Parliamentary Sovereignty 6.0

No person/body may question the validity of an enactment of Parliament post-1688

In the new era the courts respected the supremacy of Parliament in making law and the subordination of the common law to statute. For these reasons no judicial review of legislation was allowed by the courts either on grounds of procedure - any alleged irregularity in the way that the statute had gone through Parliament during the legislative process - or on grounds of substance, namely the actual contents of a statute itself. So, for instance, there could be no quashing of legislation which conflicted with fundamental common law or international law rules. The Diceyan view of parliamentary sovereignty rests on this 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. In the case of Edinburgh and Dalkeith Railway v Wauchope (1842) 8 ER 279 (HL), Wauchope claimed to have been unlawfully denied his property rights as the result of a statute that had been passed. He claimed that he had not been given proper notice of the impending legislation (in accordance with existing parliamentary standing orders, which were designed to protect affected landowners prior to an enactment). However, the court rejected his argument that the procedural irregularity could render the Act void. Lord Campbell stated: '... all that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses ...'

Introduction

In this chapter, we will evaluate the doctrine of unlimited parliamentary sovereignty, and a number of modern constitutional developments that have caused tensions to arise in relation to it. The traditional analysis of the UK's constitution is that there are no limits to the legislative competence of Parliament. The doctrine of the unlimited sovereignty of Parliament was a product of a long historical struggle between Parliament and the Crown, which culminated in the Glorious Revolution of 1688 and the subsequent Bill of Rights. This resulted in a significant degree of power being transferred from the Crown to Parliament. The accepted legal order from that time has been that Parliament enacts legislation, with the formal assent of the Crown. Since then, the courts have held, in a long succession of cases, that Acts of Parliament are the supreme form of law in the UK. Professor A. V. Dicey's conception of the theory has been the most influential. He explained the 'continuing theory of Sovereignty of Parliament' in the following way: '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.' Introduction to the Study of the Law of the Constitution (1885) This encompasses three basic rules: 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.

No person/body may question the validity of an enactment of Parliament

'... no person ... is recognised ... as having the right to override or set aside the legislation of Parliament ...' This suggests that no person or body has the power to question the validity or legality of an Act of Parliament. This applies generally but in particular refers to the courts and to the Crown.

No Parliament May be Bound by a Predecessor or Bind a Successor

'Parliament ... has the right to ... unmake any law whatsoever ...' Dicey believed that each new Parliament must enjoy the same unlimited power as any before it. Therefore, Parliament cannot be bound by its predecessors and may amend or repeal any previous enactment. The rationale for this rule is that, if Parliament were to pass a law limiting its power as an institution, a future parliament would not be supreme. There are two forms of repeal: express and implied.

Parliament is the Supreme Law-making Body

'Parliament ... has the right to make ... any law whatsoever ...' According to Dicey, sovereignty means that there are no substantive limitations on the legislation that Parliament may enact. However, it is important to note that Dicey's theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly political limits on what Parliament could do.

Legislative supremacy and the Human Rights Act 1998

Although arguably of great constitutional significance, the Human Rights Act 1998 (HRA 1998) does not mark any formal reduction in the legal sovereignty of Parliament. This is for two main reasons. Firstly, it does not empower the courts to strike down primary legislation, but only to make a non-binding declaration that an Act is incompatible with the European Convention on Human Rights ('the Convention') under the HRA 1998, s. 4. This provision was specifically designed to maintain the sovereignty of Parliament. Secondly, the Human Rights Act is itself an Act of Parliament which is capable of express repeal by ordinary legislation. Note: please see Chapter 9 on the Human Rights Act 1998 for a full discussion of its operation. However, the practical effect of the Act on parliamentary sovereignty has raised a number of important issues.

Substantive binding? The Union Legislation

Arguments have been raised in the past to the effect that the Acts of Union between England and Scotland and Ireland were intended to represent a higher form of law and so should be seen as substantively entrenched. The theory behind the argument 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 was not sovereign, but limited by its founding constitutional documents. In the words of Professor J Mitchell, the new Parliament was 'born unfree'. This argument has been tested in a few cases, as below. In McCormick v Lord Advocate [1953] SC 396, a Scottish Nationalist raised an objection to the designation of the new monarch as Queen Elizabeth the Second. He argued that, as a matter of fact, the first Queen Elizabeth had been Queen of England but not of Scotland. The application was dismissed on other grounds but Lord Cooper stated, obiter: 'The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish Constitutional law ... Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty in seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.' The argument that the Acts of Union limited parliamentary sovereignty was not definitively rejected by the court but was left open for future decision. The Acts of Union between England and Scotland contained some fundamental provisions relating to the preservation of certain aspects of Scottish law and institutions, for example that alterations in private law must be 'for the evident utility of the subjects in Scotland' (article XVIII). The case of Gibson v Lord Advocate [1975] SLT 134 involved a challenge to a European Community common fisheries policy measure, because it gave access to Scottish waters. The complainant argued that this was a change in private law which was not for the 'evident utility' of Scots, as required by the Acts of Union. The court held that access to fisheries was not 'private law' and therefore the measure could not be challenged. However, Lord Keith did not rule out an argument of the kind put forward in a situation where it might be more relevant on the facts. The arguments in both the above cases were quite inconclusive. Dicey certainly viewed the Acts of Union as having no higher legal status than any other Act and it is true to say that the UK Parliament has altered many of the principles contained in both the Scottish and Irish Acts of Union. Furthermore, the judicial remarks in McCormick and Gibson were obiter. No Scottish court has actually declared an Act of Parliament to be invalid on the basis that it is inconsistent with the Act of Union.

