LECTURE TWO "THE NEGATIVE ASPECT OF PARLIAMENTARY SOVEREIGNTY AND FORMULATING THE DOCTRINE"
We saw, in the first lecture, just how wide-ranging the legislative powers of Parliament are and this supports the positive leg of the doctrine. However, a catalogue of positive instances can only show that the powers of Parliament are extremely wide (and that is hardly in question !) - it cannot show that there are no limits upon these powers. This point is well put by Professor Calvert: "No one doubts that the powers of the UK Parliament are extremely wide... but that is not what is in issue. What is in issue is whether those powers are unlimited and one [does not] demonstrate this by pointing to a wide range of legislative objects ..."
"Great is the force of the negative instance" wrote Bacon many years ago and Karl Popper has built an entire philosophy of science around the thesis that one cannot establish the truth of any general hypothesis by a rehearsal of confirming instances, however many and that, therefore, the appropriate scientific method is conscientiously to seek instances which refute the general hypothesis. By way of illustration, I refer to the problem of induction. Is it not possible conclusively to prove a universal proposition such as "All swans are white". The problem is that no matter how many white swans are adduced in support, all that is proved is that all swans adduced are white and not the universal proposition that all swans whatsoever are white. But, and this is Popper's point, whereas one cannot conclusively prove a universal proposition one can conclusively refute such a proposition simply by adducing one black swan - "Great is the force of the negative instance !"
This, then, is the approach which I have adopted with regard to the negative aspect of Parliamentary Sovereignty - that there is no other institution competent to legislate for Britain in competition with Parliament; and no institution with power to impose legal limits upon Parliament or to scrutinize its legislation with a view to disqualifying it as invalid or unconstitutional.
I offer a series of formulae which seek to catch the negative aspect of Parliamentary Sovereignty and I subject these to critical analysis. And what I seek to demonstrate is that there are some limitations upon Parliament, that some of these are indeed legal limitations and that it is at least an open question whether others are indeed legal limitations.
The six formulae (listed in the handout) are:
1. Courts are bound to apply Acts of Parliament and cannot pronounce upon their validity or constitutionality.
2. Courts are bound to apply Acts of Parliament enacted in proper form and cannot pronounce upon their validity or constitutionality.
3. Courts are bound to apply (properly made) Acts of Parliament, according to their meaning.
4. Parliament is omnipotent.
5. Parliament cannot bund its successors.
6. Sovereignty is "illimitable" and/or "indivisible".
Formulations 1, 2 and 3 directly concern the relationship of the legislature and the courts. The remaining formulae might appear more directly to relate to the positive aspect of Parliamentary Sovereignty but, even here, the courts are at least indirectly involved. Therefore one can accept the views of Bradley (p 59) and Heuston (p 7) that sovereignty is essentially a concept which expresses the relationship between Parliament and the courts.
But the question does arise whether we should accept that view. Clearly "sovereignty" includes the relationship of Parliament and the courts but it remains open to question whether the concept is exhausted by that relationship. There may be more to sovereignty that the relationship of the courts to the legislature and, in particular, it may embrace the relationship also of successor Parliaments. Whilst it may be interesting and relevant to consider what the courts have said and done about the relationship of successor Parliaments it must be as interesting and as relevant to consider what successor Parliaments have said and done as to the force of earlier legislation upon them and to consider to what extent, if any, successor Parliaments regard earlier legislation as a constraint upon them. These points bear particularly upon the fifth formula.
This leads on to a subtle question about the nature of law and legal obligation. If one defines law and legal obligation in terms of the possibility of a legal remedy or sanction or by reference to what the courts will take cognisance of and what orders courts will make, then the proposition that there are no legal limits on Parliament takes on an air of circularity, thus:-
1. Legal limitations are those which are justiciable in and enforceable by the courts.
2. Alleged limitations on Parliament contained either in legislation (eg Art 18, Act of Union, 1707 or S.2 Northern Ireland Constitution Act, 1973) or in the unwritten and tacit rules of the constitution (eg the constitutional doctrine of mandate whereby radically innovative legislation should be put to the electorate in a general election and win support or the suggestion that profound constitutional change such as Devolution to Scotland or Wales or accession to the European Economic Communities be subject to the opinion of the electorate by way of a referendum), not being justiciable in or enforceable by the courts are not legal limitations.
