. 20
( 155 .)


(The judicial vindication in this great case of the rule of law and the rights
of individuals was countered by further measures taken by the National
Government which succeeded eventually in removing the Cape Coloured voters
from the common roll. The whole course of the constitutional battle is consid-
ered by G Marshall, Parliamentary Sovereignty and the Commonwealth (1957),
ch II and by C Forsyth, In Danger for their Talents (1985), pp 61“74.)
The Harris case is a demonstration of the principle that a Parliament may be
sovereign and yet be subject to requirements of manner and form for the legally
e¬ective expression of its will. But this does not justify us in concluding that
the United Kingdom Parliament can impose legally binding requirements of
manner and form upon itself. The Union Parliament owed its existence to the
South Africa Act, which therefore had a special status as the constituent instru-
ment of that Parliament. Only when functioning in accordance with the proce-
dural requirements of the constituent Act could it be said that the Union
59 The ideas of the constitution

Parliament functioned at all. Other Commonwealth cases that are invoked in
support of the ˜new view™ of parliamentary sovereignty, such as Attorney General
for New South Wales v Trethowan [1932] AC 526 and Bribery Comr v Ranasinghe
[1965] AC 172, also depend upon the special authority of the instrument
containing the limiting provisions. In the constitution of the United Kingdom,
on the other hand, as the Privy Council observed in Ranasinghe™s case, ˜there is
no governing instrument which prescribes the law-making powers and the
forms which are essential to those powers™.
As regards requirements of manner and form imposed by the United
Kingdom Parliament upon itself, the following case gives no encouragement to
exponents of the ˜new view™.

Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 (CA)
The Acquisition of Land (Assessment of Compensation) Act 1919 laid down the
principles on which compensation was to be assessed for the compulsory acqui-
sition of land for public purposes. Section 7(1) said that the provisions of any
Act authorising compulsory acquisition ˜shall . . . have e¬ect subject to this Act,
and so far as inconsistent with this Act those provisions shall cease to have or
shall not have e¬ect™. On one view section 7(1) is correctly construed as apply-
ing only to past enactments, but it was argued in this case that it applied also to
later Acts and that, as a consequence, inconsistent provisions in the Housing Act
1925 were of no e¬ect. It was not disputed that a later Act could amend the 1919
Act, but it was contended that only express provision in the later Act would
achieve this: in e¬ect, Parliament had in 1919 bound its successors as to the form
of any amendment of the provisions of its enactment of that year. The Court of
Appeal held, however, that even if section 7(1) of the Act of 1919 was intended
to apply to later Acts, it could not control future Parliaments, and the the
Housing Act 1925 therefore overrode those provisions of the 1919 Act with
which it was inconsistent.

Scrutton LJ: . . . Such a contention involves this proposition, that no subsequent Parliament
by enacting a provision inconsistent with the Act of 1919 can give any effect to the words it
uses. . . . That is absolutely contrary to the constitutional position that Parliament can alter
an Act previously passed, and it can do so by repealing in terms the previous Act . . . and it
can do it also in another way “ namely, by enacting a provision which is clearly inconsistent
with the previous Act.

Maugham LJ: . . . The Legislature cannot, according to our constitution, bind itself as to the
form of subsequent legislation, and it is impossible for Parliament to enact that in a subse-
quent statute dealing with the same subject-matter there can be no implied repeal. If in
a subsequent Act Parliament chooses to make it plain that the earlier statute is being to
some extent repealed, effect must be given to that intention just because it is the will of the
60 British Government and the Constitution

