<<

. 34
( 155 .)



>>

tions between private persons. Thus, we ¬nd constitutional rules mingled with
the rest of the law, in statutes and subordinate legislation, in the common law
and decisions of judges.


(a) Statute
Although our constitution is frequently described as ˜unwritten™, almost all of it
is written down, somewhere. What we do not have is a ˜codi¬ed™ constitution, or
any sort of overarching, superior constitutional text. A considerable part of the
British constitution consists of written Acts of Parliament which regulate the
system of government or the exercise of public power. These include statutes
which have established fundamental features of the constitution, as by de¬ning
or rede¬ning the terms of the Union between England, Scotland and Northern
Ireland (Acts of Union with Scotland 1707 and with Ireland 1800 and the devo-
lution statutes of 1998), ¬xing the duration of Parliaments (Septennial Act
1715, amended by the Parliament Act 1911), de¬ning the relations between the
two Houses of Parliament (Parliament Acts 1911 and 1949), e¬ecting changes
in the law of the United Kingdom consequent upon accession to the European
Communities (European Communities Act 1972), and giving domestic legal
e¬ect to the rights protected by the European Convention on Human Rights
(Human Rights Act 1998). Elements of the constitution are also to be found in
statutes directed against public disorder (Public Order Acts 1936 and 1986,
Criminal Justice and Public Order Act 1994), conferring powers on the police
and on the security and secret intelligence agencies (Police and Criminal
Evidence Act 1984, Police Acts 1996 and 1997, Police Reform Act 2002, Security
Service Act 1989, Intelligence Services Act 1994), remedying maladministration
in government (Parliamentary Commissioner Act 1967), providing for civil
proceedings by and against the Crown (Crown Proceedings Act 1947), regulat-
ing the franchise and the conduct of elections (Representation of the People
Acts), and others far too numerous to mention.
Among these statutes are certain great constitutional Acts which were
enacted in con¬rmation of the results of political upheaval or revolution, or as
emphatic statements of what were conceived as fundamental rights or privi-
leges. The antiquity of these Acts, or the great historical events with which they
are associated, or the lasting worth of the principles contained in them “ or a
140 British Government and the Constitution


combination of these features “ have invested them with a kind of sanctity (in
the minds of lawyers and to some extent in public sentiment) which is not
unlike that elsewhere attaching to written constitutions. They include Magna
Carta 1215, the Habeas Corpus Act 1679, the Bill of Rights 1689, the Act of
Settlement 1701, the Act of Union with Scotland 1707 and the Statute of
Westminster 1931. The Human Rights Act 1998 may in time take its place
among them.
The following extracts are taken from the Bill of Rights 1689:

[The] Lords Spirituall and Temporall and Commons pursuant to their respective Letters and
Elections being now assembled in a full and free Representative of this Nation. . . . Does in
the first place (as their Ancestors in like Case have usually done) for the Vindicating and
Asserting their ancient Rights and Liberties, Declare
That the pretended Power of Suspending of Laws or the Execution of Laws by Regal
Authority without Consent of Parliament is illegal.
That the pretended Power of Dispensing with Laws or the Execution of Laws by Regal
Authority as it hath been assumed and exercised of late is illegal.
. . . That levying Money for or to the Use of the Crown by pretence of Prerogative without
Grant of Parliament . . . is illegal.
. . . That the raising or keeping a standing Army within the Kingdome in time of Peace
unless it be with Consent of Parliament is against Law.
That the Subjects which are Protestants may have Arms for their Defence suitable to their
Conditions and as allowed by Law.
That Election of Members of Parliament ought to be free.
That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be
impeached or questioned in any Court or Place out of Parliament.
That excessive Bail ought not to be required nor excessive Fines imposed nor cruel and
unusual Punishments inflicted.
. . . And that for Redress of all Grievances and for the amending strengthening and
preserving of the Laws Parliaments ought to be held frequently.

The provisions of the Bill of Rights are not inviolate, and some have been
altered by subsequent legislation; for example, it hardly needs saying that
Protestant subjects no longer enjoy a special privilege in the keeping of arms.
Some other provisions have lost their importance. There remains, however,
a core of provisions which the courts will still uphold against the Crown or
government (but not against speci¬c and clear contrary provision by
Parliament).


Attorney General v Wilts United Dairies Ltd (1921) 37 TLR 884 (CA)
It was the statutory duty of the Food Controller to regulate the supply and
consumption of food, and he had power under the Defence of the Realm Acts
and Regulations to make orders for this purpose. He made orders which ¬xed
141 Constitutional sources


maximum prices for milk and provided for the licensing of wholesale dealers.
The maximum price ¬xed for the more productive counties of Cornwall,
Devon, Dorset and Somerset was 2d a gallon less than for other areas, but
dealers who took milk from these counties for sale elsewhere were required to
pay 2d a gallon to the Food Controller. Licences were granted to the defendants
to purchase milk in the four counties on the express condition that they should
pay the 2d a gallon, but they afterwards refused to pay, and proceedings were
brought to recover the amount claimed to be due.
The Court of Appeal held that the statutory provisions relied upon by the
Food Controller did not give him power to levy a ¬nancial charge, and accord-
ingly that the imposition of the charge was illegal.