3. Therefore there are no legal limitations upon Parliament - Q.E.D.
But must we accept the equation of legality with justiciability or enforceability ? It is not clear that we must. Examples of non-justiciable or non-enforceable legal obligations can be found.
1. Labour Law
Collective agreements in labour relations are not enforceable by way of judicial process. Yet these are detailed, carefully negotiated agreements entered into by the parties - the representatives of the employees on the one side and those of the employers on the other, with the intention and expectation that both sides will adhere to their terms and treat their agreements as binding.
2. International Law
Inter-statal treaties are in a like category. States need not submit to the jurisdiction of the International Court, yet they may well regard treaty arrangements as binding upon them.
Such agreements in industrial and international relations are honoured sufficiently for one to believe that the parties consider themselves bound thereby. And is it not obvious that we should accept the tests of justiciability and enforceability rather than the circumstance that such practices are thought of, spoken of, and used by participants as giving rise to obligations ? (see H L A Hart).
(a) The law of contract provides other examples. A contract may be defective in form as, for example, not being in writing though it is one of a class for which evidence in writing is required. Now the law does not treat such defective contracts as not giving rise to obligations - it merely refuses to allow the parties to seek the aid of the courts in enforcing them. That the obligation is not thereby extinguished is demonstrated by the circumstance that monies paid under the contract cannot be recovered as, of course they would be if the contract was treated as wholly void (eg Leroux v Brown)
(b) The Gaming Act, 1845, s.18 renders gaming and wagering contracts not legally enforceable. Yet they are sufficiently honoured for considerable commercial enterprises to flourish. One explanation for the development of such enterprises is that both sides regulate their conduct in the light of agreements which they regard as binding, even though neither side could call upon the assistance of the courts for enforcement.
4 Criminal Law.
It has occasionally appeared to some judges that there is a sense of "obligation" of which the law should take cognisance, even though it may not enforce.
In Gilks  3 All E R 280 the defendant had placed bets on a horse, "Fighting Scot". The race was won by "Fighting Taffy" and "Fighting Scot" - sad to relate - was unplaced. In error the clerk paid out £106.63, thinking that the defendant had backed the winner and the defendant, knowing of the error took the money. S. 5(4) of the Theft Act, 1968:- "Where a person gets property by another's mistake, and is under an obligation to make restoration ... then to the extent of that obligation the property ... shall be regarded ... as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property ..."
The trial judge ruled that when the money passed it was money "belonging to another" and that therefore s.5(4) did not apply but if he was wrong about this then he would rule that "obligation" in s.5(4) included an obligation which was not an enforceable legal obligation. On appeal, the Court of Appeal held that the trial judge was correct to rule that at the time of passing the money was property "belonging to another" and therefore that the appellant was rightly convicted. As to the meaning of "obligation" however, the Court of Appeal disagreed with the trial judge, stating obiter that "it would be quite wrong to construe that word so as to include a moral or social obligation as distinct from a legal one".
In Hayes (1977) 64 Cr App Rep 82 (estate agent using some of the purchasers'deposits for his own purposes), however, the Court of Appeal held in respect of the meaning of "obligation" in s.5(3) "Where a person receives money from or on account of another, and is under an obligation to the other to retain and deal with ... in a particular way" that it was wrong for the trial judge to rule that there was an obligation and that it was for the jury to decide whether or not there is an obligation. But the jury can only proceed on what they as lay persons take to be an "obligation", that is on an altogether looser and wider sense of "obligation "than the strict legal sense.
This decision was not popular with leading criminal lawyers. Professor Glanville Williams (p710 1st edn) sees it as pushing the "apotheosis of the jury" further than ever before. He duly rejoices in the decision of Mainwaring (1981) 74 Cr App Rep which reverses Hayes on this point, holding that obligation means legal obligation. Predictably, Professor Smith, no conspicuous friend of the jury, also takes satisfaction from Mainwaring: "It is submitted that the formulation in Mainwaring is to be preferred". However, courts at both trial and appellate level have acknowledged a conception of "obligation" wider and looser than the strict legal sense, even if, at the present time it is the strict legal sense that is applied by the Court of Appeal to "obligation" in ss. 5(3) and (4).
