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Invalidity, Disapplication and the Construction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light of the European Communities Act and the Human Rights Act
Published online by Cambridge University Press: 27 October 2017
Extract
An Act passed by a Parliament may fail to apply to a given set of circumstances for one of two reasons, neither of which is mutually exclusive of the other. The first of those reasons is that the Act falls outside the legislative competence of the Parliament, in which case it is usually said that the Act is unconstitutional or legally invalid. The second is that the Act does not attempt to apply even though the Parliament possessed the competence to make it apply to the same circumstances. The process by which it is determined that the Act does not apply for that reason is one of statutory construction or interpretation. It is possible to describe such an Act as merely non-applicable or non-operative. There will be situations where both reasons may coincide, especially if there is created a statutory presumption in favour of giving an Act a construction, which will ensure its validity. But only the first of the two reasons mentioned above involves a challenge to the supremacy of the Parliament concerned.
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- Research Article
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 1999
References
1 See e.g. before the decision of the House of Lords in Reg v. Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603 (“Factortame case No 2”); Jaconelli, J., Enacting a Bill of Rights: The Legal Problems (Oxford, Clarendon, 1980), 124–6, 159–168, 171–3, 255–8Google Scholar; Winterton, G., “The British Grundnorm: Parliamentary Supremacy Re-examined” 92 (1976) LQR, 591 Google Scholar and also “Parliamentary Supremacy and the Judiciary” 97 (1981) LQR, 265 and “Can the Commonwealth Parliament Enact ‘Manner and Form’ Legislation?” 11 (1980) Fed L Rev, 167; O’Neill, N., “The Australian Bill of Rights Bill 1985 and the Supremacy of Parliament” 60 (1986) Australian Law Journal, 139 Google Scholar. For writing after that decision see e.g. SirW., Wade, “What has Happened to the Sovereignty of Parliament” 107 (1991) 107 LQR, 1 Google Scholar and also “Sovereignty—Revolution or Evolution” 112 (1996) LQR, 568; Craig, P., “Sovereignty of the United Kingdom Parliament after Factortame ” 11 (1991) YEL, 221 Google Scholar; Allan, T., “Parliamentary Sovereignty: Law, Politics, and Revolution” 113 (1997) LQR, 443 Google Scholar; Eekelaar, J., “The Death of Parliamentary Sovereignty—A Comment” 113 (1997) LQR, 185 Google Scholar.
2 The treaties are listed in s1 of the 1972 Act referred to in the text, as amended by the European Communities (Amendment) Act 1993 (UK). In this article the term “Community law” is used to refer to the law comprised in or made under those treaties.
3 Factortame case No 2 [1991] 1 AC 603 at 658–9 per Lord Bridge.
4 Factortame case No 2 [1991] 1 AC 603 [House of Lords]; Reg v. Secretary of State for Employment; Ex parte Equal Opportunities Commission [1995] 1 AC 1[House of Lords] (“EOC case”). The cases which dealt with the position before the decision of the House of Lords in the first of those of those cases are cited by Winterton above n 1, 11 (1980), Fed LRev 167, 178–180.
5 R v. Secretary of State for Transport ex parte Factortame Ltd and Others (No. 5) [1999] 3 WLR, 1062 (“Factortame case No 5”).
6 Reg v. Director of Public Prosecutions; Ex parte Kebilene [1999] 3 WLR 972, 987.
7 The position is different as regards legislation passed by the legislatures of Scotland and Northern Ireland under the devolution arrangements as to which see Scotland Act 1998 (UK) s 29(1)(d) and) Northern Ireland Act 1998 (UK) s6(2)(c).