Scrutton LJ: . . . [T]he Bill of Rights . . . forbids ˜levying money for the use of the Crown
without grant of Parliament™, and the requirement of this twopence appears to me clearly
to come within these words. It is true that the fear in 1689 was that the King by his prerog-
ative would claim money; but excessive claims by the Executive Government without grant
of Parliament are, at the present time, quite as dangerous, and require as careful consider-
ation and restriction from the Courts of Justice.

The judgment of the Court of Appeal was a¬rmed by the House of Lords:
(1922) 38 TLR 781. (The same Article of the Bill of Rights was one of the
grounds of the decision of the Court of Appeal in Congreve v Home O¬ce [1976]
QB 629.)
In Williams v Home O¬ce (No 2) [1981] 1 All ER 1211, it was argued that the
plainti¬™s (claimant™s) detention in a special control unit, while serving a
sentence in Wake¬eld Prison, violated the prohibition in the Bill of Rights of the
in¬‚iction of cruel and unusual punishments. Since the regime in the control
unit was authorised only by delegated legislation (the Prison Rules) and not by
the Prison Act 1952, it would be illegal if contrary to the Bill of Rights. It was
held, however, on the evidence, that the regime was neither cruel nor unusual
and therefore that there had been no breach of the Bill of Rights. Challenges in
cases of this sort are now more likely to be founded on the Human Rights
Act 1998, giving e¬ect to Article 3 of the European Convention on Human
Rights in its prohibition of ˜inhuman or degrading treatment or punishment™.
(See eg, Davidson v Scottish Ministers 2006 SLT 110.)
Article 9 of the Bill of Rights (parliamentary proceedings not to be ques-
tioned outside Parliament) has frequently arisen for consideration in modern
times: see for example, Rost v Edwards [1990] 2 QB 460; Pepper v Hart [1993]
AC 593, 623“4, 638“40; Prebble v Television New Zealand Ltd [1995] 1 AC 321;
Hamilton v Al Fayed [2001] 1 AC 395. (Article 9 is quali¬ed by the Defamation
Act 1996, s 13.)
Certain provisions of Magna Carta, too, continue to be relied upon in judicial
proceedings. In R v Secretary of State for the Home Department, ex p Phansopkar
[1976] QB 606, for example, the Court of Appeal held that a person seeking a
142 British Government and the Constitution


certi¬cate of entitlement to enter the United Kingdom as a patrial (one having
the ˜right of abode™ under provisions of the Immigration Act 1971 then in force)
had the right to prompt and fair consideration of her application for the
certi¬cate, and could not be required ¬rst to return to her country of origin,
there to su¬er the same delays as a¬ected those requiring leave to enter the
United Kingdom. The court cited Magna Carta: ˜To none will we sell: to no one
will we delay or deny right or justice™. (See too Re S-C (Mental Patient: Habeas
Corpus) [1996] QB 599, 603.)
Magna Carta was invoked by the applicant for judicial review in R (Bancoult)
v Secretary of State for Foreign and Commonwealth O¬ce [2001] QB 1067, where
it was argued that the exiling in the 1960s of the Ilois people from the Chagos
Islands, a British overseas territory now known as the British Indian Ocean
Territory, in order to make way for an American air-force base, was contrary to
chapter 29 of Magna Carta, which provides that ˜no freeman shall be taken or
imprisoned, or be disseised of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed . . . but by . . . the law of the
land™. The argument was unsuccessful, but in the course of his judgment Laws
LJ emphasised the ˜enduring signi¬cance™ of Magna Carta, saying that it was ˜in
truth the ¬rst general declaration . . ., in the long run of our constitutional
jurisprudence, of the principle of the rule of law™. (See Tomkins, ˜Magna Carta,
Crown and colonies™ [2001] PL 571.)
Despite the special deference with which the Bill of Rights, Magna Carta and
other great constitutional statutes are cited by the courts, none of them is
immune from repeal by Parliament, and many of their provisions have in fact
been so repealed. In this respect their legal status may seem to be no greater than
that of the National Lottery etc Act 1993.


Chester v Bateson [1920] 1 KB 829 (DC)
A wartime regulation made under statutory authority provided that no person
should bring proceedings for the ejectment of a tenant of any dwelling-house
situated in certain areas of armament manufacture without the consent of
the Minister of Munitions. In proceedings brought by a landlord, without the
consent of the Minister, for the ejectment of a tenant, the validity of the
regulation was challenged.

Darling J: . . . [Counsel for the landlord] has contended that this regulation violates Magna
Carta, where the King declares: ˜To no one will we sell, to no one will we refuse or delay
right or justice™. I could not hold the regulation to be bad on that ground, were there suffi-
cient authority given by a statute of the realm to those by whom the regulation was made.
Magna Carta has not remained untouched; and, like every other law of England, it is not
condemned to that immunity from development or improvement which was attributed to
the laws of the Medes and Persians.
143 Constitutional sources


Nevertheless the regulation was held invalid since the ˜grave . . . invasion of the
rights of all subjects™ which it e¬ected had not been expressly authorised by the
empowering Act of Parliament.
The proposition that ˜constitutional™ statutes have no higher status than other
Acts of Parliament was countered by Laws LJ in the following case.