5. Public Law
(a) The Education Act, 1944, s.76 imposes a duty upon local authorities to have regard to the general principle that so far as possible children are to be educated in accordance with parental wishes. This has been held to be unenforceable by aggrieved parents (Watts v Kesteven  QB 408 where it was suggested that the statutory duty could only be enforced by the Minister and not by action at law. But it remains a statutory duty for all that.
(b) Again, on occasion an Act of Parliament nationalizing an industry will lay down that the general duties are not enforceable in any court of law.
So what are we to say about legal limitations upon Parliament ? Only this - that a narrow definition of legality resting upon enforceability or justiciability is more favourable to the orthodox doctrine of Parliamentary Sovereignty that there are no legal limitation upon Parliament than is a wider definition, which allows non-enforceable and non-justiciable duties to be regarded as legal duties. Thus some limitations upon parliament, even if not enforceable or justiciable may nonetheless be properly regarded as legal limitations. That is why I say that we should regard the legality of some limitations as, at least, an open question. In particular, the question whether one Parliament can legally bind a successor Parliament turns upon the meaning attributed to "legal obligation".
Consequently we should regard with some circumspection the proposition that, as Bradley and Heuston among others put it, that "sovereignty is essentially a concept about the relationship of Parliament and the Courts". And such circumspection should carry over to the proposition that there are no legal limitations upon Parliament unless and until it is clear precisely what is meant by "legal".
Let me now turn to the easier matter of the first formulation: Courts are bound to apply Acts of Parliament and cannot pronounce on their validity or constitutionality. This proposition follows readily enough from the absence in our legal system of any written constitution and of any constitutional court to sit in judgment upon acts of parliament. The proposition is widely adopted in the literature. Keir and Lawson put it tersely enough - "All that a court of law can do with an Act of Parliament is to apply it" The weight of legal authority and precedent, too, supports the proposition. Thus in Middleton v Anderson (1842) 4 D 957, 1010 per Lord Mackenzie: "We sit here as a Court created by Parliament, the organ of Parliament and we must judge according to what appears to be the will of Parliament or resign our office. I have felt no call to any such martyrdom and shall certainly adhere to my duty of obedience to Parliament".
Similar dicta occur in many cases, English and Scottish, early and modern: In Magistrates of Dumbarton v Magistrates of Glasgow Nov 19, 1771 FC where a statute was challenged the judges held "though they could explain an act of the legislature they had no power to supply or correct it; and could even if it no other interpretation than the precise terms used naturally and positively authorised". And in Lee v Bude and Torrington Ry Co (1871) LR 6 CP 577,582, per Willes J, "If an Act of Parliament has been obtained improperly it is for the legislature to correct it by repealing it; but, so long as it exists the courts are bound to obey it". The learned judge had prefaced these remarks with the rhetorical question, "Are we to act as a regent over what is done by Parliament, with the consent of the Queen, Lords and Commons ?" And he hardly needed to add, " I deny that any such power exists".(1)
In Edinburgh and Dalkeith Ry v Wauchope (1842) 8 Cl & F 710; 8 E R 279 Lord Campbell [Quisling !] in the house of Lords said of the proposition that a court could question the validity of an Act of Parliament:"I cannot but express my surprise that such a notion should ever have prevailed. There is no foundation whatever for it. All that a Court of Justice can do is to look at the Parliamentary Roll; if from that it should appear that a Bill has passed both houses and received the Royal assent, no court of justice can enquire into the mode in which it was introduced into Parliament ... I trust, therefore, that no such inquiry will be entered into in any court in Scotland, but that the due effect will be given to every Act of Parliament, private as well as public, upon whatever appears to be the proper construction of its existing provisions".