Modern developments

As discussed, there have been a number of challenges to aspects of traditional Diceyan theory over recent decades. There are however, four areas that need to be considered in more depth: •Devolution •The Human Rights Act 1998 •Membership of the European Union •The obiter debate in Jackson

No person/body may question the validity of an enactment of Parliament pre-1688

Before the Glorious Revolution in 1688, the courts had at certain times asserted a right to strike down legislation, which offended against common law principles of natural right and reason. (This is historically significant, but does not have any immediate or direct legal relevance to the post-1688 constitutional settlement.)

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

Both cases involved plaintiffs claiming compensation for property that had been compulsorily purchased from them. According to the defendants, the level of compensation was to be assessed in compliance with the Housing Act 1925. The plaintiffs refuted this, however. They argued that the assessment should be calculated according to the (more generous terms) of the Acquisition of Land Act 1919, which had expressly stipulated that its provisions were to prevail over any others passed or to be passed. The court held that it was bound to apply the terms of the later 1925 Act. If the plaintiff's claim had succeeded, the 1919 Act would effectively have become entrenched.

Developments Since UK Accession

Following the UK's entry into the European Community in 1973, there was an initial period of gradual accommodation with the implications of the new legal order. To begin with, a great deal of residual loyalty to the traditional doctrine of parliamentary sovereignty remained in the approach taken by the UK judiciary. This older approach stressed the traditional doctrine very strongly and relied on the principle of implied repeal. Traditionalists would ultimately refuse to give effect to ECA 1972, s.2(4), insisting that later UK legislation always, by implication, repealed earlier legislative provisions with which it was inconsistent, whether such provisions derived from EU law or not. See for instance the approach taken in Felixstowe Dock and Railway Co v British Transport Docks Board [1976] 2 CMLR 655). A continuing, strict adherence to such an approach was ultimately likely to have brought the UK into conflict with Europe, and this is now only of historical significance.

Implied repeal

In the absence of express repeal, if a new Act is partially or wholly inconsistent with a previous Act, the previous Act is repealed to the extent of the inconsistency. This is known as the doctrine of implied repeal and again follows from the principle that Parliament should not be able to bind its successors. This doctrine is illustrated well 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. Both cases involved plaintiffs claiming compensation for property that had been compulsorily purchased from them. According to the defendants, the level of compensation was to be assessed in compliance with the Housing Act 1925. The plaintiffs refuted this, however. They argued that the assessment should be calculated according to the (more generous terms) of the Acquisition of Land Act 1919, which had expressly stipulated that its provisions were to prevail over any others passed or to be passed. The court held that it was bound to apply the terms of the later 1925 Act. If the plaintiff's claim had succeeded, the 1919 Act would effectively have become entrenched. In Ellen St Estates v Minister of Health [1934] 1 KB 590, Maugham LJ stated: 'The legislature cannot, according to our constitution, bind itself as to the force of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature.' While the doctrine of implied repeal operates in relation to most statutes, there is a more modern view that it may not be applicable to certain 'constitutional' statutes such as the Human Rights Act 1998 and the European Communities Act 1972 (discussed at sections 6.5 and 6.6.6 respectively).

Can Parliament Limit its own Power?

It is this aspect of Dicey's theory that has given rise to the most arguments and tension. There are three main ways in which a Parliament could attempt to bind itself. First, it could bind itself as to the content of future legislation, which would represent a substantive limitation. Second, Parliament could prescribe a particular manner in which legislation can be passed or repealed, such as a two-thirds majority. Third, it could impose a restriction that any legislation dealing with a certain subject should bear a particular form, such as the need for express words. These last two ideas are often referred to as a binding of manner and form, respectively.

Macarthy's Ltd v Smith [1981]

Lord Denning MR considered that he was obliged to construe the statute purposively because of the ECA 1972, s. 2(4). He concluded that this subsection had effectively abolished the doctrine of implied repeal in so far as Community law was concerned.

The European Communities Act 1972

Lord Denning, in Bulmer v Bollinger [1974] 2 All ER 1226, described the effect of the ECA 1972 as follows: 'When we come to matters with a European element the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back ... Parliament has decreed that the Treaty is henceforward to be part of our Law. It is equal in force to any Statute.' The main provisions of the European Communities Act for sovereignty purposes are as follows. The ECA 1972, s. 2(1) gives direct effect to Community law within the UK. It provides 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; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.' The ECA 1972, s. 2(4) provides that: '... any Act passed or to be passed shall be construed and have effect [subject to directly applicable Community Law].' According to the ECA 1972, s. 3(1), questions of law relating to the Community shall be determined according to the principles and decisions laid down by the European Court of Justice (ECJ). Since the UK became a member of the EC/EU, there have been a number of interpretations as to the effect of European Law on parliamentary sovereignty.

Garland v British Rail Engineering Ltd [1983]

Lord Diplock seemed to suggest that the courts could adopt a wide, purposive, interpretive approach to statutes but only in so far as the words could bear the EU meaning. '... it is a principle of construction of United Kingdom statutes, now too well established ... that the words of a statute passed after [a] Treaty has been signed and dealing with the subject matter of [an] international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.' Lord Diplock's dictum above related to the actual Treaty. It did not cover the situation where the courts were required to interpret legislation compatibly with secondary EU legislation such as directives.

R v Secretary of State for the Home Department, ex parte Simms [2000]

Lord Hoffmann stated, obiter, that the principle of parliamentary sovereignty means: 'that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights'. (Note, however, that Hoffmann stressed that this could only be achieved through absolutely explicit wording by Parliament: you should refer back to Chapter 5 for further discussion of this case.)

Ellen St Estates v Minister of Health [1934]

Maugham LJ stated: 'The legislature cannot, according to our constitution, bind itself as to the force of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature.'

The Decision in Jackson: a Challenge to Diceyan Views on Parliamentary Supremacy?

