workshop 9 + 10 - parliamentary sovereignty

What was the significance of the Glorious Revolution of 1688 in English constitutional history?

It marked the end of absolutist monarchy in England. The Bill of Rights (1689) and Act of Settlement (1701) established parliamentary sovereignty, ensuring that monarchs could no longer override laws or dismiss judges at will. Statute made by Parliament became the highest form of law.

How did parliamentary authority evolve from absolutist monarchy to constitutional democracy in the UK?

The transition was gradual. Monarchs retained significant power into the 19th century, and the country remained an oligarchy for much of that time. Three Reform Acts in the 19th century expanded the franchise, but full equal voting rights for men and women over 21 only came in 1928. Although Dicey articulated parliamentary sovereignty in the 1880s, it was not until the 20th century that this principle aligned with full democracy.

What are the key components of A.V. Dicey’s theory of Parliamentary Sovereignty?

Dicey defined Parliamentary Sovereignty as Parliament’s right to make or unmake any law, with no person or body able to override its legislation. The three core elements are:

1. Parliament is the supreme law-making body.

2. No Parliament can bind its successor or be bound by its predecessor.

3. No person or body may question the validity of an Act of Parliament.

What does Dicey mean by Parliament being the “supreme law-making body,” and how is this illustrated in practice?

Dicey means there are no legal limitations on Parliament’s legislative power (though political limits exist). Parliament can legislate on any matter, including constitutional changes. For example, the Irish Church Act 1869 disestablished the Church of Ireland, and in ex parte Canon Selwyn (1872), the court upheld the Act despite claims it violated the Acts of Union.

What does it mean that there are “no substantive restrictions on Parliament,” and what examples illustrate this?

It means Parliament can legislate on any matter, even contrary to fundamental rights (subject to the Human Rights Act 2000), international law, or with retrospective effect. Examples include:

• Fundamental rights: ex parte Simms (2000) and Lord Hoffmann’s legality principle.

• International law: Mortensen v Peters and Cheney v Conn (UK courts enforced statute over international law).

• Retrospective laws: War Damages Act 1965 and War Crimes Act 1991.

What does Dicey mean by “no entrenchment,” and how does this apply to the UK constitution?

Dicey’s principle means no Parliament can bind its successor or be bound by its predecessor. The UK’s uncodified constitution lacks formal entrenchment mechanisms, unlike most democracies. Constitutional fundamentals can be changed or repealed by a single Act of Parliament, either expressly or by implication.

What is the difference between express and implied repeal in UK constitutional law?

• Express repeal: Parliament explicitly states that an earlier Act is replaced by a new one. Examples:

  • Interception of Communications Act 1985 repealed by Regulation of Investigatory Powers Act 2000.

  • Equality Act 2010 replaced the Sex Discrimination Act 1975, Race Relations Act 1976, and Disability Discrimination Act 1995.

• Implied repeal: Occurs subtly when a later Act conflicts with an earlier one, making the earlier provision invalid. This illustrates Dicey’s principle that no Parliament can bind its successor.

What is implied repeal, and when will courts apply it?

Implied repeal occurs when a later Act is inconsistent with an earlier Act, so the earlier Act is repealed to the extent of the inconsistency. This reflects Parliament’s presumed intention to give effect to its most recent will. Courts will only apply implied repeal where two statutes are irreconcilable.

What is the significance of implied repeal for parliamentary sovereignty, and which cases illustrate this principle?

Implied repeal reinforces that Parliament cannot bind its successors; each new Parliament has full freedom to legislate, even if this overrides earlier statutes. Sovereignty is “continuing,” meaning later Acts prevail over incompatible earlier ones. This principle was confirmed in Vauxhall Estates v Liverpool Corporation [1932] and Ellen St Estates v Minister of Health [1934], both concerning compensation for compulsory land purchases.

What did the courts decide in Vauxhall Estates and Ellen Street Estates, and why is this significant for parliamentary sovereignty?

In both cases, landowners argued for compensation under the Acquisition of Land Act 1919, which stated its provisions should prevail over other statutes. The courts held that even if this was Parliament’s intention, the 1919 Act could not prevent the later Housing Act 1925 from impliedly repealing it, as Parliament cannot bind its successors. The 1925 Act applied.

Note: Laws LJ in Thoburn v Sunderland City Council [2002] introduced a modern proviso to this principle.

Why does Dicey’s theory mean that Acts of Parliament cannot be invalidated by UK courts?

Because Acts of Parliament are the highest form of law under Dicey’s doctrine of parliamentary sovereignty. UK courts cannot quash or invalidate primary legislation, even if it appears unconstitutional or breaches international law. Judicial review of procedural irregularities in the legislative process is also not permitted.

What is the Enrolled Bill rule, and which cases illustrate it?

The Enrolled Bill rule means that once a bill becomes an Act of Parliament, courts cannot question its validity or the procedure by which it was passed. Any procedural irregularities cannot be corrected by the courts. This principle was affirmed in Edinburgh and Dalkeith Railway v Wauchope (1842) and Pickin v British Railways Board [1974], where Lord Morris stated that once enacted, there is finality unless Parliament amends or repeals it.

How does parliamentary sovereignty shape the character of the UK constitution?

Dicey’s conception of parliamentary sovereignty makes statute law supreme and prevents entrenchment of constitutional fundamentals, giving the UK a highly flexible constitution. This flexibility reinforces its political character, where political forces drive change more than rigid constitutional rules.

What are the limitations on parliamentary sovereignty, and why is this topic controversial?