Mortensen v Peters (1906) 8 F (J) 93, 100, per Lord Dunedin, "For us an Act of Parliament duly passed by the Lords and Commons and assented to by the King is supreme and we are bound to give effect to its terms". R v Jordan  Crim L R 483 is a clear example. It was held that parliament is supreme and that there is no power in the courts to question the validity of an act of parliament. Mr Colin Jordan had applied for a writ of habaeas corpus on the ground that the Race Relations Act, 1965 and therefore his conviction under it was invalid as being a curtailment of freedom of speech. The court regarded the application as being completely "unarguable". [Lexis joke]
Picken v B R B  2 AC 765, per Lord Reid, "... the idea that a court is entitled to disregard a provision in an Act of Parliament on any grounds must seem strange and startling to anyone with a knowledge of the history and law of our constitution ..." Lord Reid approves Lord Campbell's dictum in Edinburgh and Dalkeith Ry v Wauchope (above) and concludes: "for a century or more both Parliament and the Courts have been careful not to act so as to cause conflict between them ... the whole trend of authority for over a century is clearly against any such investigation" and Lord Simon of Glaisdale added "The courts in this country have no power to declare enacted law to be invalid". Despite the weight of all this there are three lines of argument and authority which call the first formulation into question.
1. Was Parliament born unfree ? The great Dicey had no doubt: "The ecclesiastical provisions of the Act were in the strictest sense revolutionary, for they introduced a totally new relation between the Church of Scotland and the Church of England. But these provisions were even more truly conservative, for their aim and effect was to secure for the people of Scotland the maintenance of the Church which in respect of doctrine and government they preferred, and at the same time to secure for the English people the Church which in respect of doctrine and government they preferred. The statute, moreover, made these provisions a fundamental and essential part of the Treaty. One can hardly doubt that they were meant to be immutable parts of that Treaty. Under the Act the people of Scotland guaranteed to the people of England the Maintenance of the Episcopal Church of England, whilst the people of England guaranteed to the people of Scotland the maintenance of the Presbyterian Church of Scotland" [Thoughts on the Union of England and Scotland (1920) p 247]
This question is the crux of the issue in Gibson v Lord Advocate (1975) SLT 134. Article 18 of the treaty of unions between England and Scotland contains the clause, "... no alteration be made in the laws which concern private right except for the evident utility of the subjects within Scotland". Gibson, a Scottish fisherman, claimed that an EEC regulation which allowed EEC nationals the right to fish in Scottish waters and, more significantly, the European Communities Act, 1972 which give the regulations legal effect in Britain were contrary to Article 18. He argued that the act changed the law concerning private right and that this change was manifestly not for the utility of the people of Scotland. However, Lord Keith held that laws relating to fishing in territorial waters fell into the public domain which, consistent with the Treaty could be made the same in England and Scotland and not, as Gibson maintained, part of private law subject to Article 18. But Lord Keith went further. He argued that the question whether an Act of Parliament was for the evident utility was a question of policy and not justiciable; i.e. it could not be adjudicated by the courts. Nonetheless he did allow, also obiter, that an Act of Parliament seeking to abolish the Court of Session or the Church of Scotland contrary to Article 19 could be invalid and left open the question whether the Scottish Courts could entertain that question.
However, Lord Keith's view that the "evident utility" aspect of article 18 is not justiciable runs counter to an earlier Scottish decision Laughland v Wansborough Paper Co (1921) 1 SLT 341, 345. [Bill Chamber - i.e. Outer House Lord Ordinary in vacation ?] Lord Ashmore proceeded throughout on the basis that "evident utility" aspect of Art 18 was justiciable at the instance of an ordinary litigant but reached the conclusion that the change in law complained of was not against the evident utility: "I am of the opinion that no sufficient ground has been shown by the complainer to justify the conclusion that the procedure embodied in the new sub-rule is not for the evident utility of the subjects within Scotland and is not calculated on the whole to meet the convenience of the people at both ends of the island". In any event, Gibson, even on its own terms, is something of a double edged authority, denying justiciability in the instance of Art 18 but affirming it, albeit obiter, in respect of Art 19. And Laughland casts some doubt on whether Gibson is correct in its denial of justiciability.
