Validity Of An Act Of Parliament example essay topic

The legal issue in question is clearly one of parliamentary supremacy, whereby a party desires to question the validity of an Act of Parliament. In February 2001, the Parliament Act 2001 is approved by Parliament and receives the Royal assent. Section 1 of this Act provides that "in the event of a Bill being introduced into Parliament with the intention of granting independence to Scotland, a referendum must first be held... Only if two thirds of those eligible to vote in Scotland, vote in favour of such a change, may Parliament proceed to consider and vote upon such a Bill". In November 2002, a Bill is introduced into the House of Commons to give independence to Scotland.

In accordance with the terms of the Parliament 2001 Act a referendum is held in Scotland. When the result of that referendum is published it appears that 70% of those legible to vote in Scotland have participated and of those 70%, three quarters have voted in favour of Scottish independence. The Independence for Scotland Bill is then approved by Parliament and given the Royal Assent. The preamble for this Act states that it is "an Act to sever the Union between Scotland and the remainder of the United Kingdom, following a referendum held in accordance with the terms of the Parliament Act 2001".

It appears however, that the Independence for Scotland Act is wholly illegitimate, in that only 53% of those entitled to vote for the Act, did so, as opposed to the required 66%; henceforth this Act is in breach of the Parliament 2001 Act. This relates directly to the notion of implied repeal as there are two Acts on the statute books which conflict with each other. The procedure for such instances, although, is that the later Act will always prevail over the previous and considering the nature of Parliamentary Supremacy in the UK, it appears that the KSBA will be hard pushed in questioning the validity of the relevant Act. Parliament, in the United Kingdom, in terms of legislative supremacy, is omnipotent.

In The Law of the Constitution, (ed. E.C.S. Wade), 10th edn, 1959, Dicey famously said on the issue, "The principle of Parliamentary sovereignty means... that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament" (Although he refers to England, rather than the United Kingdom, the same rule applies nevertheless, as this can be simply attributed to the different times in which he was writing.) Thus, as Dicey asserts, Parliament can legislate on whatever it likes and it is no-ones position to question any Act that Parliament decrees. It is the Courts duty to interpret, enforce and apply such laws, whilst as citizens, it is merely our duty to obey them. Although there is debate whether it is good or bad, there can be no debate that there are no legal limitations on Parliament. In his note on Dr. Bonham's case, (1610) 8 Co Rep, 113 b, 118 a, Coke CJ said, "In many cases the Common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such an act to be void" It should be noted though that this case occurred in 1610; at least since the Glorious Revolution of 1688, judges have been strongly inclined to accept the "legislative omnicompetence" of Parliament.

However only in 1995, Lord Woolf argued that if "Parliament did the unthinkable" and legislated without regard for the role of the judiciary in upholding the rule of law, the courts might wish to make it clear that "ultimately there are even limits on the supremacy of Parliament which it is the courts inalienable responsibility to identify and uphold". As previously mentioned, the doctrine of implied repeal is relevant to the KSBA's case, this occurs when there are two Acts on the statute books which conflict with each other. The law as it stands on this, states that the later act will always prevail; this is because Governments cannot be bound by previous Government Acts, as this goes against the principles of the constitution, namely Parliamentary Supremacy. It is this very reason, combined with the unquestioning nature of Parliament's actions that makes the KSBA's case weak.

This is summarised by Lord Langdale in Dean of Ely vs. Bliss (1842) 5 Be av 574,582, "Every act is made either for the purpose for making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment" In the case of Ellen Street Estates Ltd vs. Minister of Health (1934) KB 590,597, the Acquisition of Land (Assessment of compensation) Act 1919 provided by's. 2 for the assessment of compensation in respect of land acquired compulsorily for public purposes according to certain rules. Section 7 (1) stated, "The provisions of the Act or order by which the land is authorised to be acquired, or of any Act incorporated therewith, shall in relation to the matters dealt with in this Act, have effect subject to this Act, and so far as inconsistent with this act those provisions shall cease to have or shall not have effect... ".

