Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590, Court of Appeal PDF

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Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590, Court of Appeal

Facts Litham purchased a sublease on property in Ellen Street and Berners Street in Stepney. At the time, he was not aware that this area was subject to a clearance order under the Housing Act 1921 intended to remove poor-quality housing. On the assumption that he would be compensated for the loss incurred, Litham made no objection upon becoming aware of the order. However, the arbitrator concluded ‘some five or six years later’ (Scrutton LJ, at 594) that he was owed no compensation under the Acquisition of Land (Assessment of Compensation) Act 1919. Given the delays, the local authority sought a fresh order under the Housing Act 1930, an inquiry followed, and the application was then approved by the Minister (see 590–1). Litham passed his interest to Ellen Street Estates. Ellen Street Estates contested the attempt to go ahead with the compulsory purchase on two grounds: first, that the orde was out of time and ineffective because it had not been enforced, and that no further order could be made on the same houses (at 594–5); and second, that because the 1919 Act contained provisions regarding compensation that had to be followed by all subsequent Acts, changes made to the scheme in the Housing Act 1930 must be invalid (at 595–6). The decision on this second ground exemplifies the principle of parliamentary sovereignty that one parliament cannot legally bind another.

Decision Scrutton LJ dealt with the first line of argument in very brief terms (at 395–6). He then moved on to the second argument, although again he was unconvinced by this, observing that it ‘seems to me even more impossible’ than the first (at 595). The contention that Parliament cannot, by express or implied repeal, change the law derived from an earlier Act of Parliament ‘is absolutely contrary to the constitutional position’ in the United Kingdom (at 595). Maugham LJ elaborated further (at 597) that:

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.

Comment The case raises the question of whether a previous Parliament can bind a future Parliament’s actions by requiring that the future Parliament will legislate according to a certain form of words (for example express repeal rather than implied repeal) or in a particular manner (that is, following a specified procedure). On its face, there could not be any question of a previous parliament binding a future one because this is manifestly at odds with Dicey’s view that Parliament cannot legally bind its successors (see Dicey, Introduction to the Study of the Law of the Constitution, 8th edn, Indianapolis, IN: Liberty Fund, 1915, pp. 21–3). Further elaboration of this foundational principle can be found in the seminal article by Wade (1955) 13(2) CLJ 172 (see, for example, 176, 180, 184). Jennings offered an alternative approach, based on Trethowan [1932] AC 526 (see Jennings, The Law and the Constitution, summarized in Wade, at 177–9), that Parliament can bind its successors to produce primary legislation in certain expected forms and by particular processes (that is, the ordinary law-making process anticipated by the common law, or that contained in the Parliament Act 1911—see Wade, at 178–9). Wade (at 193–4) contends that the Parliament Acts 1911 and 1949 create only delegated legislation (see the claimants’ unsuccessful argument in Jackson at the Court of Appeal, as noted in Zhou (2013) 129 LQR 610, 622–3; see also Weill [2012] Public Law 105, 109–12)—a point of view manifestly contradicted by the House of Lords’ ruling half a century later in Jackson [2005] UKHL 56 (see Lord Steyn, at [91–93]; cf. Zhou, at 623–4). While Wade (at 184) may have been correct to say in 1955 that Jennings’ propositions were ‘unsupported by authority’, Jackson indicates that the courts may now be willing to reconcile Jennings’ approach with the doctrine (see Zhou, at 625; Weill, at 107). Space precludes a more comprehensive treatment of the manner-and-form debate (but see the AG for New South Wales v Trethowan case note). In short, it says that the United Kingdom’s constitutional arrangements appear to have transitioned from a traditional Diceyan model of unlimited parliamentary sovereignty to become a modified version under which, in a qualified way, a type of manner-and-form

constraint can be imposed on Parliament’s law-making activities. We can thus see the judgments in Ellen Street Estates and Jackson as offering two very different visions o the nature of Parliament’s sovereignty.

Wider Questions It should be noted that the Parliament Acts, seen through modern eyes, have produced a relatively small change to the law-making process, inasmuch as they are not regularly invoked. While they may diminish the ability of the Lords to oppose the Commons, other considerations, such as the Salisbury Convention (that the elected government of the day is entitled to have its manifesto legislation passed by the Lords), also indicate the supremacy of the Commons over the Lords (see Weill, at 119–20, 124–6). At the same time, the nature of the manner-and-form consequences endorsed by Jackson are altogether different to those sought in Ellen Street Estates. Whereas Jackson approved an additional, easier route for making legislation, Ellen Street Estates prevented a more stringent, constraining approach. Thus, when thinking abou current debates around, for example, a British Bill of Rights, the precedent established by Jackson does not appear to guarantee that such a measure could be entrenched— because entrenchment entails positive protections akin to those rejected in Ellen Stree Estates. Laws LJ’s observation in Thoburn [2002] EWHC 195 (Admin), at [63], that constitutional statutes are not subject to implied repeal is certainly also a relevant manner-and-form consideration—particularly if we are concerned with a document purporting to protect fundamental rights. Similarly, we cannot ignore the acknowledgement of the Divisional Court in Miller [2016] EWHC 2768, at [88], that the European Communities Act 1972 is a constitutional statute not subject to implied repeal or the possible contrast with the Supreme Court on this point (Miller [2017] UKSC 5, [67]). What implications for the ongoing validity of the traditional Diceyan version of parliamentary sovereignty, as argued for in Ellen Street Estates, do the rulings in Jackson and Miller have? Is it appropriate to think of Parliament as being unable to bind its successors?...