Note 2001

The first half of this lecture is ripe for rewriting in order to free up space for close discussion of Human Rights cases like R v Lambert (The Times 5th September 2000) and R v Offen [2001 Crim L R 63



LECTURE SEVEN: I FORMULA FOUR: LAW AND DEMOCRACY

II FORMULA FIVE: SUCCESSOR PARLIAMENTS

The fourth formulation is that Parliament is omnipotent, that is, "Parliament can do anything it pleases"(1). This formulation must be taken to mean only that there are no legal limitations. If Sovereignty actually meant supreme or absolute power, total omnipotence, then no Parliament is sovereign. Professor Laski was of the view that "No Parliament would dare to disenfranchise the Catholics or to prohibit the existence of the trade unions". The fate of the Industrial Relations Act, 1971 is a classic example of the very real political constraints on Parliament. In order for that act to apply, trade unions had to register, which few did because the Trade Union Congress opposed the legislation. In consequence, the legislation failed. The Employment Act, 1982 did not make the same mistake.



Parliament includes the House of Commons; that is elected representatives vulnerable every five years at most to re-election and who must, therefore, consider the effect of legislation upon their supporters. Of course, Parliament may pass unpopular legislation which many do not want but it cannot pass and successfully sustain legislation to which a substantial or influential proportion of the community vehemently object. The history of Poll Tax legislation provides an instructive case study(2). It sems to me that those to whom laws are addressed are in a strategic position to nurture or thwart the policy of the legislation. Their acquiecence is necessary for the law to flourish.



Parliament lacks physical power to compel obedience - in order for the law to be enforced - or even applied according to its (parliamentary) meaning, it is necessary that police, officials, and judges obey and apply the law not because of penalties but because they approve or at least acquiesce in the object of the law. Hume(3) points out that even the most powerful despot must lead his officials as men, rather than merely drive them as beasts. With their allegiance, the despot can compel the obedience of others; but the acquiescence of some is essential.(4) It seems, therefore, that authority is a more apposite concept than power. Sovereignty, then, is better understood as supreme legislative authority and not absolute physical power.



John Austin, from whose Jurisprudence Dicey's Constitutional theory developed, had difficulty in locating the seat of sovereignty; i.e. absolute physical power. Dicey inherited these problems. He divided sovereignty into legal and political. Legal sovereignty means simply the power of law-making unrestricted by any legal limit. But "that body is politically sovereign ... the will of which is ultimately obeyed by the citizens of the state". Dicey concluded that whereas Parliament is legally sovereign, the electorate is politically sovereign. Although this sound very reassuring it is unpersuasive. It can hardly be tested. What is meant by "ultimately", i.e. what tract of future time must pass before we can say that we can say that the will of the electorate has or has not prevailed?



Equally the concept of the will of the electorate is suspect. There is no established mechanism for ascertaining what the electorate or even a majority actually want at any one time on any one issue. The electorate participates only indirectly and intermittently. Cynically, every five years the electorate have the opportunity to choose which set of brigands is going to skin them for the next five years ! More seriously, democracy has been characterised as counting heads, not breaking them; proceeding by the ballot, not the bullet. But it is only one decision which is settled periodically by the ballot, i.e. who is to make the vast number of crucial decisions over the next five years, or so.



Schumpeter, Capitalism, Socialism and Democracy sees in democracy a periodic struggle for power; i.e. for the opportunity then to making binding and enforceable decisions in which the electorate do not participate. From such a perspective one can develop the criticism that our democracy is, in truth, a system of "elective dictatorship" (Hailsham, Dilemmas of Democracy, 1978). On this view, the political sovereign looks rather like the government, the cabinet, the inner cabinet, or even the prime minister (herself), rather than the electorate. Since major changes of social and economic policy by a government enjoying the support of, say, only one third of the electorate, policies which would not, perhaps, carry majority support in a referendum, the idea of the electorate as politically sovereign does not fit the facts and is indeed unpersuasive in late twentieth century Britain.



So, given the indirect and intermittent role of the electorate, it seems to fly in the face of fact to say that the will of the electorate is ultimately obey by the citizens of the state. Clearly in states where important constitutional change requires the approval of the electorate in a referendum, some case could be made for a politically sovereign electorate. Perhaps an even stronger case could be made where proportional representation, popular initiative of legislation - i.e. the passing into law of proposals signed by a determinate percentage of the electorate, and "recall of deputies" , i.e. direct accountability of MPs to their electors obtained. But in our society it seems that the electorate is made up of many different groups, in greater or lesser degrees of organisation, e.g. consumers, trade unions, churches, etc having conflicting interests and objectives and willing conflicting ends, none of which is supreme.



