5

According to some "extrajudicial" comments by justices in R (Jackson) v Attorney General , e.g.:

Lord Hope followed on from Lord Steyn

Parliamentary sovereignty is no longer, if it ever was, absolute ... It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament ... is being qualified ... The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.

Following Jackson have there been any cases in which UK courts have deemed an act or decision of Parliament unconstitutional? (Yes, I know there's no written/codified constitution in the UK.)

  • One thing is that the courts find that a law is unconstitutional and a very different one that a result of this the Parliament (or individual MPs) are sued on account of this. What are you asking about? – SJuan76 Oct 23 at 8:09
  • @SJuan76: the first. I don't mean that MPs be held personally accountable for such acts. It would a curious situation if the latter can happen without the former happening. Maybe I'm missing some way that can happen though. – Fizz Oct 23 at 8:10
7

No; the courts have no standing to declare an Act of Parliament unconstitutional. The conventional wisdom is that this is not possible, Hope's remarks notwithstanding. This was established in Pickin v British Railway Board. Further explanation in Erskine May's page on the case, which summarises the principle as:

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.

I suppose Lord Hope's comments leave open the possibility of a court attempting to review that situation in the future, but under the current understanding I don't think such a thing can occur.

Edit on pjc50's suggestion:

Factortame and Thoburn are possibly relevant cases which hold that there are particular pieces of UK legislation that cannot be repealed by implication. This is primarily that legislation which is enacted to comply with EU law, but also extends to other constitutional legislation like Magna Carta, the Bill of Rights, Human Rights Act and so on. The principle means that such law cannot be repealed through the enactment of further legislation that contradicts them; such legislation would be subject to ordered to be disapplied by the courts. This principle does not prevent Parliament from passing an enactment that specifically alters or repeals a prior Act in order to achieve whatever it is that they're wanting to do.

By way of example; The European Communities Act is the UK legislation that gives EU law the force of UK law. If some EU law says "X must not be done", a piece of UK law that says "The Prime Minister must do X" would probably be disapplied. However, Parliament could pass a different piece of UK law that said "The European Communities act is amended to ignore the obligation under EU law that X must not be done, and the Prime Minister must do X". That would (by my understanding), not be subject to such a ruling by the court.

Such a ruling by the courts might be considered to be a ruling of unconstitutionality - I hadn't considered it that way. It seems to me instead to be a matter of the court interpreting exactly what the law is; the Merchant Shipping Act was not intended to contradict EU law, it was, in effect, simply a mistake of drafting that the Court's ruled was ineffectual due to the primacy of EU law. Note that the Act in scope for Factortame was not in effect repealed by the decision; just that the relevant provisions (and not the rest of the Act) were "disapplied", and the Secretary of State barred from taking any action to enforce them:

further order herein the operation of Part II of the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988 be disapplied and the Secretary of State be restrained from enforcing the same in respect of any of the applicants and any vessel now owned (in whole or in part) managed operated or chartered by any of them so as to enable registration of any such vessel under the Merchant Shipping Act 1894 and/or the Sea Fishing Boats (Scotland) Act 1886 to continue in being

However, I am many things, but a constitutional lawyer is not one of them.

  • +1 but the comments from Erskine May seem to apply mainly to procedural matters. I'm not sure they would apply to a matter of principle, e.g. if Parliament decided to abolish some human rights. – Fizz Oct 23 at 8:15
  • 2
    I think this needs to address Factortame as well. – pjc50 Oct 23 at 8:24
  • @Fizz Human Rights exist in UK law only as a consequence of enactments passed by Parliament; even those declared in the Universal Declaration of Human Rights only exist due to legislation specifically bringing them into force here. I don't see that a court could possibly rule that a right existed by virtue of some outside concept that had the force of UK law. The closest one could see would be if they ruled that some piece of UK law granting Human Rights could not be repealed; and that definitely falls foul of the principles outlined in the Erskine May and Pickin pages. – Dan Scally Oct 23 at 8:27
  • @pjc50 Good suggestion. Done; I hope to your satisfaction! – Dan Scally Oct 23 at 8:54
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    @DanScally: There's little international law, but the parts about human rights are the strongest. The express point of the UHDR not being a Treaty is that the rights are inviolable. They do not exist because of a treaty or national law. UK laws merely codify them. UK judges will be familiar with the Nuremberg Trials, where this was a cornerstone of the prosecution. – MSalters Oct 23 at 16:26

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