8 This conflicts with the assumption made by the British Government: Beloff, B. in Betten, L. (ed.), The Human Rights Act 1998: What it Means (1999), Ch 1 at 26 Google Scholar: “It is not the intention of the Bill to repeal any pre-existing legislation that is incompatible with the [European] Convention [on Human Rights].” See also the Government’s White Paper, “Rights Brought Home: the Human Rights Bill” (October 1997 Cm 3782) para 2.13: “The Government has reached the conclusion that courts should not have the power to set aside primary legislation, past or future, on the ground of incompatibility with the Convention.” (Emphasis added).
9 Compare as regards s3 of the Human Rights Act, “The Human Rights Act 1998 and constitutional principles”, No 2 (1999) Legal Studies 165, 180Google Scholar. The House of Lords had rejected amendments to a previous Human Rights Bill which would have made explicit the need for express provisions to repeal or amend the provisions of that bill: Marshall, G., “Patriating Rights—With Reservations: The Human Rights Bill 1998” in Beatson, J., Forsyth, C. and Hare, I. (eds), Constitutional Reform in the United Kingdom: Practice and Principles (Cambridge, The University of Cambridge Centre for Public Law, 1998), 74 Google Scholar.
10 This in fact was the position reached in Reg v. Drybones (1969) 9 DLR (3d) 473 in relation to the Canada’s statutory Bill of Rights although there is dicta in the case which suggests that the provisions in question were effective even against legislation enacted after the passing of the Bill of Rights at 481 where Ritchie J, in delivering the judgment of the majority, quoted with approval from the dissenting judgment of Cartwright, J in Robertson and Rosetanni v. The Queen (1964) 41 DLR (2d) 485, 489Google Scholar. See also Winterton above n 1 in 11 Fed L Rev (1980) at 184–5.
11 Winterton above n 1 in 92 (1976) LQR at 614 n 56 who suggests that this would probably be the way the provision would have been characterised by Lord Diplock.
12 See Reg v. Secretary of State for the Home Department; Ex parte Fire Brigades Union [1995] 2 AC 513, 526 per Hobhouse LJ [CA] and 570–1 per Lord Lloyd [HL]. The latter case suggests, however, that the Parliament would have to make it clear that the Minister was given an unfettered discretion to determine not only when but whether the Act should come into force if that is what is intended.
13 Factortame case No 5 [1999] 3 WLR 1062, at 1076–1077 per Lord Slynn and 1084–1085 per Lord Hope.
14 South Eastern Drainage Board (SA) v. Savings Bank of South Australia (1939) 62 CLR 603 (hereafter referred to as the “South Eastern Drainage Board case”).
15 Ibid at 626–7.
16 To use an expression used in another connection by Barwick, CJ in Strickland v. Rocla Concrete Pipes Ltd (1970) 123 CLR 468 at 492Google Scholar.
17 In re Silver Brothers Ltd [1932] AC 514, 523 per Lord Dunedin and quoted with approval in the South Eastern Drainage Board case (1939) 62 CLR 603, 623 and 626.
18 Reg v. Secretary of State for Transport; Ex parte Factortame Ltd [1990] 2 AC 85 at 140 (“Factortame case No 1”).
19 Wade above 1 and also in SirWade, W. and Forsyth, C. (eds), Administrative Law 7th ed.(Oxford, Clarendon, 1994), 30–1Google Scholar strongly favoured the view that there has been a modification. See for the contrary view Sir John Laws, “Law and Democracy” [1995] Public Law, 72, 89; Craig above n 1; Allan above n 1. The statutory construction explanation was also lucidly expressed in the arguments of counsel in the Factortame case No 1 [1990] 2 AC 85, 96–8.
20 [1995] 1 AC 1, 27.
21 [1991] 1 AC 603, 658–9.
22 Wade above n 1, 112 LQR, 568 at 572–3.
23 [1991] 1 AC 603, 658–9.
24 Above n 18 and accompanying text. Ironically this may be a case where it would be argued that the earlier remarks are not overtaken by the later remarks because of the possibility of reading the later remarks in a way that does not conflict with the earlier remarks!