Dicey’s theory asserts that Parliament has unlimited legal powers with no substantive or procedural limits. However, legal and constitutional developments over time have challenged this purity, introducing constraints that dilute Diceyan doctrine. These issues remain politically contentious and have influenced major events, such as the UK’s withdrawal from the EU.

What is entrenchment by ‘manner and form,’ and how does Dicey’s theory address it? (procedural limitations)

Entrenchment by ‘manner and form’ refers to procedural requirements designed to make it harder for future parliaments to change a law, such as requiring a referendum before repeal. Dicey’s orthodox view is that such requirements cannot bind a successor parliament. Courts would not enforce them due to the Enrolled Bill rule, as confirmed in Pickin v British Railways Board [1974].

What does the Trethowan case reveal about ‘manner and form’ entrenchment, and how has this idea been debated in the UK?

In Attorney General for New South Wales v Trethowan [1932], the Privy Council upheld a requirement for a referendum before abolishing the upper chamber, but this applied to a subordinate legislature, not a sovereign one. Critics argue that manner and form entrenchment is only possible for subordinate bodies, such as devolved assemblies.
The debate resurfaced with the European Union Act 2011’s ‘referendum lock,’ though it was never tested in court.
UK courts have discussed this in obiter:

• Laws LJ (Thoburn [2002]) rejected manner and form entrenchment.

• Lady Hale (Jackson [2005]) suggested Parliament could redefine itself to require special procedures or referendums for certain measures.

How has legislative independence historically challenged Westminster’s sovereignty?

The end of Empire and partial erosion of the Union raised doubts about Westminster’s omnipotence. In Scotland, cases like MacCormick v Lord Advocate [1953] reflected a view that the UK Parliament was limited by the Acts of Union, which were created by the original English, Scottish, and Irish Parliaments. This suggests the UK Parliament was not born with unlimited sovereignty but was, in Professor J. Mitchell’s words, “born unfree”.

How did the UK recognise the autonomy of the Dominions, and what confirmed this principle?

Dominion status was granted to Canada (1867), Australia (1901), and New Zealand (1907), giving them semi-independent status within the British Empire. A constitutional convention developed that no UK Act affecting a Dominion would be passed without its request and consent. This was formalised in section 4 of the Statute of Westminster 1931, requiring legislation to include a recital of the Dominion’s request and consent.

How did granting Dominion status impact Westminster’s sovereignty and Dicey’s doctrine?

Granting autonomy and later independence to Dominions challenged Dicey’s idea of unlimited parliamentary sovereignty. By legislating to create semi-independent states, Westminster reduced its own authority. The most significant UK development was granting Dominion status to the Irish Free State in 1922 (later the Republic of Ireland in 1949), excluding Northern Ireland.

How have UK courts addressed the tension between Westminster’s political diminution and Dicey’s legal theory of sovereignty?

Courts have generally maintained that political change does not affect Parliament’s unlimited legal authority. For example, Megarry VC in Manuel v Attorney General [1983] upheld this view. Others, like Lord Denning in Blackburn v Attorney General [1971], acknowledged that legal theory and political reality diverge: while legally Parliament could reverse independence statutes, practically “freedom once given cannot be taken away,” so legal theory must yield to political reality.

How has devolution impacted Westminster’s sovereignty, and what type of limitation does it represent?

Devolution since 1998 has given Scotland, Wales, and Northern Ireland significant autonomy, though not comparable to Dominion independence. Historically, Westminster has suspended devolved powers (e.g., Northern Ireland under direct rule from 1972–1998) and abolished local bodies (e.g., GLC in 1986). Today, political acceptance of devolution makes reversal highly unlikely, especially with moves toward enhanced powers and potential Scottish independence. This is a political limitation, not a legal one—Parliament could still repeal devolution laws under Dicey’s theory, but practically this is abstract.

How has the common law influenced parliamentary sovereignty in recent decades?

Traditional Diceyan supremacy has been challenged by constitutional legislation passed by Parliament itself and by developments in common law. Parliament has imposed self-limitations through reforming statutes, binding only until repealed. Courts have also promoted common law constitutionalism, responding to restrictive legislation and asserting fundamental principles, which has diluted the purity of Dicey’s doctrine.

What are ouster clauses, and how have UK courts responded to them?

Ouster clauses are provisions in legislation that attempt to exclude the courts’ jurisdiction to review governmental decisions, limiting access to judicial review. Courts have consistently resisted such clauses, interpreting them narrowly to protect the right to challenge decisions. This hostile stance has been evident since the landmark case of Anisminic [1969], which established that ouster clauses cannot prevent judicial scrutiny of unlawful decisions.

What principle did Anisminic v Foreign Compensation Commission [1969] establish regarding ouster clauses?

In Anisminic, section 4(4) of the Foreign Compensation Act 1950 attempted to prevent court challenges to FCC decisions. The House of Lords held that the ouster clause did not bar judicial review because the FCC had misconstrued the law. Lord Reid stated that ouster provisions must be construed strictly, and if reasonably capable of two meanings, the interpretation preserving the court’s jurisdiction should be adopted.

How have courts treated ouster clauses in recent cases, and what principle guides their approach?

Courts view ouster clauses as an affront to their constitutional role and interpret them narrowly to preserve judicial review. This approach, seen in Anisminic [1969], continued in R v Home Secretary, ex parte Al Fayed [1997] and R (Privacy International) v Investigatory Powers Tribunal [2019], where the Supreme Court held that judicial review could only be excluded by clear, explicit wording. Recent cases (R (Oceana) [2023] and R (LA(Albania)) [2023]) upheld the “super” ouster clause in s.11A TCEA 2007, introduced by the Judicial Review and Courts Act 2022, showing limited success for government attempts at clarity.

