In many countries it is the written constitution which is supreme. Consequently, where certain fundamental rights are guaranteed by such a constitution, Parliament cannot legislate in order to remove or modify those rights. This, therefore, indicates that Parliament is not the sovereign, supreme law-maker.
The Fifth Amendment of the United States constitution, for example, prohibits the taking of property without just compensation. Accordingly, any legislation attempting to authorise the compulsory acquisition of a person’s land with little or no compensation entitlement would be struck down by a court in the United States as being ultra vires the constitution, indicating that the court is the guardian of such fundamental constitutional provisions. In the UK, with its unwritten constitution, it is Parliament which is sovereign and supreme. In other words, Parliament is the ultimate and, in theory, unlimited law-maker.
The ‘primacy’ of enacted legislation (subject to the status of the law of the European Union) is well illustrated in three cases where it was argued that the European Convention on Human Rights should be accepted as part of our municipal law. In the first of these cases – R v General Medical Council ex p Colman(1990), dealing with a restriction on the advertising of holistic medicine – it was held by the Court of Appeal that the General Medical Council’s power was not subject to the Convention because there was no ambiguity in the statute concerned, the Medical Act 1983. Furthermore the relevant section of the statute did not deal with the international obligations of the UK under the Convention.
The leading case for present purposes is undoubtedly R v Secretary of State for the Home Department, ex p Brind and Others(1991) where it was held by the House of Lords that the Convention does not form part of English law. On the facts of this case, concerning certain statutory discretionary powers of the Home Secretary in relation to broadcasting restrictions in Northern Ireland, it was con- cluded that there is no presumption that that discretion should be exercised in accordance with the Convention. Nevertheless if there is some uncertainty or ambiguity in an English enactment, resort may be made to the Convention.
This, presumably, would extend to any similar international Convention. In R v Secretary of State for the Environment and Secretary of State for Wales, ex p NALGO (1992) the High Court affirmed the principle that there is no presumption that formal, substantive legislation should conform to the Convention here in the context of a dispute about restrictions on the political activities of local govern- ment officers. More recently, in R v Secretary of State for the Home Department, ex p McQuillan(1995), Sedley J in the High Court stressed that the jurisprudence of the European Court of Justice showed that the principles of the Convention now inform the law of the European Union. Accordingly, our own national law can now take notice of the Convention in setting its own standards. Ignorance of the Convention by the common law would therefore be unreal and potentially unjust. Although the learned judge did not depart from Brind, he concluded that the legal standards by which the decisions of public bodies are supervised could, and should, differentiate between ‘fundamental’ rights and those not enjoying such pre-eminence. At this point Sedley J considered that the standard of justification of infringements of rights and freedoms by executive decision must vary in proportion to the significance of the right in issue.
Because Parliament, ie the Queen, House of Commons and House of Lords, has a theoretically unlimited power to make law by statute, it could legislate on any matter, but in practice there are all sorts of constraints on its power, such as political opinion. As a result it is usually accepted that Parliament will not enact retrospective legislation in order, eg to penalise action which has taken place previously in the absence of any legal sanctions. Nevertheless, there are occa- sional exceptions, as in the case of the War Damage Act 1965. This Act was passed as a result of the decision in Burmah Oil Co v Lord Advocate(1964) where it was decided that compensation was payable by the government to the com-
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pany where it had, during wartime, destroyed one of its oil refineries to prevent it falling into the hands of the advancing Japanese army. In order to prevent similar claims for compensation for such events which had occurred previously, the Act of 1965 was framed to act retrospectively.
Such retrospective legislation might be necessary where (for example) money is spent or action is taken in advance of legislation appearing on the statute book if there are no statutory powers to justify such expenditure or other action. This was the issue before the High Court in R v Secretary of State for Health and Others, ex p Keen (1990) where it was held that pre-existing statutory powers in the National Health Service Act 1977 were wide enough to justify various acts such as the preparation of applications for National Health Service ‘trust’ status prior to new legislation reaching the statute book. Had this not been the case so-called
‘paving’ legislation would have been necessary in order to justify these prepara- tory acts. However, ‘paving’ powers are to be found in the Health Authorities Act 1995 in anticipation of the replacement of existing health authorities. Section 3 of the Act stipulates that the functions of ‘existing’ authorities ‘shall include the power to do anything which appears appropriate for facilitating the implementa- tion of any provision made by or by virtue of the Act’.
