LEVEL 6 - UNIT 12 – PUBLIC LAW SUGGESTED ANSWERS - JUNE 2016 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2016 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1(a) Meaning of parliamentary sovereignty The traditional definition of parliamentary sovereignty is that of AV Dicey: (i) that Parliament can make or unmake any law whatever; (ii) that no other person or body (including the courts) is able to question the validity of an Act of Parliament. The modern concept of Parliamentary sovereignty can be traced back to the 17th century struggle between the Crown and Parliament for supremacy, culminating in the Bill of Rights 1689. The principle was subsequently accepted by the courts. The so-called ‘enrolled Act rule’ illustrates the courts’ reluctance to scrutinise primary legislation. In Edinburgh & Dalkeith Railway v Wauchope (1842) the claimant attempted to challenge the validity of an Act, arguing that proper procedures had not been followed; the House of Lords rejected this argument. As Pickin v BRB (1974) shows, the courts cannot ensure that proper parliamentary procedures have actually been observed; all they can do is to check that the Act has been certified by the Clerk of the Parliaments as having been properly passed. There are many illustrations that support Dicey’s view of Parliament’s unlimited legislative competence. For example, statute may amend the constitution (e.g. Bill of Rights 1689, European Communities Act 1972, Human Rights Act 1998 (‘HRA’) to list just a few constitutionally significant statutes); statute has priority Page 1 of 17 over international law (Mortensen v Peters (1906)) and may have retrospective effect (Burmah Oil Co v Lord Advocate (1965)). Conversely, although Parliament remains sovereign, the one thing that it cannot do is to achieve supremacy over subsequent Parliaments; i.e. it cannot bind its successors. A later Parliament may expressly repeal any Act passed by a previous Parliament. Moreover, the courts have adopted the doctrine of implied repeal; where two statutes are inconsistent, the later statute will impliedly repeal the earlier statute insofar as there is inconsistency (Ellen Street Estates v Minister of Health (1934)). However, in Thoburn v Sunderland City Council (2002) Laws LJ obiter qualified the traditional doctrine by distinguishing between ‘ordinary’ and ‘constitutional’ statutes, such as the European Communities Act 1972, the HRA and the Scotland Act 1998. A constitutional statute is one that governs the legal relationship between citizen and state in some general, overarching manner, or changes the scope of fundamental constitutional rights. In Laws LJ’s view constitutional statutes cannot be impliedly repealed. Recently, Lord Hope, in the Supreme Court case of H v Lord Advocate (2012), offered support for Thoburn by stating obiter that the Scotland Act could not be impliedly repealed due to its ‘fundamental constitutional nature’. Furthermore, in R (HS2 Action Alliance Ltd) v Secretary of State for Transport (2014), the Supreme Court suggested obiter that there were certain fundamental constitutional principles, whether contained in statute or common law, that Parliament did not intend to override when enacting the European Communities Act 1972. It appears, therefore, that implied repeal may not necessarily apply where there is a conflict between two constitutional statutes. 1(b) Impact of the HRA Parliamentary sovereignty is, however, no longer considered to be unqualified, and is subject to certain limitations arising, for example, from the HRA. The European Convention on Human Rights is an international treaty which guarantees rights such as the right to life, the prohibition of torture, the right to a fair trial, the right to respect for private and family life, freedom of religion, expression and assembly. The HRA incorporates key Convention rights into domestic law. However, the incorporation has been described as ‘soft’ as Parliament was keen to preserve parliamentary sovereignty. Section 3 obliges the courts to interpret primary and secondary legislation in a way which gives effect to Convention rights, ‘so far as it is possible to do so’. Thus, in Ghaidan v Godin-Mendoza (2004) the House of Lords interpreted a provision in the Rent Act 1977 that protected the original tenant’s surviving spouse as including the tenant’s surviving same-sex partner. Conversely, in Bellinger v Bellinger (2003) the House of Lords held that it could not interpret the words ‘male’ and ‘female’ in the Matrimonial Causes Act 1973 to include post-operative transsexual people as that would have crossed the boundary from interpreting to legislating, which was Parliament’s role; instead the House made a declaration of incompatibility (below). These