One of the most heated debates in recent years occurred during the passing of the Hunting Act 2004. This Act made the hunting of wild animals, and especially foxes, by dogs unlawful. At issue in R (Jackson) v Attorney General [2005] UKHL 56 was the validity of the Hunting Act itself. The Act was passed without the consent of the House of Lords, using the accelerated procedure created by the Parliament Acts of 1911 and 1949. To understand the decision and reasoning in Jackson, it is important to understand how the Parliament Acts procedure works. The Parliament Act 1911 limited the powers of the House of Lords to block legislation passed by the House of Commons. According to this Act, a bill rejected by the Lords in three successive sessions could become law, provided two years lapsed between the second reading and the final approval of the Commons. The 1911 Act was itself amended in 1949. The new amendment reduced the power of the Lords even further, cutting the time they could delay legislation from three to two sessions, effectively a one-year delay. Significantly, the Parliament Act 1949 became law using the Parliament Act 1911 procedure (after being rejected by the Lords in three successive sessions). The House of Lords had to deal with the issue of whether the challenge made by Jackson infringed the 'rule' in Pickin.

Ex parte Canon Selwyn (1872)

Parliament can also create legislation that changes aspects of the constitution. validity of the Irish Church Act 1869 was challenged by a priest on the grounds that it disestablished his church in Ireland contrary to the Act of Union with Ireland (1800). This argument was rejected by the court, Cockburn CJ stating that: 'There is no judicial body in this country by which the validity of an Act of Parliament could be questioned. An Act of Legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce judgment as to the validity of an Act of Parliament.'

No Temporal Limits

Parliament can pass laws that are retrospective as well as prospective. In 1965 Parliament passed the War Damage Act 1965, which had the effect of retrospectively nullifying the important House of Lords' decision in the case of Burmah Oil Co v Lord Advocate [1965] AC 75 (see further Chapter 5). More recently, there have been retrospective elements to legislation, for instance in the Mental Health (Approval Functions) Act 2012 and the Job-Seekers (Back to Work Schemes) Act 2013.

McCormick v Lord Advocate [1953]

Scottish Nationalist raised an objection to the designation of the new monarch as Queen Elizabeth the Second. He argued that, as a matter of fact, the first Queen Elizabeth had been Queen of England but not of Scotland. The application was dismissed on other grounds but Lord Cooper stated, obiter: 'The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish Constitutional law ... Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty in seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.' The argument that the Acts of Union limited parliamentary sovereignty was not definitively rejected by the court but was left open for future decision. Parliamentary Sovereignty

Jackson - obiter comments

Some academics have suggested that there are signs from the wider obiter debate in Jackson that a change may be underway in the judiciary's view of the traditional concept of parliamentary sovereignty. The outcome of the case relating to the validity of the Parliament Act is not of direct significance in this regard. However, the obiter comments of a number of the law lords seemed to suggest that the traditional status of the doctrine may have to give way at some point in the future to a wider principle of constitutionalism.

Post-Factortame

Subsequent cases have shown the courts willing to go further and to dis-apply sections within statutes that seem clearly to conflict with EU law, even without a reference to the ECJ. The most notable example of this was the House of Lords' decision in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1. This case involved the Employment Protection (Consolidation) Act 1978, a UK statute that required part-time workers to work for five years before they received redundancy and unfair dismissal compensation rights. (Full-time workers only had to complete two years). Part-time workers were largely female and thus the rules were considered indirectly discriminatory to women (contrary to the EU Treaty, art. 141, giving women equal pay rights). The House of Lords 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 years employment. Thus the Act (although remaining on the statute book for some time, before its eventual amendment to comply with the Lords' ruling) was a dead-letter as far as the five-year qualifying period for part-timers was concerned. The effect of this decision was more far-reaching than Factortame, as part of the Employment Protection (Consolidation) Act 1978 was completely suspended for all, whereas in Factortame (No. 2) the Merchant Shipping Act 1998 was only suspended for EU nationals. Subsequent cases such as Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) confirm a newer trend for a modified approach to the doctrine of implied repeal. They show that, to override provisions of EU law, it is necessary to indicate that the legislature's actual intention was to bring about the repeal of the provision. This can only be brought about through express repeal. Thoburn and a number of other cases heard at the same time are often referred to as the 'Metric martyrs' cases', as they all concerned market traders who were convicted for using imperial measures contrary to a European directive. They alleged in their appeal that the ECA 1972 (through which the directive had force) was incompatible with the later Weights and Measures Act 1985, which allowed for the use of both metric and imperial measurements. The court found no incompatibility, but Laws LJ made some very significant and influential obiter statements on the ECA and implied repeal. In Thoburn, Laws LJ put forward the idea that: '... the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental ... We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes ... In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights... Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts, the HRA, the Scotland Act 1998. The ECA clearly belongs in this family. 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.' The more recent case of R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 appears to have introduced a further, rather more subtle, take on the idea that there is a hierarchy of constitutional principles or norms operating in the constitution. The interesting development of Laws' ideas in Thoburn, developed by the Supreme Court in the HS2 case, centred on the comparative importance of key constitutional principles and statutes. Arguably the matter is more complex than Laws suggested with his differentiation between 'constitutional' and 'ordinary' statutes. The Supreme Court's rejection of the argument that EU law should necessarily trump the rather more established constitutional tenet contained in Article 9 of the Bill of Rights 1689 - that freedom of speech and proceedings in Parliament ought not to be 'impeached' in any court of law - suggests some constitutional statutes or norms may be considered more important than others. Though this idea arguably downplays the perceived supremacy of EU law, it seems to move the debate even further away from the old Diceyan orthodoxy that all statutes have equal status.

AXA General Insurance Ltd v Lord Advocate, [2011]

Supreme Court had an opportunity to review the legal relationship between Westminster and the Scottish Parliament when considering whether an Act of the Scottish Parliament was susceptible to judicial review. The resolution of the issue turned upon the constitutional status of the Scottish Parliament and whether it should be regarded as a delegated legislature (akin to a local authority), or as a political equal (albeit without sovereign status) with powers shared with Westminster. In the circumstances, Lords Hope and Reed considered that review of Acts of the Scottish Parliament on the normal grounds of judicial review was not appropriate, as they clearly regarded Acts of the Scottish Parliament as a species of primary, rather than delegated legislation. Nevertheless, both agreed that Acts of the Scottish Parliament of a kind that violated the rule of law would not be upheld by the courts. The justification for this was Lord Hope's previously stated view in the Jackson case that 'the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based'. (See below at section 6.7 for more on Jackson.)