McCormick v Lord Advocate 1953 SC 396 is a highly significant case and it throws considerable light on the issues of justiciability and the alleged limitations upon law making by Parliament inherent in the Acts of Union. John McCormick, Rector [Ustinov and the goat story ?] of Glasgow University and a principal member of the Scottish national party for many years, together with a Glasgow University Student named Hamilton challenged the Queen's title as "Elizabeth the Second" on the grounds that this was contrary to historical fact and contrary to Art 1 of the Treaty of Union. Actually Art 1 is a conspicuously poor basis for challenging the validity of the Royal Title Act, 1953. That Article provides:"That the two kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and for ever after be united into one kingdom by the name of Great Britain and that the ensigns armorial of the said United Kingdom be such as Her Majesty shall appoint and the crosses of St Andrew and St George be conjoined in such manner as Her Majesty shall think fit; and used in all flags, banners, standards, and ensigns both at sea and on land".
Nonetheless because the reign of Elizabeth the first of England,1558-1603, had culminated in the union of the Crowns with the accession to the throne of James VI of Scots and I of England there had never been a Queen of Scots called Elizabeth and so it followed , as a matter of simple arithmetic, that there could not now be an Elizabeth II of Scots.
At first instance, the Lord Ordinary, Lord Guthrie, dismissed the pursuer's claim on the basis that an Act of Parliament could not be challenged as being in breach of the Treaty of Union or on any other ground. In the Inner House of the Court of Session, the First Division dismissed the appeal not so much on the basis that Acts of Parliament could not be challenged as contrary to the treaty but first because there was no title or interest to sue (what is sometimes in England called locus standi or standing) and, secondly, that the royal numeral was not contrary to the Treaty. [NB at this point some years ago a student walked out ...] Lord President Cooper stated "The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish Constitutional Law... considering that the union legislation extinguished the Parliaments of Scotland and of England and replaced them with anew parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament as if all that happened in 1707 was that ... Scottish representatives were admitted to the Parliament of England. That is not what was done"
Lord Copper then developed a very important point: "...the Treaty and associated legislation ... contain some clauses which expressly reserve powers of subsequent modification; and other clauses which either contain no such power, or emphatically exclude subsequent alteration by declaration that the provision shall be fundamental and unalterable in all times coming ... I have never been able to understand how it is possible to reconcile with elementary canons of [statutory] construction, the adoption by the English constitutional theorists of the same attitude to these markedly different types of provision".
To recap, there are three type of legislative clause:
1. those expressly reserving powers of modification
2. those that are silent as to modification
3. those that emphatically exclude modification.
It is puzzling that exponents of classical doctrine of Parliamentary Sovereignty require us to construe these three types of legislation as having precisely the same meaning. In the case, the Lord Advocate (rightly or wrongly) had conceded that the Parliament of Great Britain "could not" repeal or alter such "fundamental law" and accordingly the way seems clear for judicial review of the validity of acts of the British parliament allegedly contrary to the Treaty.
But Lord Cooper further observed "assuming ... that something is alleged to have been done in breach of that fundamental law, the question remains whether such a matter is determinable as a justiciable issue in the courts of either Scotland or England, as an issue of constitutional vires would be cognisable by the Supreme Courts of the United States, or of South Africa, or of Australia. I reserve my opinion ... ". He continued, "... this at least is clear, that there is neither precedent nor authority of any kind for the view that the domestic courts of either Scotland or England have jurisdiction to determine whether a government act of the type here in controversy is or is not conform to the provisions of the Treaty ..."
Lord Russell, likewise reserved his opinion on the fundamental question whether Scottish Courts could ever have jurisdiction to hear allegations that an Act of the British Parliament contradicted fundamental provisions of the Treaty of Union. He said, "It is unnecessary to determine whether the Lord Ordinary's opinion affirming in absolute terms the unchallengeable sovereignty of the United Kingdom Parliament, and the absence of any right or power of the judicature to nullify or treat as null any Act of Parliament is or is not well founded".(2)
These cases at least open the question whether a court could declare an Act of Parliament invalid on the grounds of breach of the fundamental terms of the Treaty of Union, say, legislation seeking to abolish the Court of Session itself, or the Church of Scotland. And the great Dicey agrees: "The legislative and ultimate executive power in Scotland was transferred from the Parliament of Scotland, which had never been in theory or in fact a supreme or sovereign body, to the Parliament of Great Britain, which inherited both the tradition and, in legislation, the practice of supreme or sovereign authority" [Thoughts on The Union of England and Scotland (1920) p239].