The same conclusion on this point had been reached earlier by the Divisional
Court in Vauxhall Estates Ltd v Liverpool Corpn [1932] 1 KB 733. These cases are
not necessarily conclusive of the matter: in each of them the ˜manner and form™
question arose in a speci¬c and narrow context and in neither case was the
nature of parliamentary sovereignty examined in depth. The ˜new view™ con-
tinues to ¬nd support, for instance, in a thoughtful analysis by PP Craig,
˜Sovereignty of the United Kingdom Parliament after Factortame™ (1991) 11
Yearbook of European Law 221. An unquali¬ed acceptance of the new view
would, however, bestow a dangerous power upon any government looking for
a way to shore up partisan legislation against being overturned by a future
Parliament of a di¬erent political composition.
Several members of the House of Lords commented on the ˜manner and
form™ argument in their opinions in Jackson v Attorney General [2005] UKHL
56, [2006] 1 AC 262 (for the background to which, see above). All such
comments were obiter, and none resolves the matter de¬nitively. Even after
Jackson there can be no certainty as to whether the manner and form argument
is, or is not, part of the law governing the Westminster Parliament. The clearest
support in Jackson for the manner and form argument comes from Lord Steyn
[81]; the clearest criticism of the manner and form argument comes from Lord
Hope [113] (but see also Baroness Hale of Richmond [161“163], who says that
the question ˜is for another day™).

Lord Steyn: . . . The word Parliament involves both static and dynamic concepts. The static
concept refers to the constituent elements which make up Parliament: the House of
Commons, the House of Lords, and the Monarch. The dynamic concept involves the
constituent elements functioning together as a law making body. The inquiry is: has
Parliament spoken? The law and custom of Parliament regulates what the constituent
elements must do to legislate: all three must signify consent to the measure. But, apart from
the traditional method of law making, Parliament acting as ordinarily constituted may func-
tionally redistribute legislative power in different ways. For example, Parliament could for
specific purposes provide for a two-thirds majority in the House of Commons and the House
of Lords. Such redefinition could not be disregarded. Owen Dixon neatly summarised this idea
in 1935: ˜. . . The very power of constitutional alteration cannot be exercised except in the
form and manner which the law for the time being prescribes. Unless the legislature observes
that manner and form, its attempt to alter its constitution is void. It may amend or abrogate
for the future the law which prescribes that form or that manner. But, in doing so, it must
comply with its very requirements.™ See ˜The Law and the Constitution™ (1935) 51 LQR 590,
601. This formulation can be traced to the majority judgment in Attorney General for New
South Wales v Trethowan (1931) 44 CLR 394.

Lord Hope: . . . it is a fundamental aspect of the rule of sovereignty that no Parliament can
bind its successors. There are no means whereby, even with the assistance of the most skilful
draftsman, it can entrench an Act of Parliament. It is impossible for Parliament to enact some-
thing which a subsequent statute dealing with the same subject matter cannot repeal.
61 The ideas of the constitution

It may be that no single theory of parliamentary sovereignty is unequivocally
established in our constitution, doing service for every occasion. TRS Allan,
˜Parliamentary sovereignty: Lord Denning™s dexterous revolution™ (1983) 3 OJLS
22, argues that the ˜fundamental™ rule about parliamentary sovereignty is in fact
indeterminate: it does not specify whether sovereignty is ˜continuing™ or ˜self-
embracing™. It is therefore for the judges to decide on the e¬ectiveness of any
self-imposed limitation of manner and form as and when the question arises,
and they may respond in the future to a perceived ˜readiness of the political
climate for change™ in upholding such a limitation in a particular context.

