Lecture Notes 2: Non-Legal Sources UK Constitution PDF

1 §II- The non-legal sources of the constitution of the United Kingdom A) The Conventions of the Constitution 1. Definition and scope a) Definition A constitutional convention is an informal & uncodified procedural agreement regulating the way an institution of a State is expecte...

1 §II- The non-legal sources of the constitution of the United Kingdom A) The Conventions of the Constitution 1. Definition and scope a) Definition A constitutional convention is an informal & uncodified procedural agreement regulating the way an institution of a State is expected to use one of the constitutional powers it is endowed with, either by the Common Law or a specific statute. It therefore works as a sort of tacit constitutional amendment limiting its discretion in the exercise of those powers. b) Scope - In the UK, three main categories of such conventions can be distinguished. The first concerns the exercise by the monarch of the Royal Prerogative. Legally speaking, the Queen could freely exercise it. In practice however, she’s constrained by various conventions such as: the requirement not to act without a formal recommendation & advice of the Prime Minister or a Cabinet minister who will countersign the legal act of the sovereign and be politically held responsible of its consequences before Parliament; requirement to appoint as PM the leader of the party (or coalition of parties) with the largest number of seats in the Commons, and therefore most likely to command the support of it; to assent to any Bill passed in similar terms by both houses or by the House of Commons alone if the Cabinet rely on the Parliament Act 1911 to override a veto of the upper house. The second category concerns the Cabinet: the PM is to be a MP (a convention appeared in 1963, when Lord Home, appointed as PM by the Queen, decided to disclaim his peerage and to run for a seat in the House of Commons at a by-election1); members of the Government may only be appointed (Cabinet members as well as ministers outside of Cabinet) if they have a seat either in the Commons or in the Lords; members of the Cabinet are, immediately after receiving the seals of their office ,sworn in as Privy Counsellors. The third category concerns the Parliament: all Money Bills (fiscal legislation or budget) are to be introduced in the Commons (the MPs being the representatives of the tax-payers), an incumbent Speaker seeking reelection in his constituency at the next general election mustn’t be opposed any challenger so that he’s returned unopposed; the House of Lords won’t veto any Bill announced in the manifesto of the party having won the general election (Cranborne-Salisbury convention, appeared in 1945)2; Queen's Consent has to be granted to the introduction before either house of a Bill affecting the Royal Prerogative, the Crown hereditary revenues or the monarch’s private properties. 2. Constitutional conventions and legal rules 1 The last Prime Minister to have sit in the Lords was the marquis of Salisbury (1885-6, 1886-92, 1895-1901). 2 The viscount Cranborne, who became, in 1947, on the death of his father, the fifth marquis of Salisbury, was, between 1942 and 1957, the leader of the conservative peers in the House of Lords. In 1945, the Labour Party lead by Clement Atlee had won a large victory at the General election on a manifesto promising the creation of a British Welfare State. Anxious not to clash with the new government and to protect the existence of the upper house, Cranborne admitted that the Labour had received from the electorate a mandate for any Bill announced in the manifesto and that therefore it will be undemocratic for the Lords (heavily dominated by the Conservative Party) to try to delay its implementation.  2 a) Common features - Legal rules & constitutional conventions are both rules, i.e. prescriptions aiming at imposing some kind of discipline, some sort of order. They are opposed to mere habits which have no prescriptive force, but only reflect a sociological reality. They belong, to use a distinction made as soon as 1739 by David Hume, in his Treatise of Human Nature, to the sphere of the is, not to the sphere of the ought to. That distinction of the sein and the sollen will be adopted by Emmanuel Kant, in 1785, in his Grundlegung zur Metaphysik der Sitten. It’s, of course, at the root of Hans Kelsen’s Reine Rechtslehre of 1934. Hilaire Barnett perfectly characterises habits in her Constitutional and Administrative Law textbook, when she observes “Drinking tea is a habit: the statement is simply reflective of actual observable conduct. There is nothing in the statement which requires that conduct, or which states that it ought to happen. (…) If the English fail to drink tea in the afternoon, or drink coffee instead, that action is not going to give rise to any criticism because a mere habit imposes no obligation. (…) There is no obligation imposed on the English to drink tea and hence no criticism will follow from failure to do so” (see also H. L. A. Hart, The