Accordingly, "... the British Parliament ... remain[ed] in character a substantially English body" (239-240) and "... the extension to Scotland of the supreme authority of Parliament is not recorded by a single word in the Act of Union. It may well be doubted whether, either in England or in Scotland, it was clearly realised or perceived"(242-243). And it may well be that even if the Treaty and Acts of Union were intended t be immutable, only successor Parliaments and not the Courts may pronounce on that issue: "A sovereign Parliament, in short, though it cannot be logically bound to abstain from changing any given law, may, by the fact that an Act when it was passed had been declared to be unchangeable, receive a warning that it cannot be changed without grave danger to the Constitution of the country" (253)
2. The Natural Law Argument.
There are older, albeit isolated dicta suggestion that the Courts can declare legislation invalid as contrary to right reason or natural justice or good sense. In the main these authorities are old, reflect a different political and ideological perspective and context and are regarded now as wholly unpersuasive, the line of authority, such as it was, coming to a close with dicta of Willes J in Lee v Bude and Torrington Ry Co (1871) LR 6 CP 576. Nonetheless, a consideration of such authorities throws light on the historical aspect of Parliamentary Sovereignty, suggesting that it is of relatively recent origin in the life of the English Legal System and legitimating the view that Parliamentary Sovereignty has a beginning - and perhaps will have an end - in time.
Bonham's Case (1610) 8 Coke's Reports 114, 118: "... in many cases the common law will
control acts of parliament and sometime adjudge them to be utterly void: for when an act of
Parliament is against common right or reason, or repugnant, or impossible to be performed, the
common law will control it and adjudge such a Act to be void". And in Thomas v Sorrell (1674)
Vaughan 330:- "A law which a man cannot obey, nor act according to it, is void and no law; and
it is impossible to obey contradictions, or act according to them".(3) In R v Love (1653) 5 S T 43,
172 per Keble J, "Whatsoever is not consonant to Scripture in the Law of England, is not the
Law of England".(4)
Nowadays, these and other proposed criteria of validity serve merely as maxims of statutory
interpretation and construction; rather than as constitutional principles guiding judicial review of
the validity or constitutionality of primary legislation. Interpretation and construction are not
trivial. Courts could pay lip service to the doctrine of Parliamentary Sovereignty, while at the
same time interpreting and construing legislation on the assumptions that parliament would not
intend absurdity, unreasonableness, self-contradiction, and manifestly it would not set itself
against the Laws of God. Arguments continued until 1871 as to whether Parliament could
validly enact legislation contrary to the common law principle that no man be judge in his own
cause. These arguments appear to be laid to rest or consigned to the dustbin of history by Willes
J in Lee v Bude and Torrington Ry Co (1871) LR 6 CPP 576, holding that such principles
merely "stand as a warning rather than authorities to be followed." 3. The Human Rights Argument and the European Convention. In more recent times, a modern and secular version of the Natural law Argument has appeared in
connection with the European Convention of Human Rights and Fundamental Freedoms. Thus
in the 1970s serious suggestions were advanced by high judicial authorities to the effect that
Parliament's power or sovereignty was constrained by the Convention. In Birdi v Sec of State for Home Affairs (1975) S J 322 (the 2nd most important judge of the 20th
century) Lord Denning suggested that if an Act of Parliament was contrary to the Convention he
might be inclined to hold it invalid. And in Pan-American Airways Ltd v Dept of Trade 1976 1
Lloyd's Reps 257 at 261, Scarman LJ, speaking of the European Convention observed, "Such a
convention, especially a multinational one, should be considered by the Courts even though no
statute expressly or impliedly incorporates it into our law". If these two statements could be taken as stating the law, then ordinary courts would have had a
power to re-interpret or perhaps even declare invalid Acts of Parliament which were not in
conformity with the Convention. But, as will emerge, these statements reflect wishful thinking
rather than the actual state of the law. Before developing and justifying arguments addressed to
that point, I think it would be helpful to you if I said a few words about the Convention itself
since it seems to be a source of some unfortunate confusion. It is originally a creature of the
Council of Europe, an international organization of states rather than of the EEC or EU, a supra
national organization. The Human Rights Convention has now been given formal recognition in
the Maastricht Treaty as a source of Community law, its influence on the European legal system
will grow. My third lecture will address aspects of the Convention in some detail. ENDNOTES (excisions preserved from earlier versions) 1. Stuart v Wedderburn (1627 Durie 301: "The said act of Parliament could not be drawn into
dispute before the Session if it was formally or well done or not, they not being the judges
2. Pringle Petitioner 1991 SLT 330 Parliamentary Sovereignty, Acts of Union, Poll Tax
legislation and the nobile officium
3. In the Prince's Case (1606) 8 Coke's Reports 481, an Act - or rather what purported to be an
Act - was held invalid.