An alternative conception of democracy, brilliantly described by Hans Kelsen, emphasises that those subject to the law participate in its creation. This is, to me an attractive image but it is not conspicuously true of our own system, even in 1999. Only if a range of reforms are implemented, including protection of basic rights, proportional representation, popular initiative, recall of deputies , etc could we lay claim to this form of democracy as our own. And, as it seems, to me, only on this participative model could it even plausibly be suggested that the electorate is politically sovereign. So there is some way to go ...(5) (6)



In any event, there are (1) practical (non-legal ?) limitations:

(a) the electorate has some influence

(b) consultation with interest groups prior to the enactment of legislation, e.g. CBI, TUC, Law Society, and more generally by way of Royal Commission

(c) Government itself is a constraint on Parliament. Most Bills are Government Bills, and the party system ensures that Parliament, if not exactly a rubber stamp, usually supports Government legislation See R v Secretary of State for the Home Departmetn ex p Fire Brigades Union [1995] 2 WLR 1 holding that the expression that an Act comes into force "... on such date as the Secretary of State may appoint" imposes no duty on the Secretary of State. Accordingly a Secretary of State could thwart what appears to be the intention of parliament simply by not bringing an Act or all of an Act into effect.

(2) Furthermore there are legal limitations:

(a) Parliament born unfree? (Formula 1) Defoe Quote Where ??? MacCormick Scottish Anomaly

(b) Manner and Form (Formula 2)

(c) All legislation is hostage to judicial interpretation and construction (Formula 3). This last point can be further developed. Taking the contribution of Common Law and of Equity seriously as independent and dynamic sources of legal doctrine and principle - a bedrock upon which legislation stands and a fabric into which it must be woven. Paradox: the legal system that gives rise to two of the most remarkable phenomena in the history of law - Common Law, and Equity - is also seized of the Doctrine of Parliamentary Sovereignty, as omnipotence. It cannot do justice to the nature of the common law and to its tenacity merely to state that statute overrides common law, and leave it at that. But that topic has already been explored in relation to formula 3. So I turn to Equity.



In a very simple sense, expounded long ago by Aristotle, equity refers to a power of a court to disregard the plain meaning of a rule of law in order to do justice. Aristotle's example is the crime of assault. Such a crime could be "aggravated" if, instead of merely striking one's victim, one struck him with a metal object [cf implement]. A case occurs in which A punches B. A is wearing a ring. Question to be decided is whether this is simple assault or aggravated assault. A strictly formalist, literal interpretation might well lead to the conclusion that this is a case of aggravated assault. An equitable interpretation would temper the letter of the law with the spirit of justice, and would in this case hold that there is merely a simple assault. Equity in the Law of England emerged historically as a reaction to the strict formalism of the forms of action of the common law. It introduced flexibility and open-endedness, being as variable, so it was said, as the length of the Chancellor's foot. Common lawyers reacted strongly against the perceived arbitrariness of the Chancery; "divers men, divers consciences", and the practice allegedly offended against the Rule of Law ideal.



Long ago, equity in English law developed its own principles, and perhaps hardened into just another system of law with rules as clear as any rules of common law. This process may even have gone too far. Rigor aequitas set in, and equity almost lost the ability to discover new doctrines.(7) The separate system of common law courts on the one hand, and courts with equitable jurisdiction on the other were united by the Judicature Act, 1873-75(8) Equity in English practice is not now understood as an authorisation of judges to set aside the plain meaning of statutes in order to do justice. Four hundred years ago it was otherwise. Even Lord Ellesmere C stated in the Earl of Oxford's Case (1615) 1 Rep Ch 1, 6 , "... men's actions are so diverse and infinite that it is impossible to make any general law which may aptly meet with every particular, and not fail in some circumstances. The office of the chancellor is to .... soften and mollify the extremity of the law" Plowden's note to Eyston v Studde (1574) Plowd 459, 465 explains the nature of an "equitable construction of a statute": You are to "Suppose that the lawmaker is present, and you have asked him the question you want to know touching the equity; then you must give yourself such an answer as you imagine he would have done had he been present". On that basis some judges understood the equitable approach to allow that an unreasonable statute could be disregarded.



