Law - Parliamentary Sovereignty and Fundamental cases

Miller 1 (2017)

Context: After the Brexit referendum, the government planned to trigger Article 50 TEU (starting Brexit process) using prerogative power.

Issue: Gina Miller challenged this, arguing that triggering Article 50 would remove statutory rights (those created by the European Communities Act 1972) and therefore required an Act of Parliament. Can the government use prerogative powers to trigger Article 50 and begin withdrawing from the EU, or does this require parliamentary authorization?

Outcome: Supreme Court (8-3) held that an Act of Parliament was required → triggering Article 50 would remove rights that Parliament had created through the ECA 1972. The prerogative cannot be used to change domestic law or remove statutory rights without Parliament's authorization. Prerogative exists only where statute has not occupied the field. The effect on rights was domestic and immediate → not just a treaty matter. Sewel Convention (requiring consent of devolved legislatures) was politically important but not legally enforceable.

Relevance: Fundamental restatement of De Keyser principle → prerogative cannot override or frustrate statute. Affirms parliamentary sovereignty over executive power. USE FOR: limits on executive, prerogative, courts protecting Parliament's role in major constitutional change, international treaty-making (prerogative) and domestic legal change (requires Parliament).

Miller 2 (2019)

Context: In September 2019, Boris Johnson advised the Queen to prorogue Parliament for five weeks during the critical Brexit period → prevent Parliament from sitting during crucial negotiations.

Issue: Gina Miller and Joanna Cherry challenged this as an unlawful use of prerogative to frustrate Parliament. Can courts review the prerogative of prorogation? What are the limits on executive power to prorogue Parliament?

Outcome: Supreme Court (unanimous, 11-0) held the prorogation was unlawful and void → frustrates Parliament's constitutional role without reasonable justification. Prerogative powers are limited by constitutional principles. The effect was to frustrate Parliament at a critical time. Lady Hale: the prorogation was 'unlawful, void and of no effect.' Courts can review prerogative where it affects constitutional fundamentals.

Relevance: Landmark case limiting prerogative power through constitutional principles. Courts will intervene where executive action undermines fundamental constitutional principles (parliamentary sovereignty, parliamentary accountability). Shows courts as guardians of constitution. USE FOR: reviewability of prerogative, balance between executive and Parliament, judicial intervention in executive power.

Entick v Carrington (1765)

Context: Entick was suspected of writing seditious pamphlets → King's messengers broke into Entick's house and seized his papers under a warrant issued by the Secretary of State.

Issue: There was no statutory authority for this kind of general warrant → it was done purely on executive authority. Could the executive lawfully break into someone's property and seize their papers without specific legal authorization? Did the Secretary of State have the power to issue such warrants?

Outcome: Lord Camden held that the warrant was unlawful. The executive has no power to act unless authorized by law, either by statute or common law. Since no law gave the Secretary of State this power, the search was illegal trespass. Lord Camden stated: "If it is law, it will be found in our books. If it is not to be found there, it is not law."

Relevance: Foundational case for the rule of law. Establishes that executive action must have legal authority. The state cannot interfere with individual liberty or property without clear legal basis. USE FOR: executive overreach, surveillance, police powers, and fundamental rights.

Case of Proclamations (1611)

Context: King James I attempted to use royal proclamations to regulate various matters including building in London and the manufacture of starch.

Issue: The question arose whether the King could create new offences or change the law through proclamation alone, without Parliament. Does the Crown have prerogative power to create new offences, impose new obligations, or change the common law by proclamation?

Outcome: Sir Edward Coke CJ held that the King has no power to create new offences or change the law by proclamation. The King has 'no prerogative but that which the law of the land allows him.' Proclamations can only enforce existing law, not create new law. The King cannot make anything an offence that was not an offence before. The prerogative exists within the law, not above it.

Relevance: Fundamental constitutional principle that the Crown cannot legislate → only Parliament can make or change law. USE FOR: limits on prerogative power, separation between executive and legislative functions, parliamentary sovereignty.

Pickin v British Railways (1974)

Context: Pickin challenged the British Railways Act 1968 (a private Act of Parliament), claiming that the Board had misled Parliament during the legislative process by not properly notifying affected landowners. He argued this procedural irregularity meant the Act should be invalid.

Issue: Can courts inquire into Parliamentary procedures to determine whether an Act of Parliament was properly passed? Can courts invalidate an Act on grounds of procedural irregularity?

Outcome: House of Lords unanimously held that courts cannot question the validity of an Act of Parliament. Once a Bill receives Royal Assent and appears on the parliamentary roll, it is an Act of Parliament and courts must apply it → Courts cannot look behind the Act to examine the legislative process. Lord Reid: "The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its Standing Orders perform these functions."

Relevance: Absolute statement of parliamentary sovereignty → courts cannot invalidate Acts of Parliament for any reason, including procedural irregularity. The enrolled bill rule prevents judicial scrutiny of Parliament's internal processes. USE FOR: limits of judicial review, parliamentary sovereignty.

