WS 5 - Supremacy - a. The enrolled bill rule • Parliament can make any law whatsoever and no PDF

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Summary

a. The enrolled bill rule
• Parliament can make any law whatsoever and no body or court of law can question an Act of Parliament
• L Reid in Mdazimbamuto v Lardner Burke
b. The implied repeal rule
• No Parliament can bind either itself or its successors
c. Extraterritor...

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WS 5 - Supremacy Reading Doherty, Chapter 7 & 8.

PART 1 Q1. What is the traditional view of supremacy of Parliament? Explain and illustrate; a.  

b. 

c. 

The enrolled bill rule Parliament can make any law whatsoever and no body or court of law can question an Act of Parliament L Reid in Mdazimbamuto v Lardner Burke The implied repeal rule No Parliament can bind either itself or its successors Extraterritorial effect There is no limit to its territorial extent Can make laws for anywhere in the country

 

The law applies to the teretory of the UK E.g. smoking in public places is prohibited in the UK. The UK citizen travels to Germany and smoke there he won't be charged as why the police of Germany



Money laundering has extraterritorial effect

Q2. This is a good exercise to stretch you on reading law reports and handling technical legal vocabulary – part of the process of you becoming a lawyer. It is not easy, but there are only three pages to read. Read the extracts from British Railways Board v Pickin [1974] AC 765 below. Identify three key points about the case that you would use to explain it (and its significance) to a non-law audience. You will work in small groups in class to prepare this basic explanation and present it to the rest of the workshop group. 3 key points: a.

The courts have no power to examine proceedings in Parliament to determine whether the passing of an Act, public or private, had been obtained by irregularity or fraud.

b.

The supremacy of Parliament cannot be disregarded by virtue of the law of God or the law or the law of nature or natural justice.

c.

All that a court of justice can look to is the parliamentary roll i.e. recordings

the court can't judge the legality of the act either public or private

PART 2

Art 50 will trigger the negotiations during 2 years until the UK and the EU will have an agreement on hot the UK will leave. 1972 Act is Valid, therefore, it will be up to Parliament after 2 year to decide whether the UK leaves or not. Note – questions on the supremacy of Parliament in relation to the EU are obviously overshadowed by the EU referendum result. We will discuss the implications of this, but the relevance of questions 4-6 remain. The UK is still a part of the EU. The likeliest date for Brexit is 2019. It is possible that the new relationship with the EU will be similar to e.g. Norway, where the supremacy of EU law still applies. Q3. Do the Acts of Union limit Parliament? The Act of Union with Scotland 1707 has the fundamental constitutional importance , therefore, it can not be amended or repealed using the same procedure as a standard Act of Parliament. McCormick v Lord Advocate

Lord President indicated that parliamentary sovereignty was an English, rather then a Scottisch, constituional doctrine the 1707 Act provided for amendment or repeal of certain sections by the Westminster Parliament, but not of all, and thus it is unclear how, if at all, those reserved sections could be amended or repealed.

Q4. Outline how the European Court of Justice views the supremacy of EU law. 

There is one major issue How to ditinguish the limits where the EU can legislate EU law vs National law o EU law will prevail but only if the EU has the mandate to legislate on such matter o Otherwise national law prevail Costa v. ENEL (1964) ‘… the member-States, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves.’ Key principle of the EU: EU law is over the domestic law of the state

o 





Q5. How does EU law become part of UK law?

  

the Treaty of Rome in 1972 (Treaty on the Functioning of the European Union, TFEU Treaty on European Union (TEU, or the ‘Maastricht Treaty’) EU Charter of Fundamental Rights Regulations and directive are to be used by the UK court from the court of justice. Directives go through the national parliaments!

Q6. Explain the significance of Macarthys v Smith and Factortame.  