Substantive binding? Grants of independence

The British Empire was gradually dismantled by grants of independence to the old colonies. Several, such as Canada and Australia, thereafter became known as 'Dominions' but were effectively independent nations. The Dominions' constitutions were established by UK Acts of Parliament. A British 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 independent status). This was confirmed in the Statute of Westminster 1931, which required there to be a recital of the request and consent from the Dominion. Statute of Westminster 1931, s. 4: 'No Act of parliament of the UK passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested and consented to the enactment thereof.' The significance of this was that the Statute of Westminster effectively imposed substantive and procedural restrictions on the Westminster Parliament's ability to legislate for former colonies. This raises the question as to how far the 1931 Parliament bound its successors to adhere to the requirements of s. 4 of the Statute of Westminster, when passing subsequent legislation. In British Coal Corporation v The King [1935] AC 500, a case concerning the ability of Parliament to legislate for Canada in breach of the Statute of Westminster, s. 4, Lord Sankey said: 'It is doubtless true that the power of the Imperial [i.e. Westminster] Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s 4 of the Statute ... But that is theory and has no relation to realities.' In Blackburn v Attorney General [1971] 1 WLR, a case concerning UK membership of the European Community, the issue of the limits on Parliamentary sovereignty was discussed again. Lord Denning highlighted the distinction between legal theory and political reality. '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.' These two judicial comments were not binding in these cases. Also both judgments seem to focus on political limitations to Parliamentary sovereignty (what Parliament may do as a matter of practical politics) and not the legal limitations (what Parliament may do as a matter of law). For this reason, some later judges have doubted their views. Manuel v Attorney General [1983] Ch 77 concerned an amendment to the Constitution of Canada by an Act of Parliament. Megarry VC clearly re-stated the orthodox view of sovereignty. 'I have grave doubts about the theory of the transfer of sovereignty as affecting the competence of parliament. In my view, it is a fundamental of the English constitution that parliament is supreme. As a matter of law the courts of England recognise parliament as being omnipotent in all save the power to destroy its own omnipotence. Under the authority of parliament the courts of a territory may be released from their legal duty to obey parliament, but that does not touch on the acceptance by the English courts of all that parliament does. Nor must validity in law be confused with practical enforceability.' In summary, we can see that the grants of independence referred to above imposed very clear political limits on the Westminster Parliament, but did not limit the sovereign body's theoretical legal power to pass law affecting those new states. Given the passage of time, many may think that this distinction is now very much an academic argument, though it may be possible to discern a similar, albeit milder and less clear- cut process developing with regard to the devolved nations of the UK, notably Scotland - see 6.4 below.

Legislative supremacy and the Human Rights Act 1998 - Section 3 HRA - Interpretation of Legislation

The HRA 1998, s. 3(1) states: '... 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.' The word 'possible' is a wide and non-defined term and potentially gives judges very significant scope for creative statutory interpretation. In a number of cases since the Act came into operation in 1990, the courts have grappled with the full effect of this section. (You should look at Chapter 9 for more detail.) In R v A (Complainant's Sexual History) [2002] 1 AC 45, a case concerning the admissibility of evidence in a rape trial, the law lords arguably seemed prepared to modify the meaning of the relevant legislation through use of the very strong interpretive power given to them by the HRA 1998, s. 3(1). Lord Steyn, giving the main judgment, stated: 'After all it is realistic to proceed on the basis that the legislature would not if alerted to the problem have wished to deny the right to an accused to put forward a full and complete defence ... It is therefore possible under section 3 to read section 41 ... as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the Convention should not be treated as inadmissible.' Lord Steyn's approach was to 'read down' words into the relevant legislation (the Youth Justice and Criminal Evidence Act 1999, s. 41), in order to make it compatible with the Convention, even though these appeared to be contrary to Parliament's intention in passing the provision in s. 41 of the 1999 Act. Despite formally agreeing with this creative interpretation of section 41, Lord Hope felt that the general comments made by Lord Steyn on the scope of the HRA 1998, s. 3 were constitutionally questionable. He accepted that the rule of construction laid down by section 3 was 'quite unlike any previous rule of statutory interpretation'. However, he felt that the rule was one 'of interpretation only' and did not give the judiciary the right 'to act as legislators', a role that should be reserved solely for Parliament. See also the important cases of Re S (Children) and Re W (Care Orders) [2002] UKHL 10, Bellinger v Bellinger [2003] UKHL 21, and, in particular, Ghaidan v Godin-Mendoza [2004] UKHL 30 for further developments on the use the HRA 1998, ss. 3 and 4. See also: R v Lambert [2001] 3 All ER 577. Some of the political criticisms of the Human Rights Act have centred on the way in which the courts have applied section 3 of the Act, in a manner which critics have viewed as an example of judicial activism. It is always important to realise, however, that these are powers which have not been self-created but have been given to the courts by Parliament, in 1998. One very notable feature of the Human Rights Act has been the effect it has had on the doctrine of implied repeal. This reflects the very similar impact which EU law has had on this important aspect of orthodox Diceyan theory on sovereignty. See also Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) at section 6.7.5.