Factortame (No 2)

Context: Spanish fishermen registered companies in the UK to fish in UK waters under EU fishing quotas. The UK passed the Merchant Shipping Act 1988, which imposed nationality requirements that effectively excluded the Spanish boats.

Issue: The fishermen claimed this violated EU law (specifically freedom of establishment). Where UK statute conflicts with EU law, which prevails? Can UK courts disapply an Act of Parliament? Can courts grant interim relief (injunction) against the Crown?

Outcome: House of Lords (following ECJ ruling) held that UK courts must disapply Acts of Parliament that conflict with directly effective EU law. Courts granted an interim injunction suspending the application of the 1988 Act → something previously thought impossible against the Crown and statute. Lord Bridge: EU law supremacy was inherent in the European Communities Act 1972 → Parliament had voluntarily accepted this when joining the EU. Courts could set aside UK primary legislation where it conflicted with EU law.

Relevance: First time UK courts disapplied an Act of Parliament → Revolutionary challenge to traditional parliamentary sovereignty. Showed sovereignty is not absolute when Parliament voluntarily limits itself (through ECA 1972). Post-Brexit, this principle no longer applies, but the case remains important for understanding how sovereignty can be qualified and what happens when constitutional principles conflict. Shows courts will enforce Parliament's intentions even when this means limiting sovereignty. USE FOR: judicial role as a constitutional safeguard, challenge to parliamentary sovereignty.

Thoburn v Sunderland City Council (2002)

Context: Thoburn (a greengrocer) was prosecuted for selling bananas by the pound rather than metric measurements. He argued that the Weights and Measures Act 1985, which allowed imperial measures, impliedly repealed the regulations under the European Communities Act 1972.

Issue: Had the regulations impliedly repealed the earlier Act allowing imperial measurements? Can constitutional statutes be impliedly repealed?

Outcome: Laws LJ held that the regulations had not impliedly repealed the 1985 Act. Created a new category of "constitutional statutes" → statutes that condition the legal relationship between citizen and state or enlarge or diminish fundamental constitutional rights. Constitutional statutes (like Magna Carta 1297, Bill of Rights 1689, Acts of Union, Human Rights Act 1998, ECA 1972) cannot be impliedly repealed → only expressly repealed. Ordinary statutes can still be impliedly repealed.

Relevance: Creates hierarchy of statutes → challenges pure Diceyan sovereignty where all Acts are equal. Constitutional statutes have special protection and require clearer statement to repeal. USE FOR: constitutional framework, modern parliamentary sovereignty, Brexit debates (whether ECA 1972 could be repealed), and protection of fundamental rights.

Jackson v Attorney General (2005)

Context: The Hunting Act 2004 banned fox hunting, passed using the Parliament Act 1911 (as amended by Parliament Act 1949), which allows Commons to bypass Lords' veto.

Issue: Pro-hunting campaigners challenged whether the Parliament Acts were valid procedures for making law, arguing the 1949 Act (which extended the 1911 Act) was itself invalid because it was passed under the 1911 Act. Was the Parliament Act 1949 validly enacted? Can Parliament use the Parliament Act procedure to amend itself? Are there limits to parliamentary sovereignty?

Outcome: House of Lords held the 1949 Act was valid → the 1911 Act allowed amendment of itself → The Hunting Act was therefore valid. BUT several judges made obiter comments suggesting parliamentary sovereignty might have limits. Lord Steyn: "The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom." Lord Hope: "Parliamentary sovereignty is no longer, if it ever was, absolute." Lord Steyn suggested courts might not apply an Act attempting to abolish judicial review or subvert the rule of law. Baroness Hale: hypothetical limit if Parliament tried to abolish democracy.

Relevance: While upholding sovereignty in result, the obiter dicta suggest possible extreme limits → courts might refuse to apply an Act that destroys the rule of law or democracy itself. Cited in debates about Safety of Rwanda Act and ouster clauses. Shows judicial thinking evolving beyond pure Diceyan sovereignty. USE FOR: limits to sovereignty, parliamentary sovereignty.

HS2 Action Alliance (2014)

Context: Opponents of the High Speed 2 (HS2) railway challenged the hybrid Bill authorizing it, arguing it violated EU environmental law and constitutional principles. They claimed it would affect fundamental rights and constitutional statutes.

Issue: Can courts review primary legislation (Bills before enactment) for compliance with constitutional principles? Do constitutional principles or statutes have special status that limits Parliament?

Outcome: Supreme Court held that courts cannot review Bills → only Acts after enactment. However, Lords Neuberger and Mance (obiter) suggested that constitutional principles might be so fundamental that even Parliament cannot override them without express words. Hint at possible judicial resistance to Parliament removing fundamental rights or judicial review. Constitutional statutes might require particularly clear language to repeal. Courts might enforce "manner and form" restrictions in extreme cases.