Factortame Merchant Shipping Act 1988  Fishing quotes in the seas of the UK 2 conditions

a. Your business has to be registered in the UK b. At least 75% of the shareholders in your company have to be British VS    

 



EU rules prohibiting discrimination on grounds of nationality No limits to work in the EU zone Lord Bridge: ‘Under the terms of the Act of 1972 it has always been clear that it is the duty of a UK court, to override any rule of national law found to be in direct conflict with any directly enforceable rule of EU law.’  Not judicial revolution, it's evolution  Supremacy of the EU law over the domestic law of the state Outcome: Disapplied Merchant Shipping Act 1988  The court decided to ignore the AofP,  but did not [could not] declare it void. HofL ruled over the Act of P (The Enrolled Bill rule)

Q7. Does the judgment of the House of Lords in Jackson v Attorney General show that Parliament is no longer supreme?

   

 

Jackson v. Attorney General [2005] UKHL 56 Used to be countryside alliance S1 of the HA 2004 was challenged Obiter dictum:  Lord Steyn – supremacy ‘still the general principle of our constitution’.  Lord Hope – ‘Our constitution is dominated by sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute’. Parliamentary supremacy is a common law. Generally courts said the Parliament supreme, it is judge's rule that they won't do a thing

Learning outcomes By the end of this workshop you should be able to; 

Demonstrate your group-working skills, presentational skills and ability to handle primary legal sources.

  

Show your understanding of the traditional view of supremacy of Parliament. Outline and assess challenges to the traditional view of supremacy Explain and assess the effects of EU membership on supremacy

Example assessment For information - Last year’s exam work question was; “It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid.”

Madzimbamuto v Lardner-Burke [1969] 1 AC 645, per Lord Reid. Discuss whether there any circumstances where the courts could hold that an Act of Parliament is invalid.

[HOUSE OF LORDS] [1974] A.C. 765

PICKIN v. BRITISH RAILWAYS BOARD By section 259 of a private Act of Parliament of 1836 setting up a railway line it was provided that, if a line should be abandoned, the lands acquired for the track should vest in the owners for the time being of the adjoining lands. The section was incorporated in another private Act of Parliament of 1845 under which further lands were acquired for a branch line. Subsequently the lines became vested in the British Railways Board, who promoted an unopposed Bill which became the British Railways Act 1968, a private Act. The effect of section 18 of the Act of 1968 was to cancel the effect of section 259 of the Act of 1836 and to vest in the board the lands over which the abandoned track of lines, one of which was that laid under the Act of 1845, passed. The plaintiff, who had purchased from the owner of a piece of land adjoining that track all his estate and interest in the railway land and the track, brought an action against the board claiming that by virtue of section 259 he was the owner of that land to mid-track. The board claimed that under section 18 of the Act of 1968 the land had vested in the board and at the claim was invalid. By his reply the plaintiff pleaded in paragraphs 3 and 4 that the board had misled Parliament by means of a false recital in the preamble to the Act of 1968 in reference to the deposit of requisite documents, and in obtaining the passage of the Bill as unopposed; and that the board could not rely on section 18 which was ineffective to deprive him of his title. On appeal to the House of Lords:Held, allowing the appeal, that the function of the court was to consider and apply the enactments of Parliament, and accordingly, in the course of litigation, it was not lawful to impugn the validity of a statute by seeking to establish that Parliament, in passing it, was misled by fraud or otherwise, nor might a litigant seek to establish a claim in equity by showing that the other party, by fraudulently misleading Parliament had inflicted damage on him any investigation into the manner in which Parliament had exercised its function would or might result in an adjudication by the courts, bringing about a conflict with Parliament. LORD REID. My Lords, our railway system was built up piecemeal during the 19th century. Generally promoters obtained from Parliament private Acts authorising comparatively short stretches of railway and giving compulsory powers to acquire the necessary land. Before 1845 there was no uniformity in the provisions of these Acts but many contained provisions to the effect that if the proposed railway was abandoned or discontinued the land acquired for it would revert to the owners for the time being of adjoining land. If the land on opposite sides of the railway had different owners, each would get half of the railway land between their properties. The [British Railway Board’s] title to a substantial amount of their railway land flows from these old pre-1845 Acts. When it became evident that numerous stretches of railway would have to be closed down, they realised that some of these old reverter provisions would take effect unless they obtained new rights from Parliament. So they promoted a Bill which, became the British Railways Act 1968 Section 18 of that Act provides: "(1) As from the passing of this Act, the provisions to which this section applies shall not apply to any lands vested in the [British Railway Board]. (2) This section applies to any provision in an enactment to the effect that, if at any time after the coming into force of that provision a railway shall be abandoned or given up, … the lands taken for the purposes of such railway shall vest in the owners for the time being of the adjoining lands"

