.

Topic 4 – Constitutional principles

Learning outcomes

After completing the study of the topics in this chapter, you should be able to:

● Describe in some detail the fundamental principles of the British constitution

● Explain the traditional Diceyean view of Parliamentary Sovereignty
● Understand the developments – membership of the European Union, the
enactment of the Human Rights Act 1998 and devolution – which has presented
challenges to the orthodox view of parliamentary sovereignty
● Distinguish between the legal theory and the practical and political realities
● Understand some important legal theorists’ definitions of the rule of law – in
particular, Dicey, Raz and Bingham
● Distinguish between the formal and substantive conceptions of the rule of law
● Explain the link between judicial independence and the rule of law
● Understand how the doctrine of the separation of powers exists in the UK
● Discuss the ‘Westminster model’ of a Parliamentary executive

Introduction

● The British constitution has two core principles which were described by Albert
Venn Dicey as the ‘twin pillars’ of the constitution:
○ parliamentary sovereignty - also known as the ‘legislative supremacy of
Parliament’, and
○ the rule of law.
● A third important feature is an independent judiciary - which could be described
as a partial separation of powers
Parliamentary Sovereignty.
● Parliamentary sovereignty or the legislative supremacy of Parliament was
established in the 17th constitutional settlement between the Crown and
Parliament.
● The Bill of Rights 1689 established the supremacy of Parliament over the Crown
to restrict the exercise of prerogative power.
● Avey Dicey described it as one of the twin pillars of the constitution, the other
being the rule of law.
● It is an important principle for political constitutionalists as it enables elected
● representative (MPs, Members of Parliament) rather than the judges to make key
decisions about the laws in a country.
● Role courts in case of PS would be different as compared to the state with
codified constitution is applied.
● Consitutiotinal reforms and amendments can be brought about by
Westminster parliament through passing a simple piece of legislation only with
majority vote and without following any formal process of constitutional
amendment,because of legal parliamentary supremacy legal
 entrenchment(difficulty to change ) of constitutional law is regarded as
impossible in uk.
● What is parliament? words of enacting formulae ‘be it enacted by queens most
excellent majesty , by and with the advice and consent of the lords spiritual and
temporal and commons in the present parliament assembled and by the
authority of the same as follows .

4.1.6 Judicial recognition of parliamentary sovereignty

 Jackson v Attorney General [2005] UKHL 56

o Lord Steyn described parliamentary sovereignty as judge-made
principle and ‘a construct of the common law’
 According to Barnett:
The key to understanding parliamentary sovereignty lies in its acceptance – but
not necessarily moral approval – by the judges within the legal system.
Sovereignty is therefore a fundamental rule of the common law, for it is the judges who
uphold Parliament’s sovereignty. For as long as the judges accept the sovereignty of
Parliament, sovereignty will remain the ultimate rule of the constitution.
 In Jackson, Lord Steyn also considered what exceptional circumstances or
events might lead to the courts refusing to enforce legislation.

o if there was an ‘attempt to abolish judicial review or the ordinary
role of the courts’ the courts may ‘have to consider whether this is a
constitutional fundamental which even a sovereign Parliament
acting at the behest of a complaisant House of Commons cannot
abolish’.

4.1.7 Traditional view of parliamentary sovereignty

 Miller v The Prime Minister; Cherry v Advocate General for Scotland [2019]
UKSC 4 (para.41):
o ‘[L]aws enacted by the Crown in Parliament are the supreme form of
law in our legal system, with which everyone, including the
Government, must comply.’
 Dicey’s orthodox view of parliamentary sovereignty can be divided into
three elements
o Parliament is the supreme law-making authority with unlimited
legislative competence – ‘the right to make or unmake any law
whatever’.
o no other body (and this includes the courts) may question the validity of
Parliament’s enactments – ‘…no person or body is recognised…as having a
right to override or set aside the legislation of Parliament.’
o no Parliament may bind a future Parliament or be bound by a
previous Parliament – ‘A sovereign power cannot, while retaining its
sovereign character, restrict its own powers by any particular enactment.’