How have recent Acts restricted courts’ interpretive powers under section 3 of the Human Rights Act?

Recent legislation has sought to limit courts’ ability to use section 3 HRA to interpret laws compatibly with human rights. This tactic often accompanies ouster clauses, as seen in the Illegal Migration Act 2023 and the Safety of Rwanda Act 2024. Section 3(1) of the latter Act explicitly disapplies sections 2, 3, and 6–9 of the Human Rights Act, curtailing judicial interpretive powers.

What is the principle of legality, and how was it articulated in R v Secretary of State for the Home Department, ex parte Simms [2000]?

The principle of legality means that fundamental rights cannot be overridden by general or ambiguous statutory language. Courts presume that even broad legislative wording is subject to basic rights unless Parliament uses express language or necessary implication to the contrary. Lord Hoffmann in Simms stated this protects against unintended infringement of rights during the democratic process.

What statutory presumption did Lord Hoffmann establish in Simms, and how does it balance constitutional principles?

Lord Hoffmann recognised Parliament’s sovereignty but introduced a strong presumption: fundamental rights cannot be overridden unless Parliament states its intention in clear, explicit terms. This creates a mild form of entrenchment—rights cannot be casually restricted, and any government doing so must accept political accountability. Hoffmann argued this approach applies principles of constitutionality similar to those in codified systems, subtly enhancing judicial influence while respecting parliamentary supremacy.

Where does the legality principle originate, and what did ex parte Leech (No 2) [1994] establish?

Although often linked to Simms [2000], the legality principle emerged earlier in cases like R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994]. The Court of Appeal held that prison rules intercepting legal correspondence infringed a constitutional right to solicitor-client communication. Such interference could only be authorised by express statutory wording or necessary implication, laying the foundation for the legality principle.

What was decided in R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779 regarding court fees and access to justice?

The case held that the Lord Chancellor’s statutory instrument setting court fees was ultra vires because it effectively denied access to the courts, a fundamental constitutional right. Witham, who was unemployed, could not afford the £500 fee to bring a defamation claim, and his request for a waiver was refused. The court ruled that Parliament had not authorised the Lord Chancellor to set fees at a level that obstructed access to justice.

What is common law constitutionalism and how does it relate to parliamentary supremacy and the Human Rights Act 1998?

Common law constitutionalism refers to the judiciary’s development of constitutional principles through case law, particularly since the late 1990s. It acts as a safeguard against the potentially harsh consequences of Dicey’s doctrine of unlimited parliamentary supremacy. Modern cases have established a parallel route for rights protection under common law, operating alongside the formal framework of the Human Rights Act 1998. Some scholars view this as a judicial “insurance policy” in case the HRA is repealed, ensuring that fundamental rights remain protected through common law principles.

How have recent cases contributed to the development of common law constitutionalism, and why are they controversial?

Recent case law has expanded the traditional grounds of judicial review (fairness, reasonableness, legality) by developing broader constitutional principles. Supporters argue this reflects the judiciary’s vital role in safeguarding constitutional values and holding government accountable. Critics, however, see it as judicial activism—an overreach that distorts parliamentary intention. This trend illustrates the courts’ evolving role in shaping constitutional safeguards, building on their long-standing practice of developing principles in both public and private law.

What principle was established in Osborn v Parole Board [2013] UKSC 61 regarding oral hearings and the role of common law in protecting rights?

Lord Reed (later President of the UKSC) held that the Parole Board acted unlawfully by failing to allow oral hearings for prisoners when crucial decisions about release or recall were being made. Although the challenge was framed under Article 5(4) ECHR, Lord Reed emphasised that the Human Rights Act 1998 does not replace or supersede common law protections. Instead, human rights continue to be safeguarded by domestic law, with the HRA serving as a complementary framework. This case illustrates the judiciary’s reliance on common law constitutionalism to uphold fundamental rights alongside statutory and Convention-based protections.

How did Lord Reed in Osborn v Parole Board [2013] UKSC 61 expand the constitutional principle of fairness in administrative decision-making?

Lord Reed built on the long-standing common law principle (since the 1960s) that administrative bodies must act fairly. He extended this duty of fairness by recognising the personal right of prisoners to participate in hearings that directly affected their liberty and future lives. This expansion emphasised that personal involvement is itself a constitutional right, and it also promotes accountability and transparency in government decision-making. Thus, fairness was not only about outcomes but also about meaningful participation in the process.

What constitutional principles were affirmed in R (Unison) v Lord Chancellor [2017] UKSC 51 and R (Evans) v Attorney General [2015] UKSC 21?

- R (Unison) v Lord Chancellor (2017): The Supreme Court struck down employment tribunal fees as unlawful because they denied the constitutional right of access to justice, which is inherent to the rule of law.

- R (Evans) v Attorney General (2015): The UKSC held that the Attorney General could not override a court’s decision, affirming the principle that executive actions are reviewable by the courts and that judicial decisions cannot be ignored or set aside by government.

What constitutional principle was affirmed in Kennedy v Charity Commission [2014] UKSC 20, and how did it relate to openness and transparency?

The Supreme Court emphasised the common law presumption in favour of openness, described by Lord Mance as a constitutional principle of transparency and open justice. In this case, concerning a journalist’s Freedom of Information request about a charity linked to George Galloway, the Court held that it was for the judiciary, through common law, to determine disclosure requirements. This reinforced the central role of common law constitutional principles in safeguarding openness and accountability in government.

Why was Jackson v Attorney General [2005] UKHL 56 significant in exploring the tension between parliamentary supremacy and the rule of law?