25 Wade and Forsyth above n 19 at 30.
26 As to whether Parliament is itself bound to follow the procedure created by s19 see Bamforth N., “Parliamentary Sovereignty and the Human Rights Act 1998” [1998] Public Law, 572, 575–582 and Feldman D., above n 9 at 185.
27 (1939) 62 CLR 603.
28 Eg see Pidoto v. Victoria (1943) 68 CLR 87, 108–110 per Latham CJ. For a recent and more questionable instance of the courts being required to “legislate” see Western Australia v. The Commonwealth (The Native Title Act Case) (1995) 183 CLR 373, 484–8.
29 Winterton above n 1, 92 LQR, 591 at 617 who quoted Middleton, K., “New Thoughts on the Union Between England and Scotland” 66 (1954) Jur. Rev., 37, 57 n 53Google Scholar.
30 [1932] 1 KB 733 [Divisional Court].
31 [1934] 1 KB 590 [Court of Appeal].
32 Ibid at 595–6.
33 (1939) 62 CLR 603.
34 Ibid at 623 per Starke J, 633–4 per Evatt J, and 636 per McTiernan J. Although he did not mention the Ellen Street Estate case, Latham CJ observed that it “was recognised as a general principle of English constitutional law that one parliament cannot bind its successors, and it was conceded that the Parliament of South Australia could, after the passing of the Real Property Act, enact provisions inconsistent with that Act…”, at 618–9. See also Travinto Nominees Pty Ltd v. Vlattas (1973) 129 CLR 1, 33–5 per Gibbs J; Kartinyeri v. The Commonwealth (1998) 72 ALJR 722, 729 at para 13 n 25 per Brennan CJ and McHugh J; and “A Bill of Rights for Australia”: Exposure Report by the Senate Standing Committee on Constitutional and Legal Affairs (1985) paras 4.13–4.21 at 56–8 esp paras. 4.18–4.19, at 57–8 as regards the views of Gibbs CJ.
35 See the articles by Winterton and O’Neill above n 1.
36 [1920] AC 691.
37 [1920] AC 691 at 704–6 and 714.
38 Ibid at 705–6. In doing so the Privy Council disagreed with a majority of the High Court in that case and also by necessary implication, an earlier contrary decision of the High Court in Cooper v. Commissioner of Taxation (1907) 4 CLR 1304. It is ironic that the counsel who advanced the unsuccessful arguments included Maugham KC who was presumably the same Maugham LJ whose remarks in the Ellen Street Estates case are often quoted in support of the traditional view of parliamentary sovereignty.
39 McCawley’s case [1920] AC 691, 704. Their Lordships also stated that if a constitution was uncontrolled “it would be an elementary commonplace that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject matter.”
40 (1973) 38 DLR (3d) 481.
41 (1969) 9 DLR (3d) 473 at 481 following the view expressed by Cartwright J as he was then in Robertson and Rosetanni v. The Queen [1964] 41 DLR (2d) 485 at 489.
42 (1939) 62 CLR 603.
43 The problem in South Eastern Drainage Board case was that those provisions were held not to be “laws respecting the constitution, powers, and procedures” of the South Australian legislature. The power to impose requirements as to the manner and form of legislation only applies to provisions of that character. For the provisions that relate to the jurisdiction of the Victorian Supreme Court see Constitution Act 1975 (Vic) ss18(2A) and 85. In City of Collingwood v. Victoria [1994] VR 652 at 670 Brooking J described those provisions as providing protection against the inadvertent legislative limitation of the jurisdiction of that Court.
44 Kartinyeri v. The Commonwealth (1998) 72 ALJR 722 at 729, para. 13 n 25 per Brennan CJ and McHugh J and cf Winterton above n 1, 11 (1980) Fed L Rev, 167, 190–1 and generally O’Neill above n 1.
45 (1988) 165 CLR 56, 63 per Mason CJ, Brennan Deane, Dawson and Guadron JJ (empha sis added).