For reasons which will appear later it would not be proper to make any decision as to the proper construction of that section. But I can say that at first sight it appears to take away without compensation all rights of adjoining owners to a reversion of land to them on the closing down of any part of our railway system. The respondent is interested in the preservation of railways and in order to be in a position to test the appellants' right in court he took advantage of the closing of the Clevedon-Yatton branch line in Somerset, and on October 20, 1969, purchased for 10 shillings from the owner of lands adjoining the railway [any property rights in the British Railways Board land]. The respondent's ground of action is not easy to state concisely. He appears to allege that in obtaining the enactment of section 18 of the Act of 1968 in their favour they fraudulently concealed certain matters from Parliament and its officers and thereby misled Parliament into granting right to them … he says that section 18 confers a benefit on the appellants and that if he can prove that Parliament was fraudulently misled into enacting this benefit the court can and should disregard the section. The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution, but a detailed argument has been submitted to your Lordships and I must deal with it. I must make it plain that there has been no attempt to question the general supremacy of Parliament. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete. The respondent's contention is that there is a difference between a public and a private Act. There are of course great differences between the methods and procedures followed in dealing with public and private Bills, and there may be some differences in the methods of construing their provisions. But the respondent argues for a much more fundamental difference. There is little in modern authority that he can rely on.

In my judgment the law is erectly stated by Lord Campbell in Edinburgh and Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & F. 710; 1 Bell 252. Mr. Wauchope claimed certain wayleaves. The matter was dealt with in a private Act. He appears to have maintained in the Court of Session that the provisions of that Act should not be applied because it had been passed without his heaving had notice as required by Standing Orders. This contention was abandoned in this House. Lord Brougham and Lord Cottenham said that want of notice was no ground for holding that the Act did not apply. Lord Campbell based his opinion on more general grounds. He said, "My Lords, I think it right to say a word or two before I sit down, upon the point that has been raised with regard to an Act of Parliament being held inoperative by a court of justice because the forms, in respect of an Act of Parliament, have not been complied with … ; all that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the 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. I therefore trust that no such inquiry will hereafter be entered into in Scotland, and that due effect will be given to every Act of Parliament, both private as well as public, upon the just construction which appears to arise upon it."

No doubt this was obiter but, so far as I am aware, no one since 1842 has doubted that it is a correct statement of the constitutional position. The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its Standing Orders perform these functions. Any attempt to prove that they were misled by fraud or otherwise would necessarily involve an inquiry into the manner in which they had perfumed their functions in dealing with the Bill which became the British Railways Act 1968.

In whatever form the respondent's case is pleaded he must prove not only that the appellants acted fraudulently but also that their fraud caused damage to him by causing the enactment of section 18. He could not prove that without an examination of the manner in which the officers of Parliament dealt with the matter. So the court would, or at least might, have to adjudicate upon that. For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, and I would only support it if compelled to do so by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation. The respondent is entitled to argue that section 18 should be construed in a way favorable to him and for that reason I have refrained from pronouncing on that matter. But he is not entitled to go behind the Act to show that section 18 should not be enforced. Nor is he entitled to examine proceedings in Parliament in order to show that the appellants by fraudulently misleading Parliament caused him loss....