Legislative Supremacy and Devolution

The Scotland Act 1998 gave the new Scottish Parliament the right to legislate in relation to a number of issues. However, the Scotland Act 1998, s. 28(7) specifically provides that there be no reduction in the legal sovereignty of Westminster to legislate for Scotland if it is considered desirable to do so. Following the independence referendum in September 2014 (which was won by a 55- 45% margin by those wishing to remain in the UK) and the Smith Commission proposals on devolution, the Scotland Act 2016 has extended the devolution arrangements for Scotland. As a consequence the range of devolved matters, on which the Scottish Parliament can legislate, has been widened to areas including, for instance, equal opportunities, consumer advocacy and abortion law. The Scottish Government now also has enhanced powers over certain welfare benefits and will be able to set the rates and band thresholds applying to all (non-savings, non- dividend) income tax paid by Scottish taxpayers from 2017/18. In the case of AXA General Insurance Ltd v Lord Advocate, [2011] UKSC 46 the Supreme Court had an opportunity to review the legal relationship between Westminster and the Scottish Parliament when considering whether an Act of the Scottish Parliament was susceptible to judicial review. The resolution of the issue turned upon the constitutional status of the Scottish Parliament and whether it should be regarded as a delegated legislature (akin to a local authority), or as a political equal (albeit without sovereign status) with powers shared with Westminster. In the circumstances, Lords Hope and Reed considered that review of Acts of the Scottish Parliament on the normal grounds of judicial review was not appropriate, as they clearly regarded Acts of the Scottish Parliament as a species of primary, rather than delegated legislation. Nevertheless, both agreed that Acts of the Scottish Parliament of a kind that violated the rule of law would not be upheld by the courts. The justification for this was Lord Hope's previously stated view in the Jackson case that 'the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based'. (See below at section 6.7 for more on Jackson.)

Legislative supremacy and EU law

The UK signed the Treaty of Accession in 1972 and became a full member of the European Community (now known as the European Union) from 1 January 1973. As treaties have no direct effect in English Law, Parliament passed legislation to incorporate the Treaty of Rome 1957 into domestic law. This was achieved by the European Communities Act (ECA) 1972. Since then a number of other treaties have modified or amended the original Treaty. These have also been incorporated into UK law by statute or by statutory instrument. On 23 June 2016 a majority of voters in the EU Referendum opted for the UK to leave the European Union. As matters currently stand, the UK remains in the EU and will not leave until the two year Article 50 process for negotiating the UK's term of departure comes to an end on 29 March 2019. To date, the arrangements required for 'triggering' the Article 50 process have already caused a great deal of constitutional debate. The widely reported case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 will be discussed in more detail in the following chapter on prerogative power. In relation to this topic, however, the core message of the case, as represented by the majority judgment given by Lord Neuberger, can be seen as a solid endorsement of the central legislative role of Parliament and as a judicial reminder that Parliament and not the Executive is the sovereign body in the nation. 'We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be affected in the only way that the UK constitution recognises, namely by primary legislation. This conclusion appears to us to follow from the ordinary application of basic concepts of constitutional law to the present time.' The outcome, therefore, was the Prime Minister was prevented from personally triggering the Article 50 process (as she claimed to be able to do using prerogative powers) and obliged to introduce a Bill into Parliament instead. This was passed in the form of the European Union (Notification of Withdrawal) Act 2017 on 16 March 2017. For the purposes of this module, the impact of EU law remains very important in assessing and analysing the nature of sovereignty in the UK's constitution, even if the practical application of this body of law is highly likely to change considerably in the relatively near future. As the terms of the UK's exit may not be known for some time, it is impossible at present to gauge what continuing impact EU law will have on the UK constitution, though the legal aftermath is likely to be very complex. Irrespective of the final form that the UK's divorce from the EU takes, the impact and effects of the UK's 46 year membership from 1973 to 2019 will continue to provide very important lessons in any study of constitutional law in the future. The section below describes the impact that this experience has had on the UK's constitution.

Binding of parliament as to the manner and form of future legislation

The orthodox Diceyan view of sovereignty 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. Furthermore, the courts would not entertain a challenge to the subsequent incompatible statute because of the 'enrolled bill rule' laid down in Pickin v British Railways Board [1974] AC 765 (see section 6.3). However, some academics have challenged the argument that Parliament cannot bind its successors on a number of fronts. The most obvious relate to the Human Rights Act 1998 and the European Communities Act 1972, both of which are discussed below (at sections 6.5 and 6.6). Analysis of certain Commonwealth cases has also led some academics to debate whether Parliament can bind itself. In Attorney-General for New South Wales v Trethowan, [1932] AC 526 (PC) the validity of the Constitution (Legislative Council) Amendment Act 1929 was tested. This Act inserted a new s. 7A into the Constitution Act 1902. This provided that no bill to abolish the Upper House in New South Wales ('NSW') could be presented unless it had been supported by a majority of voters in a referendum. Similarly, s. 7A itself was also entrenched. In order to repeal this section the same procedure had to be followed, an arrangement known as 'double entrenchment'. In 1930, following a change in the NSW state government, it was decided to repeal s. 7A and abolish the Upper House. Before putting the bill forward for royal assent, the matter went to the Privy Council for their advice as to whether the proposed amendment was legal. The Privy Council held that the requirement to have a referendum was binding, and that parliamentary sovereignty had no relevance in determining the present case. The Privy Council seemed to indicate that the matter turned on a statutory construction of the Colonial Laws Validity Act 1865, s. 5. The New South Wales Parliament was a legislative body having subordinate powers and hence the issue was not one relating to sovereignty of the type enjoyed by Westminster. However, it is Dixon J's obiter comments in the High Court of Australia that have led some academics to utilise the decision as an example of limiting sovereignty. In obiter, Dixon J had indicated that the UK Parliament could be as subject to the rule of entrenchment as the New South Wales legislature had been. This issue came to the fore once more following the enactment of the European Union Act 2011, which introduced a 'referendum lock', a statutory framework requiring a national referendum to be held before further amendments could be made to the founding Treaties of the European Union. This followed on from the coalition government's pledge to obtain popular approval for any further transfer of sovereignty or powers to EU institutions. 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.