Jackson, Chairman of the Countryside Alliance, challenged the validity of the Hunting Act 2005, arguing it was invalid because it had been passed under the Parliament Act 1949, which itself was unlawful. His claim was that the Commons alone could not amend the Parliament Act 1911 to expand its own powers, as a “delegate body” cannot increase its authority without consent. The case was radical in Diceyan terms, since it questioned the validity of an Act of Parliament—contrary to the enrolled bill rule (Pickin v BRB). The House of Lords ultimately upheld the validity of the 1949 Act and the Hunting Act, but the case is highly significant for highlighting potential friction between parliamentary supremacy and the rule of law, with some judges suggesting limits might exist to Parliament’s authority in extreme circumstances.

What obiter points did the law lords raise in Jackson v Attorney General [2005] UKHL 56 about the relationship between courts and Parliament?

Although the House of Lords upheld the validity of the Parliament Act 1949 and the Hunting Act 2005, several law lords developed significant obiter dicta. They suggested that there may be implied exceptions to the use of the Parliament Act procedure, linked to the democratic safeguard built into the original Parliament Act 1911. More broadly, these remarks raised challenging ideas about the limits of parliamentary supremacy and hinted at circumstances where the courts might intervene if Parliament sought to undermine fundamental constitutional principles.

What democratic safeguard did the law lords highlight in Jackson v Attorney General [2005] UKHL 56, and why was it significant?

The law lords considered whether the Commons could use the Parliament Act procedure to extend its own lifetime beyond the 5-year limit by first removing the express exception in s. 2(1) PA 1911 and then passing an Act to prolong its term. The majority held this would not be possible, recognising an implied exception to preserve the safeguard in s. 2(1). This safeguard ensures that the Commons cannot unilaterally extend its time in power without the check of the House of Lords, protecting democratic accountability and preventing abuse of legislative procedure.

What wider constitutional concerns did the law lords raise in Jackson v Attorney General [2005] UKHL 56, and how do they relate to modern debates?

In their obiter remarks, judges such as Lord Steyn, Baroness Hale, and Lord Hope expressed concern about the constitutional dangers of a strong executive using its parliamentary majority to pass laws that undermine fundamental rights and values. Lord Steyn warned of a “complaisant House of Commons” (para 102), highlighting judicial anxiety about weak legislative checks on executive power. These dicta emphasised the rule of law in its modern substantive form as a vital safeguard, balancing political supremacy with legal principles. This concern resonates today, particularly in light of legislation like the Safety of Rwanda Act 2024, which arguably challenges both the rule of law and the separation of powers.

How did Lord Hope in Jackson v Attorney General [2005] UKHL 56 articulate the rule of law’s role in limiting parliamentary sovereignty?

Lord Hope framed the rule of law, enforced by the courts, as the “ultimate controlling factor” of the constitution, with judges acting as guardians who help define the limits of Parliament’s legislative sovereignty (para 107). He argued that parliamentary sovereignty is not absolute: “Step by step, gradually but surely,” the traditional Diceyan view of absolute legislative sovereignty has been qualified (para 104). This positions the courts’ constitutional function as balancing state powers and ensuring legislation respects fundamental legal principles.

How did Lord Steyn in Jackson v Attorney General [2005] UKHL 56 challenge the orthodox view of parliamentary sovereignty?

Lord Steyn took a radical stance by suggesting that parliamentary sovereignty is not uncontrolled. He warned that if Parliament were to pass “oppressive and wholly undemocratic legislation,” the courts might have to consider whether to recognise it, thereby asserting a constitutional check on Parliament. Crucially, Steyn characterised parliamentary supremacy as a product of the common law, implying that the courts, as constitutional arbiters, could redefine or limit it. This remains an unorthodox but influential view, highlighting judicial concern about protecting fundamental rights against potential legislative abuse.

How did Lord Steyn in Jackson v Attorney General [2005] UKHL 56 reinterpret parliamentary sovereignty in relation to the common law?

Lord Steyn argued that parliamentary supremacy is a construct of the common law, created by judges rather than an absolute constitutional truth. He suggested that in exceptional circumstances—such as Parliament attempting to abolish judicial review or the ordinary role of the courts—the judiciary might need to qualify parliamentary sovereignty. This view challenges Dicey’s “pure and absolute” account, positioning the courts as potential guardians of constitutional fundamentals against a “complaisant House of Commons” (para 102).

What are the three key elements of parliamentary sovereignty according to Dicey, and which cases illustrate them?

1. Parliament can make or unmake any law

   • No subject limits: Selwyn, ex parte Simms, De Keyser

   • No geographic limits: Mortensen v Peters

   • No temporal limits: Parliament can legislate retrospectively (War Damages Act)

2. No one can override or set aside an Act of Parliament

   • Illustrated by Pickin v British Railways Board

3. Parliament cannot bind itself

• Enrolled Bill Rule: once a bill is enrolled, courts cannot question its validity

Workshop 10 —- How did the UK’s membership of the European Union affect the doctrine of parliamentary sovereignty, and what is its continuing significance after Brexit?

• Diceyan orthodoxy: Parliamentary sovereignty means Westminster’s legal authority is unlimited.

• Dilution of authority: Over time, Parliament ceded political power to devolved nations and institutions, weakening the absolute model.

• EU membership (1973–2020): For 47 years, EU law had supremacy over UK law in certain areas, creating a major qualification to parliamentary sovereignty.

• Brexit context: Membership has ended, but its legacy continues to shape constitutional law, as courts and Parliament must grapple with the long-term impact of EU supremacy, the principle of retained EU law, and the precedent of external limits on sovereignty.