(d) Sovereignty reappraised: three contemporary challenges
(i) Membership of the European Union
When the United Kingdom joined the European Community (now the
European Union) in 1972 it was already an established principle of the
Community legal order that laws issuing from it, within the area of Community
competence, should have supreme authority in all the Member States. To this
end the European Court of Justice insisted that the Member States had, in trans-
ferring powers to the Community, necessarily limited their own sovereign
authority (see Case 26/62 Van Gend en Loos [1963] ECR 1 and Case 6/64 Costa
v ENEL [1964] ECR 585). Accordingly, the European Communities Act 1972
(the legal instrument governing the status of EU law in the United Kingdom)
provides that UK legislation “ including Acts of Parliament “ is to have e¬ect
subject to authoritative provisions of Community law. The signi¬cance of this
provision was illustrated in the Factortame litigation, the leading case in the
United Kingdom on the relationship between the sovereignty of Parliament
and the claims of EU law to legal supremacy. Factortame is considered in detail
in chapter 5. The e¬ect of this provision may seem equivalent to a transfer of
(a portion of) Parliament™s sovereignty to the Community, but since the
European Communities Act is, like any other Act, in principle repealable by
Parliament, the restriction of sovereignty e¬ected by it is not irreversible: we
may say that sovereignty has been lent rather than given away. But perhaps, as
Lord Sankey said about the Statute of Westminster and its application to
Canada, ˜that is theory and has no relation to realities™. What is clear is that, to
the extent to which sovereignty has been transferred to the European Union it
has been transferred only in limited ¬elds. As we shall see in more detail in
chapter 5, the European Union has the power to legislate only in speci¬c,
de¬ned ¬elds. Outwith those ¬elds, there is no question of legislative supremacy
having been transferred from Parliament to the European Union. That said,
however, it is equally clear that within those ¬elds regulated by EU law, even if
Parliament remains theoretically sovereign in that it may repeal the European
Communities Act 1972, the environment in which Parliament legislates has
changed such that, in practice, it tends no longer to ˜make or unmake any law
whatever™, but to make or unmake law in a way that is compatible with and, in
62 British Government and the Constitution

this sense, conditioned by the United Kingdom™s membership of the European
Union. Whether this constitutes a revolutionary alteration to the rule of recog-
nition or a mere evolution of legal principle is a matter of (hotly contested)
interpretation. For the former view, see Sir William Wade, ˜Sovereignty “
revolution or evolution?™ (1996) 112 LQR 568; for the latter, see TRS Allan,
˜Parliamentary sovereignty: law, politics and revolution™ (1997) 113 LQR 443.
These matters are considered more fully in chapter 5.

(ii) Incorporation of fundamental rights
If the European Communities Act 1972 poses the ¬rst contemporary challenge
to the orthodoxy of parliamentary sovereignty, the second comes from the
Human Rights Act 1998. By this Act Parliament incorporated into domestic
law most of the substantive rights enshrined in the European Convention on
Human Rights (ECHR). The ¬rst thing to say about the ECHR is that it is
not part of EU law. The ECHR was developed under the auspices of a quite sep-
arate international body, the Council of Europe. It is very important to keep
the Council of Europe and its ECHR separate from the European Union. The
ECHR is enforced by the European Court of Human Rights, which is in
Strasbourg; the law of the European Union is enforced by the European Court
of Justice, which is in Luxembourg. As a matter of international law the United
Kingdom has been bound by the terms of the ECHR since its inception in the
1950s. This means that litigants could complain to the European Court of
Human Rights if they felt their rights were being violated by the United
Kingdom. But it was not until the Human Rights Act 1998 came into force in
2000 that litigants could make such arguments in the domestic courts. The
relationship between fundamental rights, judicial review and parliamentary
sovereignty was summarised in the following way in an important ruling by
Lord Ho¬mann.

R v Secretary of State for the Home Department, ex p Simms [2000]
2 AC 115 (HL)

Lord Hoffmann: . . . Parliamentary sovereignty means that Parliament can, if it chooses,
legislate contrary to fundamental principles of human rights . . . But the principle of legality
means that Parliament must squarely confront what it is doing and accept the political cost.
Fundamental rights cannot be overridden by general or ambiguous words. This is because
there is too great a risk that the full implications of their unqualified meaning may have
passed unnoticed in the democratic process. In the absence of express language or neces-
sary implication to the contrary, the courts therefore presume that even the most general
words were intended to be subject to the basic rights of the individual. In this way the courts
of the United Kingdom, though acknowledging the sovereignty of Parliament, apply princi-
ples of constitutionality little different from those which exist in countries where the power
of the legislature is expressly limited by a constitutional document.
63 The ideas of the constitution