No Geographical Limitations

The orthodox theory also states that Parliament can legislate for territory beyond the jurisdiction of the UK, even if this produces a conflict with international law. In Mortensen v Peters (1906) 14 SLT 227 the captain of a Norwegian trawler was convicted of fishing in the Moray Firth contrary to the Herring Fisheries (Scotland) Act 1889. The court held that it was bound to apply the terms of the Act, even though it restricted fishing beyond the three-mile territorial limit recognised by international law. In this context see also Cheney v Conn (section 6.1.1).

The Modern View of Sovereignty

The question now is whether unlimited sovereignty in the form described and advocated by Dicey is still entirely relevant within the UK. Practical and political constraints have clearly been placed on the Westminster Parliament through legislation governing the former Dominions and, much more significantly nowadays, the devolution arrangements, (particularly with Scotland), which have recently been extended. Additionally, the two most significant constitutional pieces of legislation in recent times, the European Communities Act 1972 and the Human Rights Act 1998, have had a notable impact on orthodox Diceyan theory, albeit that the former will be repealed in due course and there has been notable political pressure from the political right to repeal the latter. In addition, the debate in the Jackson case highlights one of the most important constitutional tensions in recent years, namely that between the principles of parliamentary sovereignty and substantive rule of law. In that case the House of Lords seemed, in effect, to have reviewed the validity of an Act of Parliament and several of the obiter dicta questioned the ultimate supremacy of parliamentary authority. These concerns tie in notably with the growing importance of the rule of law as a central principle of the constitution and add credence to the view that, if Parliament did the 'unthinkable' at the behest of an authoritarian government, the courts would not automatically defer to it. The Diceyan view has also been subject to further analysis by academic critics who have argued that there is no reason in principle why Parliament should not be able to specify the way in which future Parliaments should legislate on particular issues of constitutional importance. They argue that Parliament could in fact protect measures against repeal by a subsequent legislature, through the technique of entrenchment. Thus repeal of, for example, human rights legislation might require a two-thirds majority (rather than a simple majority). Could Parliament effectively direct the courts to adopt a different rule? This would depend upon the courts accepting that the old rule of recognition relating to parliamentary sovereignty should be adapted. The courts would have to decide if they wished to go beyond the enrolled bill rule and look at how legislation had been passed to see if it conformed to the requirements of the entrenched Act. This would involve the judges accepting that a new constitutional arrangement had arisen. In this regard the discussion by Lord Steyn in Jackson relating to what he calls a 'different hypothesis of constitutionalism' is particularly important. As we have seen above, a similar line to that taken by Lord Steyn was pursued by Lord Hope (who also sat in Jackson) in the significant case of AXA General Insurance Ltd v The Scottish Ministers [2011] UKSC 46. Although this case related to the different status of Acts of the Scottish Parliament, Lord Hope suggested that the courts could review a statute that might be seen to violate the rule of law, commenting that: 'The question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion.' In relation to the EU, it can be said that the UK Parliament voluntarily forfeited or shared some of its sovereignty by enacting the European Communities Act 1972. The ECA created a method of direct applicability and enforceability of Community law within the UK's legal system. It now seems clear, however, that this has only had a temporary effect, in that the ECA 1972 is shortly due to be repealed as part of the 'Brexit' process. As such, the 1972 Parliament clearly did not bind its successors. A situation that a decade ago seemed politically highly unlikely has come about, showing that even such an important 'constitutional' statute as the ECA will only remain in place with the consent of Parliament. In spite of much recent academic and extra-judicial debate on the most important constitutional issue of the day, the UK's relationship with the EU, the Supreme Court has given us a powerful reminder of the central place of parliamentary sovereignty in the constitution. In commenting on the status and character of the ECA, Lord Neuberger had the following to say (in Miller, para 60): 'The 1972 Act ... authorises a dynamic process by which, without further primary legislation..., EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of law, including statutes. ... Of course, consistently with the principle of Parliamentary sovereignty, this unprecedented state of affairs will only last as long as Parliament wishes: the 1972 Act can be repealed like any other statute.'

No subject limitations

The theory suggests that Parliament can pass legislation, however absurd, unjust or impractical. Sir Leslie Stephen's often-quoted example (from 1882) was that Parliament could pass a law ordering the death of all blue-eyed babies. Parliament can certainly pass laws to alter or regulate its own terms of office, as it did with the Septennial Act 1715 and the Fixed-term Parliaments Act 2011. It can also limit the power of its own constituent bodies as it did in the Parliament Acts of 1911 and 1949. Parliament can also create legislation that changes aspects of the constitution. In Ex parte Canon Selwyn (1872) 36 JP 54, the validity of the Irish Church Act 1869 was challenged by a priest on the grounds that it disestablished his church in Ireland contrary to the Act of Union with Ireland (1800). This argument was rejected by the court, Cockburn CJ stating that: 'There is no judicial body in this country by which the validity of an Act of Parliament could be questioned. An Act of Legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce judgment as to the validity of an Act of Parliament.' As we shall see below, the constitutional framework of the UK has also been altered by the European Communities Act 1972 and the Human Rights Act 1998. In R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, Lord Hoffmann stated, obiter, that the principle of parliamentary sovereignty means: 'that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights'. (Note, however, that Hoffmann stressed that this could only be achieved through absolutely explicit wording by Parliament: you should refer back to Chapter 5 for further discussion of this case.) It is also possible for Parliament to create statutes that conflict with public international law. In Cheney v Conn [1968] 1 All ER 779, a taxpayer challenged the validity of the Finance Act 1964. He argued that it conflicted with the Geneva Convention, a treaty to which the UK was a party, because part of the tax collected would go to the manufacture of nuclear weapons. Ungoed-Thomas J said: 'What the statute itself enacts cannot be unlawful, because ... it is the highest form of law known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a Parliamentary enactment... is illegal.'