Concept of Law, Clarendon University Press, 1961). - Legal rules & conventions aren’t merely rules, they are essentially social rules, i.e. their object is the organisation of human societies & the relations of the various individuals composing it. The consent of those individuals is indeed necessary for them to be properly enforced, a fact rightly underlined by Ivor Jennings in Law and the Constitution (Hodder and Stoughton, 5th edition, 1959, p. 117 and p. 118). b) Specific features of the Conventions of the Constitution Legal rules and constitutional conventions however differ in several respects. On the one hand, the time needed for them to be formalized isn’t the same. Legal rules indeed are instant creations, in the sense that they exist as soon as they are enacted (no matter that that enactment is made by Parliament, an Executive authority under the Prerogative/a parent statute, or by a Judge discovering a new Common Law principle). Conventional rules, in contrast, are progressive creations demanding elapse of time (often known as crystallisation)3, so that the political actors are able to understand its reason and to admit the necessity to respect the obligation implied. It’s, under those circumstances, quite hard to identify the very moment when a usage followed by the political actors acquires such a moral force that it has obviously turned into a new conventional rule. On the other hand, the level of certitude required to identify & to interpret norms and conventions is different, being, of course, higher when considering the first ones. Legal rules, indeed, are mentioned in official reports (Law reports or Case law reports); they consist in precise statements of a various length. Conventional rules can’t be as easily characterised. To prove their existence, you have to consult sources of various origins, such as parliamentary debates, minutes of governmental meetings, official statements of politicians, press articles, biographies or life stories of ancient ministers, to be able to discover the components of a convention. Interpreting them is as difficult, as you are dealing with a rule the content of which isn’t even clearly fixed; political actors potentially disagreeing on its precise delineation. That’s why dealing with exceptions to constitutional conventions mitigating the rule it contains is so arduous that it can be stated that a specific convention includes a restriction allowing its non-enforcement under certain specific circumstances. As an example, one has to mention the controversy aroused, in the U.S., by the decision of F. Roosevelt, in 1940, to run for a third term. It can be considered a breach of a convention dating back to Washington’s retirement from the presidency, in 1797, under which no president was to 3 See J. Munro, “Thoughts on the Sewel convention”, Scots Law Times 2003, p. 194 or M. Elliott, “Parliamentary sovereignty and the New constitutional order: legislative freedom, political reality and convention”, Legal Studies vol. 22 (2002), p. 340.  3 exercise more than two mandates4. It can also be considered as an illustration of an exception to that same convention; that convention being enforceable only under ordinary constitutional circumstances, not when the Nation was confronted to a major economic crisis and to the threat constituted by Japanese expansionism in South-Eastern Asia or German domination in continental Europe5. Those exceptions however must not be mistaken for waivers, i.e. cases under which a political actor decides not to abide to the rule contained in one convention, when confronted with a specific occurrence. The validity of that practice is doubtful, because if it doesn’t put into question the binding effect of a convention (the fact that a legal rule is disregarded can’t be either considered a reason to deny its compulsory nature) it leads to an in-and-off legality. The most famous example of suspension of the enforcement of a constitutional convention occurred in 1975, when Harold Wilson, at the head of a Cabinet deeply divided on that issue, announced the suspension of the basic rule of collective ministerial responsibility during the time of the campaign of the referendum on the continued European Communities membership of the UK. Legal rules & conventions eventually result from distinct sources: the ones result from the will of the legislator, of ministers or judges, whereas the others have broader roots. You have indeed to identify them to discover, at the same time, a material element (the behavior followed, under determined circumstances, by one political actor) and a psychological element (did that very actor opt for that behaviour because he thought he had to and he deeply believed that disregarding it would have exposed him to the accusation of having violated the spirit of the constitution?). The material element of a convention is known as a precedent6. It can have been set after a debate and a negotiation between those whose behaviour it aimed at restricting. The conventions concerning the functioning of