Nowadays, these and other proposed criteria of validity serve merely as maxims of statutory interpretation and construction; rather than as constitutional principles guiding judicial review of the validity or constitutionality of primary legislation. Interpretation and construction are not trivial. Courts could pay lip service to the doctrine of Parliamentary Sovereignty, while at the same time interpreting and construing legislation on the assumptions that parliament would not intend absurdity, unreasonableness, self-contradiction, and manifestly it would not set itself against the Laws of God. Arguments continued until 1871 as to whether Parliament could validly enact legislation contrary to the common law principle that no man be judge in his own cause. These arguments appear to be laid to rest or consigned to the dustbin of history by Willes J in Lee v Bude and Torrington Ry Co (1871) LR 6 CPP 576, holding that such principles merely "stand as a warning rather than authorities to be followed."
3. The Human Rights Argument and the European Convention.
In more recent times, a modern and secular version of the Natural law Argument has appeared in connection with the European Convention of Human Rights and Fundamental Freedoms. Thus in the 1970s serious suggestions were advanced by high judicial authorities to the effect that Parliament's power or sovereignty was constrained by the Convention.
In Birdi v Sec of State for Home Affairs (1975) S J 322 (the 2nd most important judge of the 20th century) Lord Denning suggested that if an Act of Parliament was contrary to the Convention he might be inclined to hold it invalid. And in Pan-American Airways Ltd v Dept of Trade 1976 1 Lloyd's Reps 257 at 261, Scarman LJ, speaking of the European Convention observed, "Such a convention, especially a multinational one, should be considered by the Courts even though no statute expressly or impliedly incorporates it into our law".
If these two statements could be taken as stating the law, then ordinary courts would have had a power to re-interpret or perhaps even declare invalid Acts of Parliament which were not in conformity with the Convention. But, as will emerge, these statements reflect wishful thinking rather than the actual state of the law. Before developing and justifying arguments addressed to that point, I think it would be helpful to you if I said a few words about the Convention itself since it seems to be a source of some unfortunate confusion. It is originally a creature of the Council of Europe, an international organization of states rather than of the EEC or EU, a supra national organization. The Human Rights Convention has now been given formal recognition in the Maastricht Treaty as a source of Community law, its influence on the European legal system will grow. My third lecture will address aspects of the Convention in some detail.
ENDNOTES (excisions preserved from earlier versions)
1. Stuart v Wedderburn (1627 Durie 301: "The said act of Parliament could not be drawn into dispute before the Session if it was formally or well done or not, they not being the judges thereto".
2. Pringle Petitioner 1991 SLT 330 Parliamentary Sovereignty, Acts of Union, Poll Tax legislation and the nobile officium
3. In the Prince's Case (1606) 8 Coke's Reports 481, an Act - or rather what purported to be an Act - was held invalid.
4.In Mackenzie v Stewart (1794) 1 Pat App 578, a private statute was set aside by the court on grounds of fraud.