cases illustrate that, while the courts use s.3 flexibly, they nonetheless respect parliamentary sovereignty. Page 2 of 17 If the High Court or above is unable to interpret a statute compatibly with Convention rights, s.4 empowers it to declare the statute to be incompatible with the Convention (a ‘declaration of incompatibility’). Crucially, however, parliamentary sovereignty is maintained as this does not invalidate the legislation: the offending statute remains in force and any declaration of incompatibility does not bind the parties to the action (s.4(6)). Where a declaration of incompatibility has been made, the government may amend the legislation by using the ‘fast-track’ procedure created by s.10 enabling a Minister to amend the incompatible legislation by making a ‘remedial order’ where there are ‘compelling reasons’ to do so. Alternatively, the government may submit a Bill to Parliament. There is usually political pressure on the government to amend the offending legislation. Accordingly, after Bellinger the law was changed. However, the HRA does not oblige the government to change the law, and if it does not the offending statute will remain in force. Finally, s.19 obliges ministers introducing a Bill into Parliament to make a statement that the Bill is compatible with Convention rights or that, despite being unable to make such a statement, the government nevertheless wishes to proceed with the Bill. Accordingly, s.19 enables Parliament to enact legislation that violates Convention rights. So the HRA does aim to preserve parliamentary sovereignty. Although the HRA is a constitutional statute, it can be expressly repealed. Until recently, many commentators thought that political constraints meant that this was unlikely, as the HRA protects fundamental rights. However, it is now Conservative Party policy to repeal it and replace it with a British Bill of Rights, and following the May 2015 election the government is consulting on this possibility. Question 2(a) Meaning of royal prerogative Constitutionally, the royal prerogative encompasses special powers, rights and immunities peculiar to the Crown, deriving historically from the common law and not therefore conferred by Parliament. Dicey identified the royal prerogative as ‘the residue of arbitrary authority which at any given time is legally left in the hands of the Crown’, thereby describing their residual nature and the courts’ role in determining whether a prerogative power claimed actually exists. Examples of prerogative powers include treaty-making, declarations of war and deployment of the armed forces, the granting of royal assent, the prerogative of mercy and the issuing of passports. While prerogative powers are vested in the Monarch, in practice they are either exercised by the Monarch on the advice of the government or by the government in the Monarch’s name. 2(b) Relationship between the prerogative and statute As prerogative powers are effectively exercised by the executive, a key issue is the extent to which they are subject to legal control. Owing to the constitutional doctrine of parliamentary sovereignty, prerogative powers may be modified by statute. Aspects of the prerogative have therefore been expressly abolished by Page 3 of 17 statute. Examples include the Crown Proceedings Act 1947 which altered the immunities of the Crown in relation to civil proceedings (e.g. the Crown’s tortious liability) and the Fixed-term Parliaments Act 2011 which removed the Monarch’s power to dissolve Parliament. Similarly the War Damage Act 1965 altered aspects of the prerogative by removing the government’s obligation to pay compensation where British forces had damaged or destroyed British-owned property in wartime. This Act in effect reversed Burmah Oil v Lord Advocate (1965) where the House of Lords had held that at common law the government was required to pay compensation in those circumstances. The courts have also upheld the ability of statutes impliedly to curtail aspects of the prerogative. In A-G v De Keyser’s Royal Hotel (1920) the House of Lords held that, where statute gave rights of compensation following requisition of property for government purposes, the use of prerogative powers to requisition without paying compensation was curtailed. This case did not involve an ‘abuse’ of prerogative powers as such, but does show statutory restriction of the use of such powers. Laker Airways v Department of Trade (1977) confirmed the superiority of statutory powers. The government tried to revoke Laker Airways’ licence to fly to the USA, ignoring statutory procedures and relying instead on the prerogative powers. The court, however, insisted that the government should follow statutory procedures. Moreover, R v Home Secretary, ex p.