This equitable approach, in part on the basis of Coke's ringing dicta in Dr Bonham's Case (1610) 8 Co Rep 114, 118, became the basis for judicial review of primary legislation in America: "it appears in our books that in many cases the common law will control acts of parliament and sometimes adjudge them to be utterly void ...". You should know that at this time "aequum et bonum ... are the life of the law" (1582) Moore KB 116,117 per Bromley C and that prior to the 18th and 19th centuries, and arguably again in the 20th, a broad theory of equity prevailed whereby common law and equity were not two separate systems of rules at variance or in conflict because equity was not a self sufficient system; at every point equity presupposed the existence of common law and was parasitic upon it; in this sense "equity" was an approach to decision making which gave greater weight to the particular circumstances and merits of the case, whereas "common law" gave greater emphasis to the application of rules. The suggestion has been made that as equity, in the narrow senses of Chancery decisions and doctrines , hardened into law , so the common law has become more concerned with doing justice, at least in the view of Lord Denning in Hill v C A Parsons [1971] 3 All ER 1345, 1359: "...it is the common lawyers who now do equity".



Coke's approach appears to have been shared by Hobart in Day v Savadge (1614) Hob 85, 87 [add cite to list for 2000], "... even an act of parliament, made against natural equity, as to make a man judge in his own cause, is void in itself, for jura natera sunt immutabilia". But Coke, himself, seemed to have second thoughts and in his Institutes he played down judicial review of primary legislation concluding that "all causes to be measured by the golden and straight metwand of the law, and not the incertain and crooked cord of discretion" [Co Inst vol IV, pp 37, 41]. Blackstone, too, was hostile, holding that to permit judicial review of primary legislation would be "... to set the judicial power above that of the legislature which would be subversive of all government" [Bl Comm vol I. p 90]. So little further is heard of equitable construction and review of legislation until the mid twentieth century when Lord Denning's robust use of the whole corpus of principles borne of equity took him beyond mere statutory (re)interpretation and (re)construction and led him towards a cavalier approach to legislation, aptly know as the "New Equity".



Common Law produces some constraints on legislative competence. My treatment of formula 3 raised a prima facie case of constraint by way of presumptions of statutory interpretation and constructiom. As previously noted, it is unclear whether this is a legal on a non-legal limitation, or even a "mixed" limitation; but assuredly this is a limitation. One "proof" is that opponents of the incorporation of a Bill of Rights for the U K long argued that the common law already provided sufficient safeguards for civil liberties. If that is true, then the common law must protect the citizen from legislative excess. It suffices for this "proof" that in order to provided any safeguards, the common law must exert some constraint upon legislation. Normally it does this by presumptions; e.g. when Parliament enacts criminal legislation the courts assume that mens rea was intended, unless there are (very) clear words to the contrary; when Parliament enacts legislation apparently encroaching upon vested rights, very clear expression is required to be effective: when parliament creates a statutory tribunal, very clear words indeed are necessary to exclude its decisions from judicial review by the courts.



This last presumption is illustrated by a remarkable passage in the history of English Administrative Law relating to ouster clauses, that is, clauses seeking to exclude the jurisdiction of the courts where even the clearest of very clear words have not been clear enough ! Many statutes provide that a decision of a tribunal or statutory board shall be final, but the courts have maintained a policy whereby no tribunal or board should be the sole arbiter of its own jurisdiction. If a tribunal was able to determine its own jurisdiction, free from court supervision, it could, so the judiciary argue, extend its own jurisdiction without any limit.



The leading modern case is R v Medical Appeal Tribunal ex parte Gilmore [1957] 1 QB 574. A man had lost an eye in an accident. 19 years later he lost the other eye. By misconstruing the complex "paired organ" regulations the tribunal miscalculated the amount of disablement benefit. Unfortunately the Act said that decision of the tribunal "Shall be final" doubtless to further the laudable legislative policy that committees including doctors should reach decisions about disablement, rather than the courts. However, Lord Denning observed "Parliament only gives the impress of finality to the decisions of a tribunal on condition that they are reached in accordance with law". He continued [586], "If tribunals were to be at liberty to exceed their jurisdiction without check by the courts the rule of law would be at an end". This catches exactly the judicial determination to preserve regularity in the legal system. "The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question"(9) This is a fine example of judicial constraint operating upon legislative intention. Indeed, it appears that in this instance the judiciary re-educated the legislature. Such clauses fell into disuse and s.14 of the Tribunal and Inquiries Act, 1971 enacts, more or less, the Franks Committee recommendation that such clauses should not be used except in the most exceptional circumstances.