Legislative supremacy and the Human Rights Act 1998 - Declarations of Incompatibility

There have been a number of declarations of incompatibility since the Human Rights Act 1998 came into force. Although s. 4(6) of the Act does not require Parliament to change an incompatible statute, the political consequences of a declaration are very significant and effectively oblige the relevant minister to arrange for the amendment of the offending part of the statute. The strength of obligation is seen to be akin to that of a convention. Additionally, although the relevant legislative provision (which has been declared incompatible) stays in force until such time as it is amended, it may well become inoperative for the very reason that, every time it is applied, a person could have recourse to the European Court of Human Rights. The adverse consequences arising from such a judgment could also have political implications for the government of the day.

Use of Purposive Interpretation

This approach represented a more subtle and accommodating attitude towards the force of EU law and began to gain ground in the courts in the early 1980s. Under this approach, the courts began to develop a presumption that Parliament, in passing legislation, must have intended to legislate consistently with Community law. Therefore, when interpreting statutes, the courts would try to give effect to the purpose of EU provisions. In Macarthy's Ltd v Smith [1981] QB 180, Lord Denning MR considered that he was obliged to construe the statute purposively because of the ECA 1972, s. 2(4). He concluded that this subsection had effectively abolished the doctrine of implied repeal in so far as Community law was concerned. In Garland v British Rail Engineering Ltd [1983] 2 AC 751, Lord Diplock seemed to suggest that the courts could adopt a wide, purposive, interpretive approach to statutes but only in so far as the words could bear the EU meaning. '... it is a principle of construction of United Kingdom statutes, now too well established ... that the words of a statute passed after [a] Treaty has been signed and dealing with the subject matter of [an] international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.' Lord Diplock's dictum above related to the actual Treaty. It did not cover the situation where the courts were required to interpret legislation compatibly with secondary EU legislation such as directives. In Pickstone v Freeman [1989] AC 66, the House of Lords strained the meaning of an amendment to the Equal Pay Act 1970 so that it conformed to Community law. Under this more purposive approach, the situation remained that, if Parliament were to pass a statute which was expressly intended to be contrary to Community law, the domestic courts would allow this statute to prevail, as parliamentary legislation was still seen to be the supreme source of law. However, nothing less than words such as: 'this Act is to apply over any contrary provision of EU law' would have sufficed. By following this approach, the courts believed that they were in effect adhering to the intention of Parliament. However, a serious dilemma arose as a result of the Factortame line of cases. Here, the UK courts were simply unable to construe the meaning of a statute (the Merchant Shipping Act 1988) purposively in order to make it conform to Community law. An additional question arose for the court as to whether a piece of legislation could be prevented from coming into force, pending a preliminary ruling from the ECJ.

The Effects of Factortame

This case has been cited as one of the most important and fundamental in UK constitutional law. It appeared that the courts could now suspend an Act of Parliament (at least temporarily), if it conflicted with Community law. This caused much consternation at the time in Parliament and was seen as an infringement of its sovereignty. Parliament's intention had clearly been to prevent the Spanish trawler owners using UK quotas, and this had not been allowed by the courts, because it breached Community law. Other commentators were surprised it had taken so long for such a judgment to arrive. Lord Bridge in Factortame (No. 2) said that the logic of the case should not have come as a surprise, as the doctrine of primacy of EU law was well known at the time of UK accession in 1973 (see Costa v ENEL [1964] ECR 585). The Factortame decision gives strong support to the view that the traditional doctrine of implied repeal has been extinguished as far as EU rights are concerned. Repeal of the ECA 1972 would have to be express in order for the courts to give effect to it.

R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995]

This case involved the Employment Protection (Consolidation) Act 1978, a UK statute that required part-time workers to work for five years before they received redundancy and unfair dismissal compensation rights. (Full-time workers only had to complete two years). Part-time workers were largely female and thus the rules were considered indirectly discriminatory to women (contrary to the EU Treaty, art. 141, giving women equal pay rights). The House of Lords 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 years employment. Thus the Act (although remaining on the statute book for some time, before its eventual amendment to comply with the Lords' ruling) was a dead-letter as far as the five-year qualifying period for part-timers was concerned. The effect of this decision was more far-reaching than Factortame, as part of the Employment Protection (Consolidation) Act 1978 was completely suspended for all, whereas in Factortame (No. 2) the Merchant Shipping Act 1998 was only suspended for EU nationals.

Express repeal.

This is where legislation is passed that expressly states an intention that an earlier Act should be repealed. 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, Race Relations Act 1976, and Disability Discrimination Act 1995 were all expressly repealed and replaced by the Equality Act 2010.

Edinburgh and Dalkeith Railway v Wauchope (1842)

Wauchope claimed to have been unlawfully denied his property rights as the result of a statute that had been passed. He claimed that he had not been given proper notice of the impending legislation (in accordance with existing parliamentary standing orders, which were designed to protect affected landowners prior to an enactment). However, the court rejected his argument that the procedural irregularity could render the Act void. Lord Campbell stated: '... all that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses ...'

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

alidity of the Constitution (Legislative Council) Amendment Act 1929 was tested. This Act inserted a new s. 7A into the Constitution Act 1902. This provided that no bill to abolish the Upper House in New South Wales ('NSW') could be presented unless it had been supported by a majority of voters in a referendum. Similarly, s. 7A itself was also entrenched. In order to repeal this section the same procedure had to be followed, an arrangement known as 'double entrenchment'. In 1930, following a change in the NSW state government, it was decided to repeal s. 7A and abolish the Upper House. Before putting the bill forward for royal assent, the matter went to the Privy Council for their advice as to whether the proposed amendment was legal. The Privy Council held that the requirement to have a referendum was binding, and that parliamentary sovereignty had no relevance in determining the present case. The Privy Council seemed to indicate that the matter turned on a statutory construction of the Colonial Laws Validity Act 1865, s. 5. The New South Wales Parliament was a legislative body having subordinate powers and hence the issue was not one relating to sovereignty of the type enjoyed by Westminster. However, it is Dixon J's obiter comments in the High Court of Australia that have led some academics to utilise the decision as an example of limiting sovereignty. In obiter, Dixon J had indicated that the UK Parliament could be as subject to the rule of entrenchment as the New South Wales legislature had been.