the Commonwealth of Nations (see above) belong to that category, for example the one which is founded on the Final resolution of the Imperial Conference of 1930 stating that it is the exclusive preserve of the ministers of the dominions (see above) to advise the King on their own affairs, British ministers being debarred to make recommendations on such subjects. Most of the time however, the precedent only consists in a usage followed during a period of a variable length. It has to bear on a constitutional subject, that is to say the organization and functioning of the branches of government. That restriction means therefore that the inner rules used by each major party to select its own leader can’t be considered constitutional conventions, even if they play a decisive role in the designation of Prime ministers. The same remark can be made regarding the Civil Service. The psychological element is summed up by Ivor Jennings’ two questions: “Did the actors in the precedents believe that they were bound by a rule?”; “is there a reason for the rule?” Even if its characterisation is no easy task, it is nevertheless central if you wish to distinguish genuine conventions from mere practises7, i.e. behaviours usually adopted by a political actor when confronting a determined situation. Two cases tried by the Supreme Court of Canada are to be mentioned when dealing with that question: Reference Re: Resolution 4 For that view, C. R. Munro, Studies in Constitutional Law, Butterworths, 1987, p. 51. 5 For that view, J. Jaconelli, “The nature of constitutional conventions”, Legal Studies vol. 19 (1999), p. 24, specially, p. 32. 6 Linking precedents, legal rules and conventions, see N. Johnson, “Law, Convention and Precedent in the British Constitution”, in D. Butler, V. Bogdanor and R. Summer (ed.), The Law, Politics and the Constitution, Oxford University Press, 1999, p. 137. 7 On conventions and practices, R. Brazier “The Non-Legal Constitution: Thoughts on Convention, Practice and Principle”, Northern Ireland Law Quarterly vol. 43 (1992), p. 262.  4 to Amend the Constitution (Patriation Case) and Reference Re: Amendment to the Canadian Constitution concerning the patriation of the Canadian constitution8. In Reference Re: Resolution to Amend the Constitution , the Court had to answer a question about the existence of a convention under which the federal authorities could only apply by the British authorities for an amendment of the Constitution of 1867 after a unanimous consent of the ten Canadian provinces. Observing that “It does not appear that all the actors in the precedents have accepted the unanimity rule as a binding one”, the Court reasons that “One essential requirement for establishing a conventional rule of unanimity was missing”, before concluding that “There existed no such convention” and that therefore “A substantial degree of provincial consent”; a substantial degree of provincial consent was sufficient (=a consent by a clear cut majority is enough). Reference Re: Amendment to the Canadian Constitution was caused by the claim by Quebec that it had, under the principle of duality9, a veto on any federal constitutional evolution. The Court had, once more, to consider the psychological element of constitutional conventions. Having observed that “Like most fundamental rules of any constitution (…) they rest essentially upon general acquiescence”, it notes that “If the authority itself and those connected with it believe that they ought to do so, then the convention does exist. (…) Practice alone is not enough”, before concluding “Recognition by the actors in the precedents is not only an essential element of conventions. In our opinion, it is the most important element (…), the formal one which enables us unmistakably to distinguish a constitutional rule from a rule of convenience or from political expediency”10. Similarly, that psychological element plays a major role in distinguishing a convention from an understanding, a term designating a mere agreement, more or less formalised, between the different political actors about the way to behave about some questions, under certain circumstances. As the understanding does not express any obligation, it is not, as a matter of fact, a genuine rule, which explains why its breach will not be sanctioned by a social reprobation as strong as if the breach had concerned a conventional rule. The state of mind of those concerned by the conventions has eventually to be considered to understand their evolution as well as the problem of the changes in their very content. A newly appeared understanding, in breach of a convention that used to be followed, can only be identified as a new convention if the political actors by their behaviour show they now believe it is better fitted to the social demands that the former one (there is a ground for the new rule) and if they consider their duty to abide by it (binding effect). Example of such an evolution? From the beginning of the 18th century to the WW I, the PM could sit either in the Commons or in the