However, Parliament has retained the policy of setting up specialised tribunals whose determinations should be speedy, cheap and final and the modern ouster clause reads that such determinations "shall not be questioned in any legal proceedings whatsoever". In the remarkable case of Anisminic v Foreign Compensation Commission [1969] it was settled that even such a clause does not oust the jurisdiction of the courts to review the decision of a tribunal. Thus even the clearest of clear words do not suffice to override certain fundamental assumptions of the common law. Basically, the courts are determined to resist attempts by Parliament to create tribunals and agencies which, on a literal interpretation, would have been granted a wholly uncontrollable power. As Wade puts it, "in order to preserve this vital policy, the courts have been forced to rebel against Parliament". This, then, is a classic instance of the courts and the judiciary constraining Parliament ; and a clear case of the opposition between the Rule of Law and Parliamentary Sovereignty.



Proponents of classical Parliamentary Sovereignty insist that a foolproof - or judge proof - ouster clause could be devised by Parliamentary Draftsmen should it be required. The response is that whether or not that is so, it has nowhere successfully been done to date. Indeed, the government's immediate response to the decision in Anisminic was to propose a more sophisticated ouster clause. But that attempt attracted so much criticism in Parliament and in the press that the government dropped it. Thus, far from entering into a trial of strength with the judiciary, the government to a large extent restored the remedies which the ouster clause had unsuccessfully sought to remove, a restoration borne of judicial resistence to the clear words of a statute.



How far can this criticism of Parliament's claimed omnipotence be carried? It would probably be an overstatement to hold that the common law and statute law, the judiciary and the legislature, are of co-ordinate status, although there is no reason why this should not be so.(10) Indeed, some modern commentators and judges (such as Sedley in Sedley & Nolan, "The Constitution and the Common Law", and Laws) talk openly about the co-sovereignty of the courts and the legislature. I would not readily go so far as to hold that the common law is a wholly independent source of law of co-ordinate status with the legislature. But I do not need to in order to sustain my scepticism about Parliament's alleged omnipotence. It suffices to ground that scepticism that the common law is capable of engendering some resistance and that judges can and sometimes do hold out against the very plain meaning of legislation.



Professor Laski, in a letter to Oliver Wendell Holmes observed: "No amount of good drafting can prevent a strong judge like Bramwell from reading a statute in the context of his own unconscious presumptions" And there have been many "strong judges"; e.g. Lord Jessel MR, Lord Denning MR, Lord Scarman, Lord Goff, Lord Diplock, Lord Hoffmann [cf "good judge" like Lord Reid, Lord Edmund-Davies, Lord Mustill, or Lord Browne-Wilkinson] But it is not solely or even chiefly the "unconscious presumptions" of individual strong judges which operates as a constraint upon the legislature, so much as the shared assumptions of the judiciary as a whole. The common law judges are the custodians of principles and values which they will seek to uphold even against the very plain words of the legislature; and that collective commitment is assuredly a constraint upon Parliament's alleged "omnipotence".



II FORMULA FIVE: SUCCESSOR PARLIAMENTS: The fifth formulation of the doctrine of Parliamentary Sovereignty is that Parliament cannot Bind its Successors. This formulation is the direct contrary to the fourth formulation and therefore both cannot be true; yet both have been common in the literature and some authors even conjoin them thus, "Parliament can do anything, except bind its successors" in order, they seem to believe, the better to explain the phenomenon. I do not myself see that these two propositions can be coherently joined together. It seems to me that a choice has to be made between "self-embracing" and "continuing" sovereignty. I canvass six arguments:

1. If Parliament was born unfree - as consideration of the first formulation suggested, albeit rather weakly, then Parliamentary legislation, namely the 1707 Act of Union can and does bind successor Parliaments.

2 . Parliament can bind its successors by legislative alteration of manner and form rules; e.g. the Parliament Acts of 1911 and 1949. Only by observing such rules could a successor Parliament validly enact legislation and, as I argued in respect of the second formulation, if the manner and form rules are not observe the courts can and do disregard the purported legislation, disqualifying it as not being an Act pf Parliament at all. Thus one Parliament could, consistent with the manner and form rules it inherited, enact legislation changing such manner and form rules, and these new rules, as logically prior conditions of legislation will bind all successor Parliaments unless and until they themselves are changed by legislation, which legislation to be valid would have to be enacted in due observance of the then existing manner and form rules.