1. The unlimited legislative competence of Parliament

  there is no legal limit on the subject matter on which Parliament may
legislate.
 presumption of statutory interpretation that Parliament does not intend to
legislate retrospectively or contrary to principles of international law.
o Parliament can legislate with retrospective effect, as it did in 1991
with the War Crimes Act; or in 1965 when, by passing the War
Damages Act, Parliament effectively nullified the decision of the
House of Lords in Burmah Oil Company v Lord Advocate [1965] AC
75.
 Cheney v Conn [1968] 1 All ER 779.
o In this case a taxpayer (Cheney) challenged the Inland Revenue’s
assessment of his income tax liability on the basis that some of the money
collected would be used for the manufacture of nuclear weapons which,
he argued, was contrary to the Geneva Convention – an international
treaty to which the UK was a party. Essentially, he argued that it
breached international law.
o The court, however, made clear that an Act of Parliament is the highest
form of law in the UK and prevails over international law.
o The judge, Ungoed-Thomas J, said:
 What the statute itself enacts cannot be unlawful, because what the
statute says and provides is itself the law, and the highest form of
law that is known to this country. It is the law which prevails over
every other form of law, and it is not for the court to say that a
parliamentary enactment, the highest law in this country, is
illegal.
 Parliament’s powers are also unlimited in terms of territorial jurisdiction
o In Mortensen v Peters (1906) 14 SLT 227, Mortenson (the captain of a
Norwegian fishing trawler) was charged with illegal fishing because of a
Scottish bye-law in a prohibited area (although it was in international
waters, i.e. outside the limit of Scottish waters recognised in international
law).
o His defence was that the Act was ‘unconstitutional’ because it
breached accepted international law standards and therefore had no
legal effect.
o The court dismissed this argument and thus demonstrated that the
courts will recognise and enforce Acts of Parliament that apply
outside the territory of the UK.
 ‘Parliamentary supremacy means…that Parliament can legislate for all persons
and all places. If it enacts that smoking in the streets of Paris is an offence, then it
is an offence.’ - Jennings
 ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate
contrary to fundamental principles of human rights’ (as per Lord Hoffmann
in R v Secretary of State for the Home Department ex parte Simms [2000] 2
AC 115).

2. No one can challenge the validity of an Act of Parliament

The ‘enrolled Bill rule’(The Enrolled Bill rule requires that, if a Bill has passed through
the House of Commons and House of Lords and received royal assent, the courts will not
enquire into what happened before or during the legislative process.)

 in Dr Bonham’s Case (1610) Chief Justice Coke opined that the courts could
intervene if Parliament enacted outrageous legislation.
 ‘enrolled Bill’ rule - the courts will not ‘look behind’ Acts of Parliament but
rather will simply apply any legislation which has passed both Houses and
received Royal Assent, regardless of whether proper parliamentary
procedure was followed.
 Lord Campbell in Edinburgh and Dalkeith Railway
Company v Wauchope (1842):
o [A]ll that a court of justice can look to is the parliamentary roll; they see
that an Act passed both Houses of Parliament, and that it has received
Royal Assent, and no court of justice can inquire into the manner in
which it was introduced into Parliament, what was done previously to
its being introduced, or what passed in Parliament during the various
stages of its progress through both Houses of Parliament.
 This approach was affirmed by Lord Reid in British Railways
Board v Pickin [1974] AC 765.

