‘(T)here is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An Act of the 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 a judgement as to the validity of an Act of Parliament’.
Lord Wolf 5 has argued that there may be circumstances in which the courts might no longer be required to obey an Act of Parliament. In his opinion;
‘….I myself would consider there were advantages in making It clear that ultimately there are even limits on the supremacy of Parliament which it is the courts in alienable responsibility to identify and uphold. They are limits of the most modest dimensions which I believe any democrat would accept. They are no more than are necessary to enable the Rule of Law to be preserved’.
Thus in Lord Woolf’s analysis, an Act which contravened the requirements of the rule for law could be disobeyed by the courts. Lord Woolf’s remarks can be contrasted with those of Lord Steyn. Whilst delivering a lecture in 1996 Lord Steyn observed that:
‘The relationship between the judiciary and the legislature is simple and straight forward Parliament asserts sovereign legislative power. The courts acknowledge the sovereignty of Parliament. And in countless decisions the courts have declared the unqualified supremacy of Parliament. There are no exceptions’.
A legislation enacted by one Parliament is not immune from amendment or repeal by legislation enacted by a later Parliament and therefore, supremacy can be said to be a contributing attribute of Parliament. This means that Provisions in an earlier Act or an whole itself can be amended or repealed, providing the New Parliament finds inconsistencies with the earlier Act. The extent of the amendment or repeal will be stated in the later Act and will take legal effect once the Act or the relevant provision has come into force. This amounts to an express repeal of the earlier provision.
There may be occasions, however, when an inconsistency of between Acts of Parliament has escaped the attention of the legislative draftsman (Parliament counsel). In such circumstances, the doctrine of implied repeal holds that the Act will impliedly repeal the earlier Act to the extent to which the two are inconsistent with one another.
Vauxhall Estates Ltd v Liverpool Corpn (1932), Section 2 of the Acquisition of Land (Assessment of Compensation) Act 1919 provided for the assessment of compensation where land had been compulsorily purchased by a public authority. Section 7(1) of the same Act sought to preserve the provisions of the 1919 Act by declaring that provisions of other Acts had effect subject to the 1919 Act and that if they were inconsistent, they will cease to have or shall have no effect. Section 46 of the Housing Act 1925 also provided for the assessment of compensation, but in different terms. The question for the court, therefore, was whether the 1919 Act was able to protect itself from later repeal or amendment DC held: the suggestion that the hands of Parliament could be tied so that it could not subsequently enact provisions inconsistent with the 1919 Act was contrary to the principle of the UK constitution. No Act of Parliament could effectively provide that no future Act shall interfere with its provisions.
Following on from this, the scope for legislating would become progressively reduced as later Parliaments would be bound by the laws made by earlier Parliaments. Eventually a point might be reached at which there was little need for further enactment since the statute book was full of unrepealable laws. Accordingly, the doctrine of implied repeal prevents this from happening by holding that in the event of inconsistency between two Acts, which is the most recent expression of Parliaments will and legislative intent prevails.
The legislative supremacy of Parliament has also been affected by the UK’s membership of the EC. This raises important constitutional questions as to how that membership can be reconciled with the legislative supremacy of Parliament. A case on Factortame (No 2);
R v Secretary of state for Transport 6. The companies were incorporated under UK law. Between them, they owned 95 deep sea fishing vessels. They were registered as British under the Merchant Shipping Act 1984 and could be allotted part of the UK’s quota under the EC Common Fisheries Policy. Subsequently the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988 came into force. These required that fishing vessels be re-registered. F and the other companies were unable to satisfy the new requirement of predominantly British ownership because their vessels were managed and controlled from Spain. F and the others sought judicial review of the Act and Regulations as being contrary to the EEC Treaty. The DC sought a preliminary ruling from the ECJ on the substantive questions of EC law. In the meantime, it granted the applications interim relief and disapplied the relevant part of the 1998 Act and the Regulations. They appealed to the HL which held that as a matter of English law, the courts did not have the jurisdiction to grant relief displaying the Act. The HL referred to the ECJ the question whether as a matter of Community law, the relief could be granted.
Lord Bridge consequently gave judgement in Factortame (No 2), and addressed the question to the effect of the decision towards the supremacy of Parliament. He stated;
‘‘…….. whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it was always been clear that it was the duty of a United Kingdom court, when delivering final judgement, to override any rule of community law. Similarly, when decisions of the Court of Justice have exposed areas of United Kingdom statute law which failed to implement council directives, Parliament has always loyalty accepted the obligation to make appropriate and prompt amendments…….’’
Factortame (No 2) has broken the traditional view on the supremacy of Parliament and has transcended as a denial of the orthodoxy that Parliament cannot bind its successors. Since provisions in the 1988 Act were ‘disapplied’ under the term s 2(4) of the European Communities Act 1972. The 1972 Parliament had, in the words of Sir William Wade (see previously Wade), ‘succeeded in binding the Parliament of 1988 and restricting its sovereignty, something that was supposed to be constitutionally impossible’.
It can be argued that the principle of the legislative supremacy is being upheld because Parliament has said that it shall be the case in s(2) of the 1972 Act.
Another aspect of law which has affected the supremacy of Parliament is the Human Rights Act 1998 received Royal Assent on 9th November 1998. It was fully applicable however on the 2nd October 2000. The Act is not entrenched or repealed in the normal manner. This is unlikely to happen very often because as Professor Feldman states:
‘Although the Act is not entrenched, it will have a special status. As a matter of practical politics, it will progressively achieve a symbolic (even iconic) status which will make amendments to it politically more controversial than amendments to ordinary legislation. This will become an increasingly significant constrain on those who want to restrict the rights as a generation of citizens is educated in its provisions and grows to maturity under its influence.’
To recall the decision in Fortortame (No 2) it is clear from that case that conflict between the European Communities Act 1972 and the Merchant Shipping Act 1998 was resolved by the HL in favour of the former. A similar conclusion to Factortame (No 2)was reached by the DG in four appeals relating to offences committed under Weights and Measures legislation: See Hunt v Hackney London Borough Council, and Collins v Sutton London Borough Council (2003). In reaching the conclusion on that the 1972 Act could not be impliedly repealed by the Weights and Measures Act 1985, s1, Laws LJ had acknowledged that the common law had created a class or type of legislative provision which could not be repealed by mere implication. Laws LJ contended that the courts should also recognise ‘a hierarchy of Acts of Parliament’. That hierarchy involved making a distinction between what he termed ‘ordinary statutes’ and ‘constitutional statutes’. In Laws LJ’s opinion, a constitutional statute was a statute 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’.
The development of the common law was described by Laws LJ as being both ‘benign’ and ‘highly beneficial’. As he further states;
‘It gives us most of the benefits of a written constitution in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and he flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, apply the HRA) will pay more or less defence to the legislature, or other public decision-making, according to the subject in hand’.
Thus, it would seem that in the light of the decision in Hunt, constitutional statutes such as the European Communities Act 1972 and the Human Rights Act 1998 are not immune from express repeal, but that they are, contrary to the constitutional orthodoxy in respect of ordinary statututes immune from implied repeal.
In conclusion, it is extremely important to understand the legislature supremacy of Parliament in terms of the United Kingdom, as suggested by Dicey and the judicial obedience. Furthermore the United Kingdom’s constitution is affected considerably by the development in the field of EC Law and human rights.
A.V Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillam, 1959)
2 House of Lords
3 House of Commons
4 Wade, H W R ‘The Legal Basis of Sovereignty’ [1955] CLJ 172
5 Lord Woolf ‘Droit Public – English Style’ [1995] PL 57
6 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) (1991)