3. It is usually argued on the traditionalist side that any Parliament can always repeal previous legislation, thereby proving, it is thought, that no Parliament can be bound by its predecessors. This is, of course, simply to vote for "continuing" sovereignty and against "self-embracing" sovereignty. Yet this simple election has not appealed universally to those qualified to judge. Dixon J, for example, an Australian judge - and a great one - regarded s.4 of the Statute of Westminster, 1931 as "a restriction upon British parliamentary sovereignty"(11) And consider the dicta of Lord Sankey - another great judge - in British Coal Corporation v the King [1935] AS 500: "It is doubtless true that the power of the imperial Parliament to pass, on its own initiative, any legislation that is thought fit extending to Canada remains in theory unimpaired; indeed the imperial Parliament could, as a matter of abstract law, repeal or disregard s.4 of the Statute [of Westminster, 1931]. But that is theory and has no relation to realities".



A theory which bears no relation to realities is suspect - "...the first test of a theory of law is that it should fit the facts" [Holmes ?] - and whereas in Lord Sankey's view that theory might remain unimpaired 4 short years after the passing of the Statute of Westminster, can it remain unimpaired 68 years on ? If Parliament cannot alter that law in reality, Parliament cannot alter that law, full-stop ! Thus the Statute of Westminster, 1931 in reality has bound successor Parliaments. And what is true of the Statute of Westminster is true of the welter of Independence Act, passed by the U K Parliament in the course of half a century and more since.(12)



Geoffrey Marshall observes, "Anyone who accepts the traditional notion of sovereignty is ... committed to saying that s.2 of the Statute of Westminster and similar clauses [sic] in later Acts do not mean what they say when they provide that commonwealth parliaments shall have power to repeal any British Act of Parliament in its application to them, including any future act or the empowering statute itself". Now I am (constitutionally) unwilling to treat such obviously important sections in the Statute of Westminster, 1931, in independence legislation generally, or in the Act of Union, 1707 as not being there or as not meaning what they so plainly say. Therefore I cannot accept the traditional notion of Parliamentary Sovereignty. Further, even the theory to which Lord Sankey referred has not found universal support in later judgments. Thus in Ndlwana v Hofmayr [1937] AD 229, 237, "Freedom once conferred, cannot be revoked". See, too, Lord Denning in Blackburn v Attorney General [1971] 1 WLR 1037, 1040-41 "We have all been brought up to believe that in legal theory , one Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality" [1040].(13)

4. Another argument purporting to show that Parliament cannot bind its successors emerges from the so-called doctrine of "implied repeal". An Act of Parliament may be expressly repealed. However, sometimes it happens that an Act remains on the statute book and a subsequent, inconsistent statute is enacted. How and by whom is the conflict to be resolved? Which Act is valid? Which ought to be applied? The courts apply the doctrine of implied repeal which holds than an earlier Act is impliedly repealed or amended by a later, inconsistent Act. It is important to note that this doctrine is a creation of the common law; see, for example, the dicta of Lord Langdale in Dean of Ely v Bliss (1842) 5 Beau 574, 582: "If two inconsistent Acts be passed at different times. the last must be obeyed, and if obedience cannot be observed without derogating from the first, it is the first which must give way ... [the] operation ... [of ant Act] is not to be impeded by the mere fact that it is inconsistent with previous enactments".



This doctrine has been used to bolster the idea that Parliament cannot bind its successors. The Acquisition of Land (Assessment of Compensation) Act, 1919 s.7(1) contains the phrase "so far as inconsistent with this Act [other] provisions shall cease to have or shall not have effect". The Housing Act, 1925 sought to alter the criteria for assessing compensation, in effect reducing the amounts payable in respect of slum clearance projects. In Vauxhall Estates v Liverpool Corp [1934] 1 KB 733 the plaintiff tried the argument that s 7(1) of the 1919 Act "shall not have effect", rendered nugatory the provisions of the 1925 Act, i.e. that s 7(1) tied the hands of future Parliaments. Thus, whereas the statute could be expressly amended or repealed, it was immune from implied repeal. The court rejected this argument holding that the 1925 Act must prevail over the 1919 Act in so far as they were inconsistent.