What does it mean that the UK is a dualist state, and how has this shaped the incorporation of international law?

- In a dualist system, domestic and international law are distinct; international obligations do not automatically apply in domestic courts.

- Mortensen v Peters confirmed that domestic law, created by Parliament, has higher status in the UK legal system.

- For international law to be enforceable, Parliament must incorporate it through statute.

- Examples:

- European Communities Act 1972 incorporated EU law into UK law.

- Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR).

How did the UK incorporate European Community/European Union treaty obligations into domestic law, and what is meant by “EU law”?

- Treaty of Accession (1972): UK joined the European Communities on 1 January 1973.

- European Communities Act 1972 (ECA): Incorporated the Treaty of Rome 1957 into UK domestic law, giving EU law effect.

- Subsequent treaties: Later agreements (e.g., the Maastricht Treaty 1992, which formally established the EU) were incorporated by amending the ECA.

- EU law: For clarity, the body of law created by both the European Communities and the European Union is collectively referred to as EU law, which had supremacy over conflicting UK law until Brexit.

What was the significance of Section 2(1) of the European Communities Act 1972 for UK sovereignty?

- Section 2(1) gave direct effect to EU law in the UK without the need for further parliamentary enactment.

- It ensured that rights, obligations, and remedies created under EU treaties were automatically recognised and enforceable in domestic law.

- This provision marked a major qualification of parliamentary sovereignty, as EU law could override conflicting UK legislation.

- It established the principle that UK courts must apply EU law as part of the domestic legal order, laying the foundation for the supremacy of EU law during membership.

How did Section 3(1) of the European Communities Act 1972 incorporate ECJ jurisprudence, and why did this challenge parliamentary sovereignty?

- Section 3(1): Required UK courts to determine questions of EU law according to the principles laid down by the European Court of Justice (ECJ/CJEU).

- Supremacy of EU law: Established in Costa v ENEL (Case 6/62) [1964], EU law has primacy over national law. If domestic law conflicts with EU law, EU law must prevail.

- Impact on UK sovereignty: This directly conflicted with the Diceyan view that no one can override an Act of Parliament. By recognising EU law supremacy, the UK accepted a fundamental qualification of parliamentary sovereignty during its membership.

How did Section 2(4) of the European Communities Act 1972 accommodate the primacy of EU law, and why did it create tension with parliamentary sovereignty?

- Section 2(4): Required that “any enactment passed or to be passed” must be construed and have effect subject to EU law.

- Pre-1972 statutes: Straightforward—any incompatible laws were overridden by the ECA itself, consistent with implied repeal.

- Post-1972 statutes: More problematic—s. 2(4) suggested that even later Acts of Parliament must give way to EU law.

- Tension: This conflicted with the orthodox principle (from Vauxhall Estates and Ellen Street Estates) that Parliament cannot bind future Parliaments, since implied repeal should allow later statutes to override earlier ones.

- Constitutional question: Did s. 2(4) effectively mean implied repeal was displaced in the EU context? Had the 1972 Parliament bound future Parliaments by entrenching EU law supremacy?

How did UK courts approach conflicts between EU law and domestic law in the early years after accession, and what does Macarthys Ltd v Smith [1979] illustrate?

- Period (1973–late 1980s): No final resolution of sovereignty vs EU law; questions remained conceptual.

- Judicial approach: Courts presumed Parliament intended to comply with EU law whenever it legislated.

- Method: Any inconsistency was treated as a drafting oversight, not a deliberate rejection of EU obligations.

- Macarthys Ltd v Smith [1979]: Court of Appeal held that under ss. 2(1) and 2(4) ECA 1972, EU law would take precedence over conflicting UK statutes, showing early judicial willingness to give effect to EU law supremacy while still respecting parliamentary sovereignty in principle.

Why was Factortame (No. 2) [1990] a constitutional landmark in the UK, and what issue did it raise?

- Background: Dispute over the Merchant Shipping Act 1988, which restricted foreign-owned vessels from registering in the UK to prevent “quota hopping.”

- Conflict: The Act directly contradicted EU law guaranteeing freedom of establishment and non-discrimination.

- Significance:

- UK courts, following the European Communities Act 1972, suspended the operation of the 1988 Act.

- This was unprecedented: it meant a UK statute was disapplied because it conflicted with EU law.

- The case marked the crunch point where the supremacy of EU law was explicitly recognised over Acts of Parliament.

- Constitutional impact: Factortame demonstrated that parliamentary sovereignty had been qualified by EU membership, showing that Parliament could not legislate contrary to EU obligations.

What were the facts in Factortame (No. 2) [1990], and why did the applicants challenge the Merchant Shipping Act 1988?

- Applicants: UK-incorporated companies owning 95 fishing vessels, mainly managed and controlled by Spanish nationals.

- Background: Vessels had previously been registered as British under the Merchant Shipping Act 1894.

- Change in law: The Merchant Shipping Act 1988 introduced new re-registration requirements.

- Problem: The applicants’ vessels failed to qualify under the new regime because they were largely controlled from Spain.

- Challenge: The companies argued that the 1988 Act contravened the EEC Treaty and EU law principles (as incorporated by the European Communities Act 1972), particularly the freedom of establishment and non-discrimination.

Why did the Merchant Shipping Act 1988 create a constitutional quandary for the UK courts in Factortame?

- Earlier approach: Courts had generally harmonised UK law with EU law through purposive interpretation, presuming Parliament intended compliance.

- Problem in Factortame: The MSA 1988 directly contravened EU principles, especially freedom of establishment, leaving no room for harmonisation.