The Housing Act 1925 however, proposed on the relevant compensation assessment, terms differing from that proscribed in the 1919 Act. Section 7 (1) could be construed as applying to previous enactments, but it was argued also that it too applied to subsequent legislation; if this was true, inconsistent provisions in the 1925 Act would be of no effect. The appeal against the Housing Act 1925 was dismissed on the notion of implied repeal; Maugham LJ said, "The legislature cannot, according to our constitution, bind itself as to the form of 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" Clearly this supports the broad constitutional notion that Parliament may not bind its successors and that implied repeal will always take precedence (Maugham would have in fact been more accurate if he said Parliament cannot bind itself to the content, rather than form, of subsequent legislation). Whereas Ellen St. Est. questioned the validity of legislation through content, what about questioning validity through relevant procedures for law making, as this is more applicable to the KSBA's cause.

In the case of Pickin vs. British Railways Board (1974) AC 765,'s. 259 of a private Act of Parliament of 1836 stated, if a railway line should be abandoned, the lands acquired for the track should vest in the owners of the adjoining lands. Pickin brought action against the board claiming that by virtue of section 259 he was the owner of that land to mid-track. The Board claimed that it owned the land by a private act of Parliament, namely the British Railway Act 1968. Pickin then claimed that the Act was invalid as the relevant procedure for the passage of the Act had not been undertaken. The appeal was dismissed as it was felt the court had no business in enquiring into Parliament's affairs, as Lord Reid said, "In earlier times, many learned lawyers seemed to believe that an Act of Parliament could be disregarded in so far that it was contrary to... the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688, any such idea has become obsolete" This further demonstrates the almost impossible case the KSBA will be undertaking in trying to question the validity of an Act of Parliament, even though it is unlawful.

However, hope can be found in the similar case of Attorney General for New South Wales vs. Trethowan and Others (1932) AC 526. Here, under's. 5 of the Colonial Laws Validity Act 1865, the legislature of New South Wales had power to make laws respecting its own constitution, powers and procedure, provided that these laws were passed in such a "manner and form" as might be required by an Act of Parliament or other law for the time being in force in the state. In 1929 an Act provided that the upper house of the legislature should not be abolished until a Bill approved by both Houses had been approved by a referendum of the electorate; the requirement of a referendum applied also to amendments of the 1929 Act. Following a change of Government a Bill passed through both Houses, which sought to abolish both the Upper House and the requirement of a referendum.

The Government did not intend to submit the Bill to a referendum. An injunction was granted by the New South Wales Court to restrain the Government of New South Wales from presenting the Bill for the Royal Assent unless and until a majority of the electors had approved it. On appeal the Judicial Committee maintained that a referendum was binding on the legislature. This example seems not that dissimilar from the KSBA's case, however, it should be noted that in this case the piece of legislation was only in its Bill stages and not a fully-fledged Act. Furthermore, here the legislature was subordinate, not like Westminster Parliament, supreme. Finally, what of the practice maintained since 1960 that when Parliament confers independence to a colony, no further Act of the UK can extend to this country; as stated in the case between Ndlwana vs. Hofmeyr (1937) AD 229,237, "freedom once conferred cannot be revoked".

The case of Manuel vs. Attorney General (1983) Ch 77, also displays this. Following the Canada Act of 1982, which conferred full power of constitutional amendment on Canada, it was provided that "no subsequent Act of the UK Parliament shall extend to Canada as part of its law". If Westminster in future should seek to "reverse the historical clock" by attempting to legislate for Canada, the Canadian courts would ignore any such attempts, unless the Canadian Parliament had authorised them to give effect to the legislation from Westminster. Hence, the plaintiff's claim that amendments to the Canadian Constitution (contained in the British North America Acts) could be ignored, was successful. Clearly, although the Independence for Scotland Act is actually unlawful, the KSBA would be unsuccessful in their appeal if they tried to question the validity of an Act of Parliament as this is ultimately up to Parliament itself and no one has the right to question Parliament, as it is supreme. Although the two Acts are conflicting, the rule of implied repeal will prevail and the later Act will always take precedence.

Finally, as has been practice for the past forty years, once independence to a colony has been granted, it cannot be revoked; if for no other reason than the political constraints would be too great a factor, as public out roar would not allow such a move.