Again, in Ellen Street Estates v Min of Health [1934] 1 KB 590, 597, per Maughan L J,"The legislature cannot, according to our constitution bind itself as to the form [sic] 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". Strong words indeed, but wrong. First, if we take this at face value, Maughan L J id denying that there are any manner and form rules. Most commentators think he meant to say "content" but even so, I propose to show that he is wrong. Apart from the dubious premise that Parliament cannot bind its successors, which is precisely what is here in question, it is not clear what reason the learned judge has for his very strong claim that it is impossible to enact that a statute is immune from implied repeal.



The best argument in favour of Maughan's proposition seems to be that the doctrine of implied repeal is a necessary ground rule for legal science and practice. But for the doctrine, confusion would reign and the law would be chaotic and uncertain. That would justify implied repeal generally but, contrary to Maughan's assertion it would not render impossible Parliament's declaring in an Act that that Act could only be expressly amended or repealed. The necessity of the doctrine of implied repeal is supported by the fact that it is exhibited more or less imperfectly in (nearly) all legal systems - the circumstance that the doctrine is frequently rendered in Latin - lex posteriori derogat priori - is tribute to its antiquity and (near) universality. But if this is a common feature of legal systems it is an even more dubious basis for the very particular doctrine that Parliament cannot bind its successors, for whereas the doctrine of implied repeal is universal, only the English legal system has attempted to draw this conclusion from it. At best, the doctrine of implied repeal is neutral as regards the question of Parliamentary Sovereignty.



More significantly, our courts do not always apply the doctrine of implied repeal when the opportunity arises. The judicial manipulation of the doctrine of implied repeal results sometimes in an earlier Act being followed by the courts even where there is a later inconsistent Act in order to preserve important principles.(14) I drew your attention to Malloch v Aberdeen Corporation [1971] 2 All ER 1278 in the context of retrospective legislation. Hidden in the interstices of that case is a profound point of statutory interpretation. The case concerned the dismissal of a teacher. The Public School Teachers (Scotland) Act, 1882, s.3 referred to teachers "holding office"a crucial phrase in defining a teacher's status and the circumstances under which teachers may be dismissed. In essence, prior to the employment protection legislation of the 1970s, office holders had and mere employees did not have a right to a hearing before dismissal. These crucial words were dropped from the Education Act, 1946. Lord Wilberforce observed, "... it would seem to me to be pitiful if this had the effect, by the mere withdrawal of as label, of totally altering a teacher"s status and his remedy ..." In other words, the later Act (of 1946) was read as if the terms in the earlier [repealed] Act (of 1882) continued to be present.



I turn to the remarkable case of Nairn v University Court of St Andrews 1909 SC (HL) 10. The Representation of the Peoples Act, 1868, dealing with and confining the franchise to men, enacted by s.27 that every person whose name is for the time being on the register of the General Council of specified Universities shall, if of full voting age and not subject to any legal incapacity, be entitled to vote in the election of a Member of Parliament for the University. By the Universities Election Amendment (Sc) Act 1881s.2(3) the registrar of the university shall issue a voting paper "to each voter to his address as entered on the register of the General Council". The Universities (Sc) Act, 1889, s.14 empowered universities to admit women by virtue of which in 1892 women were admitted to the Universities of St Andrews and Edinburgh. In 1906 certain women graduates brought an action against the University Courts and Officials of St Andrews and Edinburgh on the grounds that as members of the general Councils of these universities they were entitled to vote in a Parliamentary election, and in any event they were at least entitled to be issued with voting papers. They argued that the effect of the 1881 and 1889 Acts upon the 1868 Act was impliedly to amend the phrase "... any person, if of full voting age and not subject to any legal incapacity", thereby undermining the limitation of the franchise to men as contemplated by the 1868 Act and extending it to women, being members of the General Councils of Universities which returned members of Parliament.



This subtle, even ingenious argument was not appreciated by the House of Lords which held (1) that "any person" in the 1968 Act Must mean men (the definition in the Interpretation Act, 1889, applying prospectively but not retrospectively) and (2) that in any event the Act could not be altered except expressly by a subsequent statute (thereby holding it possible for Parliament to safeguard legislation from implied repeal - even without any words to that effect in the Act - all utterly contrary to Maughan's proposition that such legislation is "impossible" and contrary, too, to my own view that to be effective such immunisation from implied repeal must be express) and (3) that even if the literal meaning of the Acts taken together suggested thas women graduates had been granted the vote such an implication was not to be taken because "it was a fundamental principle of the unwritten constitutional law of the country that only men were entitled to take part in elections of mebers of Parliament".