R (HS2 Action Alliance Ltd) v Secretary of State for Transport

appears to have introduced a further, rather more subtle, take on the idea that there is a hierarchy of constitutional principles or norms operating in the constitution. The interesting development of Laws' ideas in Thoburn, developed by the Supreme Court in the HS2 case, centred on the comparative importance of key constitutional principles and statutes. Arguably the matter is more complex than Laws suggested with his differentiation between 'constitutional' and 'ordinary' statutes. The Supreme Court's rejection of the argument that EU law should necessarily trump the rather more established constitutional tenet contained in Article 9 of the Bill of Rights 1689 - that freedom of speech and proceedings in Parliament ought not to be 'impeached' in any court of law - suggests some constitutional statutes or norms may be considered more important than others.

Mortensen v Peters (1906)

captain of a Norwegian trawler was convicted of fishing in the Moray Firth contrary to the Herring Fisheries (Scotland) Act 1889. The court held that it was bound to apply the terms of the Act, even though it restricted fishing beyond the three-mile territorial limit recognised by international law.

Blackburn v Attorney General [1971]

case concerning UK membership of the European Community, the issue of the limits on Parliamentary sovereignty was discussed again. Lord Denning highlighted the distinction between legal theory and political reality. '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.' These two judicial comments were not binding in these cases. Also both judgments seem to focus on political limitations to Parliamentary sovereignty (what Parliament may do as a matter of practical politics) and not the legal limitations (what Parliament may do as a matter of law). For this reason, some later judges have doubted their views.

R v A (Complainant's Sexual History) [2002]

case concerning the admissibility of evidence in a rape trial, the law lords arguably seemed prepared to modify the meaning of the relevant legislation through use of the very strong interpretive power given to them by the HRA 1998, s. 3(1). Lord Steyn, giving the main judgment, stated: 'After all it is realistic to proceed on the basis that the legislature would not if alerted to the problem have wished to deny the right to an accused to put forward a full and complete defence ... It is therefore possible under section 3 to read section 41 ... as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the Convention should not be treated as inadmissible.' Lord Steyn's approach was to 'read down' words into the relevant legislation (the Youth Justice and Criminal Evidence Act 1999, s. 41), in order to make it compatible with the Convention, even though these appeared to be contrary to Parliament's intention in passing the provision in s. 41 of the 1999 Act. Despite formally agreeing with this creative interpretation of section 41, Lord Hope felt that the general comments made by Lord Steyn on the scope of the HRA 1998, s. 3 were constitutionally questionable. He accepted that the rule of construction laid down by section 3 was 'quite unlike any previous rule of statutory interpretation'. However, he felt that the rule was one 'of interpretation only' and did not give the judiciary the right 'to act as legislators', a role that should be reserved solely for Parliament.

Gibson v Lord Advocate [1975]

challenge to a European Community common fisheries policy measure, because it gave access to Scottish waters. The complainant argued that this was a change in private law which was not for the 'evident utility' of Scots, as required by the Acts of Union. The court held that access to fisheries was not 'private law' and therefore the measure could not be challenged. However, Lord Keith did not rule out an argument of the kind put forward in a situation where it might be more relevant on the facts. The arguments in both the above cases were quite inconclusive. Dicey certainly viewed the Acts of Union as having no higher legal status than any other Act and it is true to say that the UK Parliament has altered many of the principles contained in both the Scottish and Irish Acts of Union. Furthermore, the judicial remarks in McCormick and Gibson were obiter. No Scottish court has actually declared an Act of Parliament to be invalid on the basis that it is inconsistent with the Act of Union.

Manuel v Attorney General [1983]

concerned an amendment to the Constitution of Canada by an Act of Parliament. Megarry VC clearly re-stated the orthodox view of sovereignty. 'I have grave doubts about the theory of the transfer of sovereignty as affecting the competence of parliament. In my view, it is a fundamental of the English constitution that parliament is supreme. As a matter of law the courts of England recognise parliament as being omnipotent in all save the power to destroy its own omnipotence. Under the authority of parliament the courts of a territory may be released from their legal duty to obey parliament, but that does not touch on the acceptance by the English courts of all that parliament does. Nor must validity in law be confused with practical enforceability.'

Thoburn v Sunderland City Council [2002]

confirm a newer trend for a modified approach to the doctrine of implied repeal. They show that, to override provisions of EU law, it is necessary to indicate that the legislature's actual intention was to bring about the repeal of the provision. This can only be brought about through express repeal. Thoburn and a number of other cases heard at the same time are often referred to as the 'Metric martyrs' cases', as they all concerned market traders who were convicted for using imperial measures contrary to a European directive. They alleged in their appeal that the ECA 1972 (through which the directive had force) was incompatible with the later Weights and Measures Act 1985, which allowed for the use of both metric and imperial measurements. The court found no incompatibility, but Laws LJ made some very significant and influential obiter statements on the ECA and implied repeal. In Thoburn, Laws LJ put forward the idea that: '... the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental ... We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes ... In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights... Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts, the HRA, the Scotland Act 1998. The ECA clearly belongs in this family. 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.'

heney v Conn [1968]

possible for Parliament to create statutes that conflict with public international law. taxpayer challenged the validity of the Finance Act 1964. He argued that it conflicted with the Geneva Convention, a treaty to which the UK was a party, because part of the tax collected would go to the manufacture of nuclear weapons. Ungoed-Thomas J said: 'What the statute itself enacts cannot be unlawful, because ... it is the highest form of law known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a Parliamentary enactment... is illegal.'