Professional Documents
Culture Documents
The ‘sovereignty’ or ‘legislative supremacy’ of the British Parliament has evolved over many centuries
as the result of a combination of changing expectations of the relationship between Parliament and
the monarch/crown/Executive/government. The development has taken place through a combination
of decisions by the courts and Acts of Parliament. The doctrine continues to evolve.
Statues Cases
Dr Bonham’s case 1610
Bill of Rights 1688
Edinburgh and Dalkeith Rly v Wauchope 1842
Parliament Acts 1911, 1949
Ellen Street Estates v Minister of Health 1934
Cheney v Conn 1968
Anisminic v Foreign Compensation Commission 1969
European Communities Act 1972 s2, 4
Factortame II 1991
Scotland Act 1998, s. 28(7)
Northern Ireland Act 1998 s.5(6)
Human Rights act 1998, s4, 10, 19 (eff.
2000)
Thoburn v. Sunderland city council 2001
Jackson v Attorney-General, 2005
Here, CJ Coke said that if an Act of Parliament is against common right and reason, or
repugnant, or impossible to be performed, then the common law would control it.
Factortame litigation
On a reference for a preliminary ruling from the House of Lords in Factortame I the ECJ stated that:
….where the sole obstacle to a national court granting interim relief is a rule of national law
(i.e. in UK that the court cannot grant an [interim] injunction against the Crown), the national
court must set that rule aside.
The House of Lords decided in Factortame II therefore (a) to reverse the UK rule that [interim]
injunctions cannot be awarded against the Crown where EC law is concerned and (b) that on the
balance of convenience an interim injunction suspending the MSA (merchant shipping act) 1988
should be awarded. Ld Bridge noted that the UK knew this was the position and agreed to it when we
joined the EC.
Thus they were saying in effect that they knew there was this act but it might be in contravention to
EU law thus it might make sense on the balance of convenience to overturn it. They did this basis on
the fact that we knew what we were signing up to when we joined the European communities.
In M and the home office, the court decided that it was okay to grant interim injunctions even against
the crown even in respect to non-European cases.
In summary,
Here the HL acknowledged an obligation to comply with a principle of community and, and
to deny effect to the terms of an Act of Parliament
Thus it was concluded that a later Act of Parliament would yield to a conflicting EC Act non
withstanding that it had come later
This was therefore a limitation on the doctrine of implied repeal
The EC Act not only binds previous legislation but, as long as the UK is a member of the EU,
all future legislation as well.
Scotland Act 1998, s28(7) and Northern Ireland Act 1998 s5(6)
Scottish parliament is given wide ranging powers. (There were however many reserved
powers as well) Regardless, s28(7) specifically asserts the continued power of the UK
parliament to legislate in respect of Scotland.
Under the NI Act, Northern Ireland has an assembly that can pass acts. However, s5(6) gives
the UK parliament the power to legislate authoritatively on all issued