There is some other authority to the effect that the courts will seek to protect fundamental constitutional statutes from unintentional amendment or repeal. See L.Wilberforce in The Earl of Antrim's Petition [1967] 1 AC 691, 724, "In strict law there may be no difference in status, or as regards the liability to be repealed, as between one Act of Parliament and another, but I confess to some reluctance to holding that an Act of such constitutional significance as the Union with Ireland Act is subject to the doctrine of implied repeal or of obsolescence - all the more so when these effects are claimed to result from later legislation which could have brought them about by specific enactment". But this is impliedly to endorse the Nairn point that some things are just too constitutionally important to be swept aside other than by express legislation. So the conclusion is that the so-called doctrine of implied repeal does not always apply and my be excluded by considerations of fundamental constitutional importance.

===============

1. Jennings?

2. Pringle SLT

3. Source?

4. Original lectures had some Hegelian Master-Slave comment but that may not be appropriate. Also a gloss to the "never-ending series of sanctions", Kelsen.

5. ... before we reach the status of a self governing citizens in a Kantian kingdom of ends.

6. Dicey also argues that "sovereign power cannot while retaining its sovereignty restrict its own powers by any particular enactment" - i.e. in Hartian terms sovereignty is not "self-embracing" but "continuing". Now this is self-evidently true as a conceptual analysis of supreme power but it is not necessarily true of legal sovereignty which could logically be "self-embracing" according to Hart and actually is "self-embracing" according to the modern approach. (Jennings, Heuston, Marshall, Tur and see now The Hon Sir John Laws, Judge of the High Court, Queen's Bench Division, "Law and Democracy", 1995 Public Law 72-93]. But here, in any event, Dicey must be writing about Parliament because the idea of the electorate, which for Dicey has supreme power, enacting anything is constitutionally meaningless. And further, electorates can, and do, impose restrictions on themselves. That is what a Bill of Rights does. And it is designed precisely to counter the "tyranny of the majority". So I conclude that Dicey misapplies his own logical analysis of supreme power and deduces a spurious "continuing" omnipotence of Parliament. This omnipotence is vulnerable at both the logical and the practical levels. Logically the problem of Parliamentary Sovereignty parallels the theological problem Can God make a stone so heavy he cannot lift it? If he can, he is not omnipotent; if he cannot he is not omnipotent. Even God cannot do the logically impossible. Nor can Parliament.

7. See Allen, Law in the Making, p 417.

8. But it would be wrong to believe that equity and common law were thereby fused into one exhaustive and exclusive, coherent and consistent body of legal rules. All that happened was that the same courts could consider question both at common law and in equity See Baker, An Introduction to English Legal History, 2nd edn pp 90-99.

9. Ex p Bradlaugh (1878) 3 QBD 509 (not quite clear why this cite was there.

10. Thus David Hume, "A wheel within a wheel, such as we observe in the German Empire, is considered by Lord Shaftesbury as an absurdity in politics: but what must we say of two equal wheels, which govern the same political machine, without any mutual check, control or subordination and yet preserve the greatest harmony and concord ? To establish two distinct legislatures, each of which possesses full; and absolute authority within itself, and stands in no need of the other's assistance, in order to give validity to its acts; this may appear beforehand altogether impractical ... and should I assert that the state I have in my eyes was divided into two distinct factions, each of which predominated in a distinct legislature and yet produced no clashing of these independent powers the supposition may appear incredible ... But there is no need for searching long, in order to prove the reality of the foregoing suppositions: for this was actually the case with the Roman Republic".

11. "The Law and the Constitution" (1935) 51 LQR 611.

12. Handout refers to the Australia Act though not clear why.

13. So, whilst in theory Mr Blackburn is quite right in saying that no Parliament can bind another, and that any Parliament can reverse what another Parliament has done ... these courts will not impugn the treaty making power of her Majesty" [1041] [Ministers ... exercise the prerogative of the Crown. Their actions in so doing cannot be challenged or questioned in these courts" 1040]

14. [I do not intend or imply any criticism of judges for this; I merely describe the inner workings of the legal system, inner workings which indicate that sometimes our courts modify a later Act in the light of an earlier Act, to maintain what they see as important principles of the common law or of the constitution]