3. Parliament cannot bind its successors nor be bound by its predecessors

 to preserve the sovereignty of Parliament, its freedom to legislate must not be

limited or hampered by anything previous Parliaments have done.
 any legislative provision or statute may be expressly repealed by Parliament

Doctrine of implied repeal

 On occasion, the provisions of two Acts of Parliament conflict, thus raising the
question of which Act should take precedence.
 the courts have decided that the provisions of the later Act prevail and thus
‘impliedly repeal’ the earlier Act to the extent of the conflict.
 Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733
o conflict between a provision in a 1919 Act of Parliament and a 1925 Act.
o court ruled that the later Act applied, and thereby impliedly
repealed the conflicting earlier statutory provision.
 Ellen Street Estates v Minister of Health [1934] 1 KB 590
o about the amount of compensation to be paid on the compulsory
purchase of land. In the words of Lord Justice Maugham:
The Legislature cannot, according to our constitution, bind itself as to the form of
subsequent legislation, and it is impossible for Parliament to enact that in a subsequent
statute dealing with the same subject-matter there can be no implied repeal. If in a
subsequent Act Parliament chooses to make it plain that the earlier statute is
being to some extent repealed, effect must be given to that intention just because
it is the will of the Legislature. such that fundamental legislation might be
immune from implied repeal (see [106]-[107] of that judgment).
 The appellants argued that the 1925 Act did not expressly repeal the 1919 Act
and, moreover, the doctrine of implied repeal should not be recognised. It thereby
followed that the 1925 Act was invalid and never had statutory force.
‘Constitutional’ statutes
 The obiter dicta of Laws LJ in Thoburn v Sunderland City Council [2002]
EWHC 195 (Admin) – often referred to as the ‘metric martyrs’ case
o distinction between ‘ordinary’ and ‘constitutional’ statutes.
o the (judge-made) doctrine of implied repeal would not apply to
certain statutes of constitutional importance. Although these pieces
of legislation could be repealed, it would be for Parliament to do so
expressly.
 Lord Wilberforce many years earlier had made a similar point:
In strict law there may be no difference in status…as between one Act of Parliament and
another, but I confess to some reluctance in holding that an Act of such constitutional
significance as the Union with Ireland Act is subject to the doctrine of implied repeal.
 who decides whether a particular statute is a ‘constitutional’ statute –
should this be the courts or Parliament?
o Often, as with the examples cited by Laws LJ – which included the
Magna Carta, the Bill of Rights 1689, the Acts of Union, the Reform
Acts, the European Communities Act 1972, the Scotland Act 1998, the
Government of Wales Act 1998 and the Human Rights Act 1998 –
there is little doubt that these will be universally considered to be of
constitutional significance. But what of legislation which is less obviously
‘constitutional’ in nature but might have significant impact?
 Although Laws LJ’s ‘constitutional’ and ‘ordinary’ statutes have not been
explicitly approved by a higher court, a recent reference was made by the UK
Supreme Court to ‘constitutional instruments’ in the HS2 case – R (HS2 Action
Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 (para.207).

4.1.9 The Human Rights Act 1998 and parliamentary sovereignty

 domesticates the (majority of) the rights in the European Convention for the
Protection of Human Rights and Fundamental Freedoms (ECHR).
 aims to strike a balance between preserving the legislative supremacy of
Parliament and the protection of fundamental rights.
o As Judge LJ explained, ‘The Act is carefully drafted to ensure that the court
cannot and must not strike down or dispense with any single item of
primary legislation’ (Re K (a child) [2001] Fam 377 (para.121)).
o it differs from the practice in many other countries where courts do have
power to strike down legislation which is found to be incompatible with
fundamental rights.
 Section 3 places an obligation on the courts to read and give effect to all
legislation (both primary and secondary) ‘in so far as it is possible to do
so…in a way which is compatible with the Convention rights’.
 where this is not possible, the High Court and superior courts may take the
‘exceptional course’ (Lord Steyn’s words) of resorting to s.4 and making a
declaration of incompatibility.
o s.4(6), such a declaration does not affect the ‘validity, continuing
operation or enforcement of the provision in respect of which it is
 given; and…is not binding on the parties to the proceedings in which it is
made’.
o it is, in the words of Lady Hale, to ‘warn government and Parliament
that [in the view of the courts] the United Kingdom is in breach of its
international obligations. It is then for them to decide what, if
anything, to do about it’ (Baroness Hale in R (Animal Defenders
International) v Secretary of State for Culture, Media and
Sport [2008] UKHL 15).
 Thus, the legislative supremacy of Parliament is left largely intact by the
Human Rights Act 1998.