The following Convention rights are incorporated into domestic law under
the Human Rights Act: the right to life, freedom from torture, freedom from
slavery, the right to liberty, the right to a fair trial, the right to privacy, freedom
of thought, conscience and religion, freedom of expression, freedom of assem-
bly and association, the right to marry, freedom from discrimination, the right
to property and the right to education, as well as others (see, in more detail,
chapter 11). Sections 3 and 4 of the Human Rights Act govern the relationship
between these Convention rights and Acts of Parliament. Section 3(1) provides
that ˜So far as it is possible to do so, primary legislation and subordinate legis-
lation must be read and given e¬ect in a way which is compatible with the
Convention rights™. Section 4 provides that, if a court is satis¬ed that a provi-
sion of primary legislation is incompatible with a Convention right, the court
˜may make a declaration of that incompatibility™. Such a declaration ˜does not
a¬ect the validity, continuing operation or enforcement of the provision in
respect of which it is given™ (section 4(6)(a)). Thus, courts in the United
Kingdom do not have the power, even after the Human Rights Act, to strike
down Acts of Parliament which they deem to be incompatible with Convention
rights. All they may do is ˜declare™ the incompatibility. It is then a matter for
Parliament to decide whether it wishes to continue with the legislation, to
amend it or to replace it.
We will consider these matters in greater detail in chapter 11. For now what
is important are the implications of these provisions for the sovereignty of
Parliament. The key issue is: when should the courts use section 4 and
when should they use section 3? Suppose that the courts are faced with a
statutory provision they consider to be incompatible with a Convention right.
Depending on the wording of the provision and on the nature of the incom-
patibility, it may be that the court has a choice. Either it could use its power
under section 3 to interpret the provision so as to make it compatible with
Convention rights; or it could declare the provision to be incompatible. The
more the courts use section 4 the more the matter will remain one for
Parliament. Conversely, by using section 3 to stretch or perhaps even to change
the meaning of legislation, the more it will be the case that Parliament legis-
lates subject to the interpretation imposed by the courts. In other words, an
over-use of section 3 will lead to the Human Rights Act becoming a greater
restriction on the sovereignty of Parliament. There is already a considerable
body of case law (and attendant academic commentary) on this issue. Early
tensions within the Appellate Committee of the House of Lords were revealed
in R v A [2002] 1 AC 45, where Lord Steyn considered that the only limit on
the use of section 3 was where the provision in question expressly contradicted
a Convention right. Other members of the House of Lords hearing the appeal
were not prepared to go so far, and Lord Steyn™s position was criticised by Lord
Nicholls in Re S [2002] 2 AC 291. In R (Anderson) v Secretary of State for
the Home Department [2003] 1 AC 837 Lord Steyn seems to have relented
somewhat, as he stated that ˜section 3(1) is not available where the suggested
64 British Government and the Constitution

interpretation is contrary to express statutory words or is by implication
necessarily contradicted by the statute™. In Bellinger v Bellinger [2003] 2 AC 467,
the House of Lords declined to interpret a provision of the Matrimonial Causes
Act 1973 to include single-sex marriages when one of the parties had under-
gone a gender reassignment. Lord Nicholls stated that:

the recognition of gender reassignment for the purposes of marriage is part of a wider
problem which should be considered as a whole and not dealt with in piecemeal fashion.
There should be a clear, coherent policy. The decision regarding recognition of gender reas-
signment for the purpose of marriage cannot sensibly be made in isolation from a decision
on the like problem in other areas where a distinction is drawn between people on the basis
of gender. These areas include education, child care, occupational qualifications, criminal law.

For these reasons, the issue should be one for Parliament, not for the courts,
and the House of Lords granted a declaration of incompatibility under section
4. If Re S, Anderson and Bellinger seemed to indicate that the more robust
approach proposed by Lord Steyn in R v A was not to be preferred, the follow-


. 20
( 155 .)