- Judicial dilemma:

- Law Lords initially refused interim financial relief, believing domestic law barred them from granting it.

- This raised the question of whether UK courts could disapply an Act of Parliament to uphold EU law supremacy.

- Resolution path: The issue was referred to the European Court of Justice (ECJ), setting the stage for the landmark ruling that confirmed EU law could override conflicting UK statutes.

Would you like me to now create the Factortame – ECJ ruling flashcard, showing how the ECJ answered this dilemma and forced the UK courts to accept EU law supremacy?

What was decided in Factortame (No. 2) [1991], and why is it a constitutional landmark?

- Judgment: The House of Lords held that UK courts could suspend an Act of Parliament (here, the Merchant Shipping Act 1988) where required to do so by EU law.

- Significance:

- First time UK courts explicitly disapplied an Act of Parliament.

- Confirmed the supremacy of EU law over conflicting domestic legislation.

- Lord Bridge’s reasoning:

- Supremacy of EU law was already established before UK accession (Costa v ENEL).

- By enacting the European Communities Act 1972, Parliament had voluntarily accepted a limitation on its sovereignty.

- Impact: Caused political consternation, but entrenched the principle that EU membership qualified Diceyan parliamentary sovereignty.

How did Lord Bridge justify the supremacy of EU law in Factortame (No. 2), and what did this mean for parliamentary sovereignty?

- Misconception addressed: Lord Bridge rejected claims that the ECJ’s ruling was a “novel and dangerous invasion” of UK sovereignty.

- Supremacy of EU law: He emphasised that EU law supremacy was well established in ECJ jurisprudence long before UK accession (Costa v ENEL).

- Voluntary limitation: By enacting the European Communities Act 1972, Parliament had voluntarily accepted a limitation on its sovereignty.

- Judicial duty: UK courts were obliged to override national law conflicting with directly enforceable EU law.

- Parliament’s practice: Parliament had consistently amended UK statutes to comply with ECJ rulings and directives.

- Conclusion: According supremacy to EU law was not novel but a logical recognition of obligations Parliament had already accepted.

How did post-Factortame case law confirm the ability of UK courts to disapply conflicting statutes, and what happened in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995]?

- Factortame legacy: Established that EU law could override or disapply UK statutes enacted after 1972.

- Development: Later cases showed courts could disapply provisions of UK statutes without needing a reference to the ECJ.

- Equal Opportunities Commission [1995]:

- Concerned the Employment Protection (Consolidation) Act 1978, which required five years’ service for part-time workers to claim compensation rights.

- As most part-time workers were women, the rule was indirectly discriminatory under EU law.

- The House of Lords granted a declaration of incompatibility with EU law.

- Impact: UK industrial tribunals ignored the wording of the Act and awarded compensation rights after two years’ employment, aligning domestic practice with EU law.

What constitutional principles did Laws LJ establish in Thoburn v Sunderland City Council (“Metric Martyrs”), and why was the case significant?

- Facts: Market traders convicted for using imperial measures contrary to legislation implementing an EU directive. They argued the Weights and Measures Act 1985 impliedly repealed the relevant provisions of the ECA 1972.

- Decision: Laws LJ found no incompatibility on the facts, but made influential obiter dicta.

- Key contribution:

- The Diceyan doctrine of implied repeal no longer applied in the same way to certain statutes.

- EU law prevailed because an exception to implied repeal had been created.

- Introduced the idea of a hierarchy of statutes:

- Ordinary statutes – subject to implied repeal.

- Constitutional statutes – not subject to implied repeal, enduring unless expressly repealed.

- Examples of constitutional statutes:

- ECA 1972

- Human Rights Act 1998

- Devolution Acts 1998

- Bill of Rights 1689

- Parliament Act 1911

- Significance: Established the modern doctrine of constitutional statutes, reshaping the understanding of parliamentary sovereignty and statutory hierarchy.

What did Laws LJ say about constitutional statutes in Thoburn v Sunderland City Council [2002], and how does this challenge Dicey’s orthodox view?

- Ordinary statutes: Can be impliedly repealed by later inconsistent legislation.

- Constitutional statutes: Cannot be impliedly repealed. They endure unless Parliament shows an actual intention to repeal, either:

- By express words, or

- By language so specific that repeal is irresistibly clear.

- Examples of constitutional statutes:

- European Communities Act 1972

- Human Rights Act 1998

- Devolution Acts 1998

- Bill of Rights 1689

- Parliament Act 1911

- Judicial approval: This doctrine was later endorsed in Miller (No. 1) [2017], confirming its constitutional significance.

- Impact: Moves debate away from Dicey’s orthodoxy, which insisted all statutes had equal status. Laws LJ introduced a hierarchy of statutes, reshaping the doctrine of parliamentary sovereignty.

What does the UK’s departure from the EU reveal about the relationship between the ECA 1972 and parliamentary sovereignty?

- Temporary limitation: EU membership significantly qualified parliamentary sovereignty, as courts enforced EU law supremacy (Factortame).

- Binding effect: Parliament in 1972 effectively bound future Parliaments by incorporating EU law supremacy into domestic law.

- Continuing institution: This binding lasted only while Parliament chose to remain within the EU framework.

- Brexit (2019–2020): The Parliament elected in December 2019 chose to end EU membership, demonstrating that sovereignty could be reclaimed.

- Principle reaffirmed: Parliament can impose self-limitations, but it cannot prevent future Parliaments from removing them—so sovereignty remains ultimate, though politically constrained.

How did the Human Rights Act 1998 (HRA) incorporate the European Convention on Human Rights into UK law, and what does this show about parliamentary sovereignty?