4.1.10 The impact of European Union membership on parliamentary sovereignty

 to give full effect to the law of the European Community (now Union), it was
necessary to enact primary legislation. Signing a treaty would not in itself be
sufficient, hence the enactment of the European Communities Act 1972.

What is the European Union (or EU)?

 The EU is a unique international organization with 27 Member States . The
economic and political union between these countries created by the EU
includes, at its core, an internal market to ensure free movement of goods,
people, services and capital, which are known as the ‘four fundamental
freedoms’.

The primacy of EU law

 the EU (through its institutions) exercises conferred powers and competences –
that is, powers and competences which have been transferred to the EU by the
Member States via the Treaties.
 In Van Gend en Loos in 1963 the ECJ stated:
…the Community constitutes a new legal order of international law for the benefit
of which the states have limited their sovereign rights, albeit within limited fields,
and the subjects of which comprise not only Member States but also their
nationals.
 the primacy of EU law was reaffirmed in Costa v ENEL.
o In joining the Community the Member States had limited their
sovereignty in that their national (or domestic courts) were now
bound to apply EU law in preference to domestic legislation where
there was a conflict between the two.
 In 1970 in Internationale Handelsgesellschaft the ECJ went even further and
stated that:
…the law stemming from the Treaty, an independent source of law, cannot
because of its very nature be overridden by rules of national law, however
framed…without the legal basis of the Community itself being called into
question. (para.1134)
 even secondary EU law (a regulation) was deemed to be a higher form of
law than the constitution of a Member State.
 Simmenthal
o Member States were not free to enact future measures which were
inconsistent with their EU obligations.
UK membership of the EU
 The key piece of legislation was the European Communities Act 1972 (ECA
1972). It was by virtue of this domestic statute that the UK became a
Member State of the EU in 1973.
o in Thoburn it was referred to as one of the ‘constitutional’ statutes
that would not be subject to implied repeal.
o In the more recent HS2 case it was described as a ‘constitutional
instrument’ and in Miller as having a ‘constitutional character’.
 the ECA 1972 gave effect, within domestic law, to those provisions of EU law
which were intended to have direct effect within Member States.
o By virtue of s.2(4), this applied to both existing and future legislation.
 through membership of the European Union the Westminster Parliament
was no longer the only body with the ability to make law for the UK.

Key provisions
Section 2(1) ECA 1972
All such rights, powers, liabilities, obligations and restrictions from time to time created
or arising by or under the Treaties, and all such remedies and procedures from time to
time provided for by or under the Treaties, as in accordance with the Treaties are
without further enactment to be given legal effect or used in the United Kingdom shall
be recognised and available in law, and be enforced, allowed and followed accordingly;
and the expression and similar expressions shall be read as referring to one to which
this subsection applies.
 Section 2 of the ECA 1972 provides that EU law shall have direct
applicability in the UK. It makes provision for the legal effect of obligations
arising by or under the Treaties in UK law.

Section 2(4) ECA 1972

…any enactment passed or to be passed, other than one contained in this part of this
Act, shall be construed and have effect subject to the foregoing provisions of this
section.
 Section 2(4) provides for the primacy of EU law, without expressly stating
that the law of the European Union is supreme. It requires future
parliamentary enactments to be construed and have effect subject to ECA 1972
(including s.2(1)).
 So, essentially, substantive EU rights prevail over the express terms of any
domestic law, including primary legislation, made or passed after the
coming into force of ECA 1972, even in the face of plain inconsistency between
them.