One area of law-making by Parliament which has had profound constitu- tional implications relates to the UK’s accession to membership of what was known originally as the European Economic Community (EEC), and now known as the European Union (EU). As a result of the European Communities Act 1972 the UK became part of an economic union of Member States of the EU through acceptance of the Treaty of Rome, which contains the fundamental laws and constitution of the EU. Accordingly, where EU law governs a situation then Parliament has disabled itself through the Act of 1972 from legislating in that area. By way of an example, Article 48 of the Treaty stipulates that there shall be no discrimination against the workers of Member States from moving freely between those states. Any attempt by Parliament to legislate, eg to protect the jobs of UK workers, would be contrary to Article 48 where the legislation appeared to permit discrimination against workers from other Member States.
More generally, it appears that Parliament gave away some of its sovereignty and supremacy in legislating the European Communities Act. In theory, Parliament could repeal the Act to regain its sovereignty and supremacy in full, although it is argued that the financial and economic implications for the coun- try would make this very difficult.
In the meantime the European Court of Justice continues to limit the scope of sovereignty. In Factortame Ltd and Others v Secretary of State for Transport(No 2) (1990) it was held that where a national court has made a reference to the European Court of Justice, an English court may grant an injunction against the Crown or even suspend the operation of an Act of Parliament although there is no power to do so under English law. It was held by the House of Lords in R v Secretary of State for Employment, ex p Equal Opportunities Commission(1993) that a
Divisional Court of the High Court had power to make declarations that certain aspects of employment law in the UK were incompatible with Article 119 of the Treaty of Rome and accompanying Directives. The issue referred to the European Court of Justice in Factortameconcerned the need to set aside a rule of national law considered to be the sole obstacle preventing the grant of interim relief in a case before the court concerning the law of the European Union if, otherwise the full effectiveness of a decision on the substantive issues of Union law would be impaired. However, in R v Secretary of State for the Environment, ex p RSPB (1995) the House of Lords has held that while a reference to the European Court of Justice on questions relating to the conservation of wild birds and protection of their habitats is extant, it is inappropriate for the national court to make an interim declaration that it would be unlawful for the Secretary of State to fail to act so as to avoid deterioration of habitats and the disturbance of species in an area whose status as a special protection area is under consideration. The reason for this limit is the uncertainty of the scope and nature of any such obligation to act, an uncertainty that may be resolved only following the response of the European Court of Justice.
Where Parliament has enacted statute law its legality cannot be challenged in the High Court, as is the case in a country like the United States of America, where laws cannot be made which contravene fundamental provisions of the written constitution. In the leading case of Pickin v British Railways Board (1974) Lord Reid said that ‘the function of the court is to construe and apply the enact- ments of Parliament. The court has no concern with the manner in which Parliament or its officers ... perform these functions’. There are two qualifica- tions to this fundamental rule. First, and as seen previously in the reference to the EU, any attempt by Parliament to legislate contrary to the terms of EU law might be challenged directly or indirectly in the High Court or the European Court of Justice. In the case of any clash then clearly EU law would have to pre- vail. However, where such a challenge is made in the High Court it could be argued that, because the judges have to interpret and apply the latest law, any statute which is inconsistent with the requirements of the European Communities Act should prevail. In other words, and particularly where Parliament has legislated in full knowledge of the European Communities Act and its full effect, any later Act which is inconsistent with EU law would have to be applied by the High Court. The second qualification depends on the impor- tant distinction between primary and delegated or secondary legislation which is dealt with in Chapter 8. Where a statute confers a power to make rules, regu- lations, bylaws and so on, the minister, local authority or other agency exercis- ing such a power to make delegated legislation must remain within the terms of the primary legislation. Failure to do so means that the delegated legislation is ultra vires the primary, enabling legislation. In practice these problems tend to arise where a person has been prosecuted for failure to comply with the dele- gated legislation, in which case his argument will be that he cannot be convicted for breach of, eg statutory regulations which themselves are ultra vires.
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It has been seen that the High Court cannot question the validity in law of primary legislation so that the Act of Parliament must be interpreted and applied as it appears in the statute book. Although it is not the task of this book to cover the refinements of statutory interpretation, it should be emphasised that such interpretation can sometimes lead to a frustration of Parliament’s orig- inal intention. There is no better example of this than in the House of Lords decision in Anisminic v Foreign Compensation Commission (1969). The Foreign Compensation Act 1950 stated that decisions of the Commission (an administra- tive tribunal) should ‘not be called in question in any court of law’. Despite this apparently clear statement of Parliament’s legislative intentions, it was decided that the court could question the legality of a Commission decision if in law it was no decision at all, that is, if it was anultra viresdecision.