defendants argued that the later Weights and Measures Act of 1985 which permitted both use of metric and imperial weights, impliedly repealed the s 2 (2) of the ECA 1972.

Question 19

H v Lord Advocate [2012]

Answer 19

Obiter Lord Hope, obiter, said that had their been a contradiction between The Extradiction Act 2003 and the Scotland Act 1998 - the Scotland Act could not be impliedly repealed because of its ‘fundamental constitutional nature’;

Question 20

HS2 [2014]

Answer 20

Opponents of HS2 argued that the Hybrid Bill procedure did not comply with an EU directive. When discussing the possibility of conflict between two constitutional statutes (obiter) inferred there may be a hierarchy of constitutional statutes.

Sup Court doubted ECA 1972 abrogated ‘fundamental principles’. Fundamental principle in this case was parliament’s privilege not to be investigated by the courts (as set out in Art 9 of the Bill of Rights).

This suggests there are some fundamental principles that over-ride Acts of P. Obiter in Jackson support this view with regard to the principle of the rule of law - Lord Steyn ‘in exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts. The Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign parliament cannot abolish.’

Question 21

Moohan v Lord Advocate [2014]

Answer 21

Lord Hodge, giving the only judgment stated, obiter: I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful.

However, he went on to state that ‘the existence and extent of such a power is a matter of debate, at least in the context of the doctrine of the sovereignty of the United Kingdom Parliament’.

Question 22

Attorney-General for New South Wales v Trethowan [1932]

Answer 22

This case concerned an attempt by the Parliament of the Australian state of New South Wales to entrench certain provisions in an Act of Parliament by providing that these provisions could not be repealed unless they were approved in a popular referendum in addition to being approved by the Parliament.

When a later Parliament passed a bill repealing the provisions, no referendum was held. The Privy Council held that the repeal of the Act was invalid because a referendum should have taken place

Question 23

Litster v Forth Dry Dock Ltd [1989]

Answer 23

Under an EU Directive, workers were granted protection where a business was transferred from one owner to another. However, the Transfer of Undertakings (Protection of Employment) Regulations 1981 (made to implement the Directive) did not give full effect to the Directive when interpreted literally.

The House of Lords interpreted the Regulations contrary to their clear literal meaning in order to achieve a result compatible with EU law.

Question 24

Ghaidan v Godin-Mendoza [2004]

Answer 24

Under relevant housing legislation, the rights to a tenancy of residential premises could be inherited by the tenant’s surviving spouse, or by someone living with the tenant at his or her death as the tenant’s wife or husband.

The issue on appeal was whether this extended to the survivor of a same-sex couple who had been living together, and how, therefore, the relevant provisions should be interpreted in the light of Article 8 of the ECHR (the right to respect for private and family life).

The House of Lords held that, when given its ordinary meaning, the housing legislation treated survivors of homosexual partnerships less favourably than survivors of heterosexual partnerships, without any rational or fair ground for such distinction, and this constituted a breach of the surviving partner’s rights under Article 8 of the Convention.

Accordingly the House of Lords used its power under s 3 of the Human Rights Act 1998 to read the housing legislation as extending to same-sex partners. This took the provisions of the legislation much further than their literal meaning. The lead judgment was again given by Lord Steyn: ‘Section 3 requires a broad approach concentrating … in a purposive way on the importance of the fundamental right involved.’

Question 25

Factortame [1991]

Answer 25

House of Lords suspended the operation of an Act (the Merchant Shipping Act 1988) and held that by virtue of s 2 (4), directly effective EU law took precedence over conflicting UK law.
The effect of this decision is that the doctrine of implied repeal will not prevent directly effective EU law prevailing over post-1972 Acts of Parliament where there is a conflict between their respective provisions.

Where a conflict exists, the provisions of directly effective EU law will take precedence by virtue of s 2(4) of the ECA 1972. Laws LJ (Thoburn) said that this Act was one of a number of Acts of Parliament which were of constitutional importance and which could not be subject to implied repeal).

• The UK passed the Merchant Shipping Act 1988 to prevent fishing in British waters by Spanish fishermen who had set up a British company (Factortame Ltd) and registered their boats as British under existing merchant shipping legislation.
• The Act imposed new conditions for registration, and the Secretary of State made regulations under the Act so that vessels had to re-register. The boats owned by Factortame were refused registration.
• Factortame challenged the refusal of registration and the compatibility of the Act with freedom of establishment under the TFEU. The Divisional Court made a reference to the ECJ on the compatibility issue. Pending the outcome of the reference to the ECJ, Factortame sought an interim injunction suspending the operation of the Act. This issue was appealed to the House of Lords. The House of Lords refused the interim injunction, but made its own reference to the ECJ on whether it was correct to do so.
• The ECJ held that the House of Lords should have granted an injunction, as this was necessary to protect the rights of Factortame under EU law. Accordingly the House of Lords granted the interim injunction, effectively suspending the operation of an Act of Parliament.
• On the compatibility issue, the ECJ found that the Merchant Shipping Act was incompatible with the provisions on freedom of establishment in the TFEU. The Government subsequently amended the offending provisions of the Act by issuing new regulations.

Question 26

(Anderson) v Secretary of State for the Home Department [2002]

Answer 26

This case concerned how long adults convicted of murder should spend in prison for purposes of punishment.

At the time of the case, the final decision on this was taken by the Home Secretary.

It was alleged that this provision was inconsistent with Article 6 of the ECHR. This was because the imposition of sentence is part of the trial process, and thus should be determined by an independent and impartial tribunal. As a member of the executive, the Home Secretary was not an independent and impartial tribunal.

It was not possible to interpret s 29 of the Crime (Sentences) Act 1997 in such a way as to make it compatible with Convention rights.

The House of Lords made a declaration of incompatibility. The Government subsequently introduced legislation (the Criminal Justice Act 2003) to abolish the Home Secretary’s powers to determine the length of sentence in such cases.

Question 27

Belmarsh [2005]

Answer 27

This involved a challenge to provisions in the Anti-terrorism, Crime and Security Act 2001, which permitted foreign nationals suspected of being involved in terrorist activities (but against whom there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial.

The House of Lords held that such detention breached the ECHR, and made a declaration of incompatibility in respect of the relevant part of the 2001 Act. Within three months of this decision, the offending legislation was repealed. Reminding ourselves that in Belmarsh that involved the declaration against section 23 of the Anti-Terrorism Crime and Security Act 2001 which permitted indefinite detention of foreign nationals suspected of terrorism. And although they won their case, the people who were in detention remained in detention until the section was repealed by the Prevention of Terrorism Act 2005.

Question 28

Dicey’s def of Plt Sov

Answer 28

Dicey’s description may be broken down into three parts:
(a) Parliament is the supreme law-making body and may enact or repeal laws on any subject.

(b) No Parliament may be bound by a predecessor or bind a successor - a particular Act of Parliament cannot be entrenched, or be given a ‘higher’ status than any other Act.
(c) No other person or body (but particularly a court of law) may question the validity of an Act of Parliament or declare that Act to be unlawful.