The approach of the UK courts

 What happens when even a purposive or teleological interpretation of the
(domestic) legislation cannot avoid a clear conflict with European Union
law?
 This issue arose for the first time in the now infamous series of litigation
in Factortame.
 o there was an unavoidable inconsistency, an irreconcilable difference
between a domestic statute and provisions of Community law, which no
creative judicial interpretation could resolve.
o The conflict was between the Merchant Shipping Act 1988 (an Act of
the Westminster Parliament) and provisions of the EEC Treaty.
o The facts were as follows: Factortame was a British company owned and
managed by Spanish nationals; it owned fishing vessels which were
registered as British under the Merchant Shipping Act 1984 for the
purposes of fishing under the UK’s quota of the EC Common Fisheries
Policy. In order to keep the British quota for genuinely British fishermen,
and to prevent so-called ‘quota hopping’, Parliament passed the Merchant
Shipping Act 1988 (and the Merchant Shipping (Registration of Fishing
Vessels Regulations)). These defined the term ‘British fishing vessels’ in a
restrictive manner requiring ships fishing under the quota to be British
owned and controlled and required that fishing vessels be re-registered.
Factortame could no longer comply with the new requirement of
predominantly British ownership and so sought a judicial review of the
Act and related regulations as contrary to the EEC Treaty.
o The Divisional Court made a reference (Factortame (No 1)) to the
ECJ for a preliminary ruling on the issues of substantive Community
law raised by the proceedings and ordered as interim relief that the
application, as regards the applicants, of the Merchant Shipping Act
1984 and Regulations should be suspended (or disapplied).
o This order was set aside by the Court of Appeal on the grounds that the
Divisional Court did not have the power to suspend an Act of Parliament.
o Upon appeal to the House of Lords it was held that under national law, the
courts had no jurisdiction to grant interim relief disapplying the Act in
such a case. The House of Lords sought a preliminary ruling from the ECJ
on the question of whether, as a matter of Community law, the interim
relief could indeed be granted.
o The ECJ ruled that a national court must be able to grant interim
relief even if this involved setting aside a rule of national law (in this
instance it was s.21 of the Crown Proceedings Act 1947, which said
that no injunctions could be granted against the Crown). The ECJ said
that:
Community law must be interpreted as meaning that a national court which, in a case
before it concerning Community law, considers that the sole obstacle which precludes it
from granting interim relief is a rule of national law must set aside that rule.
 In R v Secretary of State for Transport, ex parte Factortame Ltd (No.
2) [1991] 1 AC 603 the House of Lords granted the interim relief and suspended
the operation of the Merchant Shipping Act 1984.
 Thus, the case of Factortame required the ‘setting aside’ or disapplication of
national law which was found to be inconsistent with directly applicable
Community law. When this happens the statute is rendered ‘inoperative’ in the
particular circumstances of the case – not null, void or repealed.
 Lord Bridge addressed the question of supremacy in Factortame, stating that:
If the supremacy […] of [EU] law over the national law of Member States was not always
inherent in the [EU Treaties] it was certainly well established in the jurisprudence of the
European Court of Justice long before the United Kingdom joined the [EU]. […] Under
the terms of the 1972 Act it has always been clear that it was the duty of a United
Kingdom court, when delivering final judgment, to override any rule of national law
found to be in conflict with any directly enforceable rule of [EU] law.
 Although some, most notably Sir William Wade, suggest
that Factortame brought about ‘a constitutional revolution’ as it conflicts
with the orthodox view of the legislative supremacy of Parliament, in that
the 1972 Parliament (which passed the ECA 1972) did bind a successor
Parliament (i.e. that of 1988), it can equally be argued that the ‘disapplication’
approach adopted can be reconciled with parliamentary supremacy because it
does not involve the court in any validation of Acts of Parliament.
 Another perspective can be taken from the extrajudicial writings of Sir John
Laws, which is to recognise that the ECA 1972 (specifically s.2(4)) created a ‘rule
of construction for later statutes, so that any such statute has to be read
(whatever its words) as compatible with rights accorded by European law’.
 In 2016, this was referred to by the High Court in Miller:
There is no superior form of law than primary legislation, save only where
Parliament has itself made provision to allow that to happen. The ECA 1972, which
confers precedence on EU law, is the sole example of this. (para.20)
 Miller v Secretary of State for Exiting the European Union [2017] UKSC 5
held that nothing in EU law altered the ultimate supremacy of Parliament which
could still repeal (albeit expressly not impliedly) the ECA 1972. In the words of
the Court:
…consistently with the principle of Parliamentary sovereignty, this
unprecedented state of affairs will only last so long as Parliament wishes: the
1972 Act can be repealed like any other statute. For that reason, we would not
accept that the so-called fundamental rule of recognition (ie the fundamental rule by
reference to which all other rules are validated) underlying UK laws has been varied by
the 1972 Act or would be varied by its repeal. (para.60)
 One other piece of legislation worth a brief mention is the European Union Act
2011, in particular s.18, which was described as a declaratory provision (in the
explanatory notes to the Act):
[D]irectly applicable or directly effective EU law (that is, the rights, powers, liabilities,
obligations, restrictions, remedies and procedures referred to in section 2(1) of the
European Communities Act 1972) falls to be recognised and available in law in the
United Kingdom only by virtue of that Act or where it is required to be recognised
and available in law by virtue of any other Act. This is a declaratory provision.
 This confirmed the (already firmly established) principle that, because of
the dualist system, the law of the EU has effect in the United Kingdom only
by virtue of the ECA 1972 or any other UK Act.
 As explained in a House of Commons Library Note (on retained EU Law):
The (then) Government’s intention was to affirm what was said in Thoburn: that an Act
of Parliament using express words can repeal the European Communities Act. If a
statute did so and to the extent that it did so, domestic courts would be obliged neither
to enforce EU law nor to give it primacy over other sources of UK law.
 With the advent of Brexit the European Union Act 2011 will be repealed in its
entirety.