- Human Rights Act 1998 (HRA): Incorporated most provisions of the ECHR into UK domestic law.

- Dualist system: Demonstrates that international law (like the ECHR) only has effect in the UK once enacted by statute.

- Parallel with EU law (1972): Similar to the European Communities Act 1972, which incorporated EU law into domestic law.

- Distinct bodies of law: The ECHR is entirely separate from EU law.

- Impact on sovereignty: Shows Parliament can voluntarily give domestic effect to international obligations, but sovereignty remains ultimate since Parliament decides whether and how to incorporate them.

What challenges have diluted the orthodox Diceyan doctrine of parliamentary sovereignty in the UK?

- Foundational principle: Parliamentary sovereignty remains the cornerstone of the UK constitution.

- EU membership (1973–2020):

- The European Communities Act 1972 (ECA) incorporated EU law into domestic law.

- Cases like Factortame showed EU law could override UK statutes, challenging Dicey’s orthodoxy.

- Human Rights Act 1998 (HRA):

- Incorporated the European Convention on Human Rights (ECHR) into UK law.

- Introduced judicial powers to review legislation for compatibility with rights, creating further tension with absolute sovereignty.

- Overall impact: These developments diluted the “purity” of Dicey’s theory, showing Parliament can voluntarily limit its sovereignty, though it retains ultimate authority to reverse such limits (e.g., Brexit).

Which sections of the Human Rights Act 1998 are most relevant to parliamentary sovereignty, and what do they provide?

- Section 2 – Interpretation of ECHR rights

- UK courts must “take into account” Strasbourg jurisprudence when deciding human rights cases.

- Ensures consistency with the European Court of Human Rights, but does not make its rulings binding.

- Section 3 – Interpretation of legislation

- Courts must interpret UK legislation, “so far as possible,” in a way compatible with ECHR rights.

- Strong interpretive obligation, but stops short of striking down Acts of Parliament.

- Section 4 – Declarations of incompatibility

- Courts may declare legislation incompatible with the ECHR.

- Does not invalidate the statute—Parliament decides whether to amend it.

- Section 19: Requires ministers to make a statement of compatibility (or explain incompatibility) when introducing new legislation.

- Section 6 – Enforcement of rights

- Makes it unlawful for public authorities to act incompatibly with ECHR rights.

- Provides a statutory defence if the authority was acting under primary legislation that could not be interpreted compatibly.

How have UK courts interpreted Section 2 of the Human Rights Act 1998, and what is the balance between the “mirror principle” and judicial dialogue?

- Section 2 HRA: Courts must “take into account” Strasbourg jurisprudence when determining questions involving Convention rights.

- Early approach – Mirror Principle:

- R (Ullah) v Special Adjudicator [2004] (Lord Bingham): UK courts must keep pace with Strasbourg jurisprudence—no more, but no less.

- Strong deference to Strasbourg rulings in the early years of the HRA.

- Later approach – Judicial Dialogue:

- Courts began asserting autonomy, especially where Strasbourg case law was less relevant to UK’s common law context.

- Emphasis on dialogue: mutual learning between UK courts and Strasbourg.

- Examples:

- R v Horncastle [2009] – UKSC declined to follow Strasbourg on hearsay evidence, defending common law safeguards.

- R (Haney) v SoS for Justice [2014] – UKSC developed domestic principles while respecting Convention rights.

- Impact: Assertions that UK courts lost autonomy to Strasbourg are overstated; the relationship is more nuanced, balancing respect with independence.

What is the constitutional significance of Section 3 of the Human Rights Act 1998, and why has it been controversial?

- Provision: Courts must interpret primary and subordinate legislation “so far as it is possible to do so” in a way compatible with Convention rights.

- Strength: Imposes a strong interpretive obligation on UK courts, going beyond ordinary statutory interpretation.

- Impact on sovereignty:

- Raises concerns that judges may override Parliament’s apparent intention when applying s. 3.

- Seen by critics as judicial law-making, diluting orthodox Diceyan sovereignty.

- Key case – R v A (Complainant’s Sexual History) [2002]:

- Defendant argued Article 6 (fair trial) rights were compromised by s. 41 YJCEA 1999, which restricted evidence of complainant’s sexual history.

- House of Lords used s. 3 HRA to interpret the statute more flexibly, allowing admission of evidence where necessary for a fair trial.

- Demonstrated how s. 3 could be used to reshape legislation to align with Convention rights, even against Parliament’s restrictive wording.

How did Lord Steyn apply Section 3 HRA in R v A (Complainant’s Sexual History), and what limits have courts placed on this interpretive power?

- Strong obligation: Lord Steyn emphasised that s. 3(1) HRA imposes a powerful interpretative duty on courts.

- Application in R v A (2002):

- Concerned s. 41 YJCEA 1999, which restricted evidence of complainant’s sexual history.

- Defendant argued this violated Article 6 ECHR (fair trial).

- Lord Steyn read into the statute a new provision: evidence necessary to ensure a fair trial must not be treated as inadmissible.

- Impact: Demonstrated that s. 3 could be used to reshape legislation to protect Convention rights, even where this conflicted with Parliament’s apparent intention.

- Subsequent cases: Courts confirmed Steyn’s approach but stressed limits:

- Section 3 interpretations are only appropriate where they do not go “against the grain” of the underlying policy and scheme of the legislation.

- Ensures judicial creativity does not amount to rewriting Parliament’s law wholesale.

How does the Human Rights Act 1998 affect parliamentary sovereignty, and what is its constitutional status?

- Section 3 HRA: Gives courts a powerful interpretive tool, stronger than purposive interpretation, allowing legislation to be read compatibly with Convention rights.