Thoburn v Sunderland City Council [2002] EWHC 195, [2003] QB 151
The Weights and Measures Act 1985 authorised the use of both metric and
imperial measures for purposes of trade without preference of one over the
other. Subsequently regulations were made, under power conferred by section
2(2) of the European Communities Act 1972, which prohibited such use and
gave priority to a metric system. It was argued that the regulations were incon-
sistent with the 1985 Act, and that this later Act must be taken as having
impliedly amended section 2(2) of the European Communities Act 1972,
restricting the power it conferred in respect of matters regulated by the 1985 Act
(the argument of ˜implied repeal™).
The court reached the conclusion that there was no inconsistency between
the Weights and Measures Act 1985 and section 2(2) of the European
Communities Act 1972, so that the argument of implied repeal fell away. Laws
LJ nevertheless considered the question of principle, whether the European
Communities Act 1972 could be impliedly repealed or amended by inconsistent
provision in a later Act.

Laws LJ: . . . We should recognise a hierarchy of Acts of Parliament: as it were ˜ordinary™
statutes and ˜constitutional™ statutes. The two categories must be distinguished on a princi-
pled basis. In my opinion a constitutional statute is one which (a) conditions the legal rela-
tionship between citizen and State in some general, overarching manner, or (b) enlarges or
diminishes the scope of what we would now regard as fundamental constitutional rights.
(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is
not also an instance of (b). The special status of constitutional statutes follows the special
status of constitutional rights. Examples are Magna Carta 1297, the Bill of Rights 1689, the
Union with Scotland Act 1706, the Reform Acts which distributed and enlarged the franchise
(Representation of the People Acts 1832, 1867 and 1884), the Human Rights Act 1998,
the Scotland Act 1998 and the Government of Wales Act 1998. The [European Communities
Act 1972] clearly belongs in this family. It incorporated the whole corpus of substantive
Community rights and obligations, and gave overriding domestic effect to the judicial and
administrative machinery of Community law. It may be there has never been a statute having
such profound effects on so many dimensions of our daily lives. The 1972 Act is, by force of
the common law, a constitutional statute.
Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the
repeal of a constitutional Act or the abrogation of a fundamental right to be effected by
statute, the court would apply this test: is it shown that the legislature™s actual “ not imputed,
constructive or presumed “ intention was to effect the repeal or abrogation? I think the test
144 British Government and the Constitution


could only be met by express words in the later statute, or by words so specific that the infer-
ence of an actual determination to effect the result contended for was irresistible. The ordi-
nary rule of implied repeal does not satisfy this test. Accordingly, it has no application to
constitutional statutes. . . . A constitutional statute can only be repealed, or amended in a
way which significantly affects its provisions touching fundamental rights or otherwise the
relation between citizen and state, by unambiguous words on the face of the later statute.


Laws LJ™s invention in this case of a class of ˜constitutional statutes™ was both
novel and signi¬cant. It may be argued that it was not so innovatory as might
appear, for the courts had already recognised the existence of constitutional
rights, which will not be overridden by an Act of Parliament unless Parliament™s
intention to do so is expressed in terms that are compellingly clear (see the rule
in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115,
cited above, p 62). Nonetheless, Laws LJ™s views were regarded as exceptional,
and they have not (as yet) been approved by the House of Lords (although see
Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, considered
in chapter 2).
In a comment on the Thoburn case ((2002) 118 LQR 493), Geo¬rey Marshall
sees di¬culty in the thesis of ˜two-tier™ legislation:

The proffered definitions are undeniably vague and it is hard to see any clear dividing line
between ordinary statutes and statutes that deal with rights of a kind that we would now
regard as fundamental. Are rights to education, medical services or pensions basic or
fundamental, or are they mere run-of-the-mill entitlements? And where statutes condition
the legal relationship between citizen and State, when is the manner in which they do it
general or overarching? Are Police Acts or Taxation Acts or trade union legislation general or
overarching enough to qualify?
What, in any event, is the rationale for supposing that some Acts of Parliament, whatever
their subject matter, embody the intentions of the legislature in a more forceful way or in a
more protected form than others, in the absence of any explicit Parliamentary expression of
intention to create first and second class statutes? Is it really consistent with the sovereignty
of Parliament that such a difference in status should be imposed on different segments of
its handiwork? In the absence of a consistent and workable definition it seems likely that
whatever statutes are judicially determined to be unamenable, for whatever reason, to
implied repeal will turn out to be constitutional. This seems to inject an unwelcome element
of uncertainty into our public law.


For ordinary public bills the committee stage in the House of Commons, when
their clauses are discussed in detail, is normally taken ˜upstairs™ in a standing
committee, rather than in committee of the whole House. The Select Committee
on Procedure recommended in 1945 (First Report, HC 9“1 of 1945“46, para 6)
that the committee stage of bills of ˜¬rst-class constitutional importance™ should
be taken on the ¬‚oor of the House so that every member should have the
145 Constitutional sources

<<

. 34
( 155 .)



>>