4.1.11 Practical and political (i.e. non-legal) constraints on parliamentary

sovereignty
  In Blackburn v Attorney General [1971] EWCA Civ 7 Lord Denning said:
…in legal theory, one Parliament cannot bind another and…no Act is irreversible. But
legal theory does not always march alongside political reality…Freedom once given
cannot be taken away. Legal theory must give way to practical politics.
 there is a significant difference between what Parliament can do legally and what
it can actually do in practice.
 Consider the granting of independence to former Commonwealth countries
– the Dominions of Canada, Australia, New Zealand and South Africa and
others – via the Statute of Westminster 1931, which released the
Parliaments of those countries from being subject to British laws by giving
them their own sovereignty.
o It also provided in s.4 that no Act of the Westminster Parliament
should extend to the Dominion unless the Dominion so requested.
o In strict legal theory the Westminster Parliament could repeal s.4 of
this statute – or attempt to impliedly repeal it by legislating, for instance,
for Canada without the Dominion’s consent – but such a course of action
would be impossible due to both practical and political constraints.
o Canada and other Commonwealth countries view this Act which
granted their independence as binding and irreversible.
o These political constraints were recognised by Lord Sankey in British
Coal Corporation v The King [1935] AC 500 where he explained that ‘…
the Imperial Parliament could, as matter of abstract law, repeal or
disregard Section 4 of the Statute of Westminster. But that is theory and
has no relation to reality.’
 More recently, Baroness Hale explained, in Jackson v Attorney General, that
‘[I]n general…the constraints upon what Parliament can do are political and
diplomatic rather than constitutional’.

 At the heart of the concept of the rule of law is the idea that society is governed
by law. (Lord Reed, R (on the application of UNISON) v Lord
Chancellor [2017] UKSC 51, para.68)
 [T]he rule of law enforced by the courts is the ultimate controlling factor on
which our constitution is based (Lord Hope in Jackson).
 The concept of the rule of law is not a uniquely British principle.
o it is referred to in the preambles to the European Convention on Human
Rights (ECHR), which makes reference to the rule of law being part of the
common heritage of the signatory states; the Universal Declaration of
Human Rights, which pronounces that human rights should be protected
by the rule of law; and the Treaty on the European Union (TEU).