- Impact on sovereignty:

- Similar (though less pronounced) to the effect of s. 2 ECA 1972, which entrenched EU law supremacy.

- The HRA operates as a constitutional statute, with higher status than ordinary statutes.

- Example – R v A (CSH):

- Even though the Youth Justice and Criminal Evidence Act 1999 was passed after the HRA, it was “governed” by the HRA.

- Courts used s. 3 to read in Convention rights standards, overriding restrictive provisions.

- Constitutional significance:

- The HRA entrenches rights protection across all subsequent legislation.

- Confirms that Parliament can enact statutes of constitutional status, which shape and constrain the interpretation of later “ordinary” statutes.

What is the constitutional role of Section 4 of the Human Rights Act 1998, and how does it differ from “strike down” powers in other systems?

- Provision (s. 4(2)): Courts may issue a declaration of incompatibility if a statutory provision conflicts with a Convention right.

- Effect:

- Unlike “strike down” powers in other jurisdictions, a declaration does not invalidate the law (s. 4(6)).

- It has a political effect, flagging incompatibility for ministers to consider.

- Function:

- Operates as an alternative to s. 3 (interpretive obligation).

- Used when legislation cannot be read compatibly without going “against the grain” of Parliament’s intent.

- Political response:

- Declarations are significant interventions; in practice, governments usually amend the law, though they are not compelled to.

- Key case – A & Others (Belmarsh) [2004]:

- House of Lords declared anti-terrorism detention provisions incompatible with ECHR rights.

- Government subsequently re-evaluated its policy.

- Academic view:

- Section 4 is seen as a form of indirect constitutional review—courts cannot strike down legislation, but they can trigger political accountability and reform.

What is the role of Section 19 of the Human Rights Act 1998, and how does it reflect the political nature of rights protection?

- Provision: Before second reading of a Bill, the sponsoring minister must make a statement on compatibility with Convention rights.

- Options for the minister:

- State that the Bill is compatible with the ECHR, or

- Acknowledge that it is not compatible, but that the government nevertheless wishes Parliament to proceed.

- Political emphasis:

- Compatibility is treated as a political judgment, not a legal bar to legislation.

- Parliament can still pass laws that may be incompatible, provided a statement is made.

- Judicial role:

- Ultimately, courts decide whether legislation is compatible.

- There have been cases where Bills given a positive s. 19 statement were later found incompatible by the courts.

- Constitutional significance:

- Section 19 highlights the dialogue between Parliament and the courts.

- Reinforces that sovereignty remains with Parliament, but judicial review under the HRA ensures accountability for rights protection.

How does the Human Rights Act 1998 balance stronger rights protection with the preservation of parliamentary sovereignty?

- Purpose of the HRA: Designed to strengthen rights protection by incorporating the ECHR into UK law.

- Accommodation with sovereignty:

- The Act avoids undermining Diceyan parliamentary sovereignty by limiting judicial powers.

- Key mechanisms:

- Section 4: Courts can issue declarations of incompatibility, but these do not invalidate legislation—leaving the final decision to Parliament.

- Section 6(1): Public authorities must act compatibly with ECHR rights.

- Section 6(2): Provides a statutory defence—authorities may plead they were obliged to act under incompatible legislation that could not be reconciled using s. 3 powers.

- Impact on sovereignty:

- Ensures rights protection without granting courts full “strike down” powers.

- If all violations were automatically unlawful, sovereignty would have been more radically curtailed.

- Instead, the HRA represents a compromise model: strong rights enforcement, but ultimate authority remains with Parliament.

Does the Human Rights Act 1998 fundamentally undermine parliamentary sovereignty?

- Debate: The HRA has generated discussion about its impact on Diceyan sovereignty.

- Constitutional status: It is a constitutional statute, giving it dominant effect over ordinary statutes while it remains in force.

- Reversibility: Parliament retains the ability to repeal or amend the HRA, just as it repealed the ECA 1972 during Brexit.

- Practical effect:

- While in force, the HRA shapes interpretation of all subsequent legislation (via s. 3) and enables declarations of incompatibility (s. 4).

- Its authority lasts only as long as Parliament chooses to maintain it.

- Conclusion: The HRA represents a significant qualification of sovereignty, but it does not fundamentally undermine the principle of Parliament as a continuing sovereign institution.

Is parliamentary sovereignty compatible with the Human Rights Act 1998?

- Formally: Yes, Parliament remains sovereign and can repeal the HRA.

- In spirit: Arguably not, because s. 3 gives courts a powerful interpretive tool that can reshape later statutes.

- Effect: Sovereignty is qualified, but not destroyed — Parliament retains ultimate authority.

What is notable about Lord Steyn’s background in relation to his strong human rights stance?

Lord Steyn had a strong human rights background.

• He left South Africa due to apartheid, shaping his commitment to rights protection.

• This influenced his robust use of s. 3 HRA powers in R v A.

What does Section 2(4) of the European Communities Act 1972 provide, and why is it significant?

• States that any enactment passed or to be passed shall be construed and have effect subject to EU law.

• Significance: Conflicts with Dicey’s orthodox view that Parliament cannot bind future Parliaments.

• Effect: Entrenched EU law supremacy over domestic law.

What is the current situation of EU law in the UK post-Brexit?

1. Assimilated law: Bulk of EU law converted into domestic law; supremacy of EU law no longer applies.

2. Withdrawal Agreement: In areas covered (e.g., Northern Ireland Protocol), EU law supremacy still applies.

• Impact: Prevented chaos by retaining continuity, while ending general supremacy of EU law.