Relevance: Reinforces Thoburn's constitutional statutes concept. Suggests growing judicial willingness (at least theoretically) to protect constitutional fundamentals. Important for debates about whether courts could refuse to apply Acts breaching rule of law. Shows tension between sovereignty and constitutionalism. Cited in Privacy International and Rwanda Act debates. USE FOR: judicial constitutional safeguard.

R(Evans) v Attorney General (2015)

Context: Rob Evans (Guardian journalist) sought disclosure of Prince Charles's letters to government ministers ("black spider memos") under Freedom of Information Act → Upper Tribunal ordered disclosure → Attorney General used ministerial veto under FOIA s53 to override the Tribunal's decision.

Issue: Can the executive (Attorney General) override a final judicial decision using statutory veto power? What are the limits on such powers?

Outcome: Supreme Court (5-2) held the veto was unlawful. While the statute gave power to override, it had to be exercised reasonably and within constitutional principles. The AG could not simply disagree with the Tribunal's reasoning → there had to be materially different reasons. Lord Neuberger: the constitutional principle that executive cannot override courts applies even where statute appears to authorize it. The veto power was not unlimited → subject to rule of law constraints. Fundamental principle: executive should not have last word against courts.

Relevance: Establishes strong principle that executive cannot override judicial decisions even with statutory authority. Statute will be read narrowly to protect judicial independence and rule of law. USE FOR: separation of powers and rule of law, courts protecting their constitutional role, government overriding court decisions, principle of legality in action (Parliament must use clear, unambiguous language to override fundamental common-law rights or freedoms).

Internal Market Act 2020

Context: Post-Brexit statute designed to ensure free trade across UK's four nations (England, Scotland, Wales, Northern Ireland). Created "mutual recognition" and "non-discrimination" principles to prevent regulatory divergence creating internal trade barriers.

Issue: Balance between UK-wide market regulation and devolved regulatory autonomy. Also controversial clauses initially allowed ministers to breach international law (Northern Ireland Protocol).

Outcome: Act passed despite opposition from devolved governments. Centralizes significant regulatory power at UK level. Constrains devolved legislatures' ability to regulate their own markets distinctively.

Relevance: Major post-Brexit constitutional controversy. Shows tension between Westminster sovereignty and devolution settlement. Scottish/Welsh governments saw it as power grab. USE FOR: Devolution, multilayered constitution, Brexit constitutional implications, and conflict between UK-wide governance and regional autonomy, future of UK union and respect for devolution.

Safety of Rwanda Act 2024

Context: After the Supreme Court ruled in AAA v SSHD (2023) that Rwanda was not a safe country for asylum seekers, government passed an Act declaring Rwanda safe as a matter of domestic law. Act requires courts and tribunals to treat Rwanda as safe and limits grounds for individual challenge.

Issue: Can Parliament legislate facts into existence? Can it exclude judicial review? What are limits of parliamentary sovereignty when it conflicts with rule of law?

Outcome: Act passed → Requires decision-makers to conclusively treat Rwanda as safe country. Prevents challenges based on general safety of Rwanda. Limits individual challenges to specific personal risk factors.

Relevance: Extreme test of parliamentary sovereignty vs rule of law. Parliament asserting power to determine facts and limit judicial review. Raises questions from Jackson/HS2 about whether there are limits to what Parliament can do. Shows tension between political will and judicial independence. USE FOR: debates about ouster clauses, separation of powers, and constitutional limits, undermining rule of law but parliament sovereign.

R (UNISON) v. Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409

Context: The Lord Chancellor introduced employment tribunal fees in 2013. Claimants had to pay up to £390 for simpler claims and £1,200 for more complex claims, such as unfair dismissal or discrimination. The aims were to recover costs, deter weak claims, and encourage settlement.

• After the fees were introduced, tribunal claims fell by around 70%, with some discrimination and pregnancy/maternity claims falling even more sharply

Issue: UNISON challenged the fees, arguing that they made access to justice practically unaffordable

• Whether the fees unlawfully interfered with the constitutional right of access to justice

• Exceeded the Lord Chancellor’s statutory powers

• Breached the common law right of access to courts

• Were disproportionate to the aims of cost recovery and deterring weak claims

• Indirectly discriminated against women, who were disproportionately affected by discrimination-claim fees

Outcome: The Supreme Court unanimously held that the fees were unlawful and quashed the Fees Order

• Lord Reed held that access to courts is a fundamental constitutional right → essential to the rule of law, because legal rights are meaningless if people cannot enforce them

• Fees effectively prevented access to justice.

Relevance: Access to justice is constitutional, principle of legality must be accessible to uphold the rul of law

• Limits executive power 

• Shows courts scrutinising evidence

• USE FOR: access to courts is a fundamental constitutional right and an essential element of the rule of law.