Lords, at a time when universal suffrage had not yet been established (the marquis of Salisbury being the last peer to have occupied the post). After the Representation of the People Act 1918, that convention is contested twice: in 1923, when George V appoints Stanley Baldwin rather than Lord Curzon because he thinks it has become inappropriate for a PM to rule from the upper house; in 1940, when Winston Churchill is preferred to Lord Halifax for the same reason. It is eventually dropped, in 1963, when Lord 8 Canada, when created as a dominion, had been endowed with a constitution (British North America Act 1867) by the Parliament of Westminster. That Parliament, when it passed the Canada Act 1982, gave up its last prerogative towards Canada (especially the power to amend its constitution). The transfer of that ability to the Parliament of Ottawa marks the full acknowledgment by the UK of the independence of its former dominion. 9 Under that principle, the federation created in 1867 was based not only on an agreement between the four founding provinces (Nova-Scotia, New-Brunswick, Ontario & Quebec), but also between English-speaking & French speaking populations; Quebec being the natural true-born representative of those ones even beyond its borders (French-speaking minorities indeed live in Nova-Scotia, New-Brunswick, and Prince Edward island, the three Acadian or Maritime provinces, but also in Ontario). 10 That opinion is borrowed from Ivor Jennings: “A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it” (I. Jennings, The Law and the Constitution, University of London Press, 5th edition, 1959, p. 136).  5 Home, on being appointed PM, disclaims, under the Peerage Act 1963, his peerage and runs for a seat in the House of Commons. b) Coexistence There exist some constitutional subjects where legal rules and conventions are strictly separated. Such is the case when the subject has never been legally defined, meaning that only the conventional rule applies (e.g. convention requiring the monarch to appoint as PM the leader of the party with the larger number of seats in the House of Commons). That feature doesn’t imply however its transformation by a kind of prescriptive process into a legal rule. That fact was underlined by the Supreme Court of the United States in Youngstown Sheet and Tube Co. v. Sawyer (1952), when President Harry Truman, anxious to support the war effort in Korea, invoked precedents set by Abraham Lincoln, during the Civil War, or Franklin Roosevelt, during the WW2, to requisition steel mills whose staffs had gone on strike, without Congressional authority. On the contrary, the legal frame can be so tight that there is for the actors having to implement it no need for any interpretation, which means no room for the development of a specific convention (e.g. sections 2 and 3 of Act of Settlement 1701 debarring from the succession to the throne any person professing Roman Catholicism and demanding that the monarch should “joyn in the communion with the Church of England as by law established”). That legal basis can indeed have been introduced as a substitute to a former convention or to reaffirm its content after a breach (Parliament Act 1911, 22th amendment of 1951 in the U.S.) Most of the time however, as already mentioned, conventional rules and legal rules coexist under the following scheme: a legal rule confers on a political actor a power he can theoretically exercise freely, but the conditions of its exercise are actually restricted by a convention. The situation is summed up by Joseph Jaconelli: “To categorise any governmental issue as one that is regulated by constitutional convention is to argue that here is an area in which the freedom of the actors on the governmental stage is curtailed (though not by legal restraints): that within the sphere demarcated by constitutional convention the actors are precluded from adopting the policy that accords with their perception of what the public interest requires” (J. Jaconelli, “The nature of constitutional conventions”, Legal Studies vol. 19 (1999), p. 24, quotation p. 27). That dichotomy between law & legal practice is at the root of Walter Bagehot’s The English Constitution, published in 1867, where he distinguishes the dignified from the efficient parts of the Constitution; the first ones (for example, the Queen) being invested with powers that are actually used by the second ones (for example, Cabinet ministers). You find echo of it in the opinion of the Supreme Court of Canada in Reference Re Amendment of the Constitution of Canada (1982). Reference Re Amendment of the Constitution of Canada (1982): “Conventional rules are generally in conflict with the legal rules […] and the Courts are bound to enforce the legal rules. The conflict is not of a type which would entail the commission of any illegality. It results from the fact that legal rules create wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all”. To sum it up, “The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period”. Reversing the perspective, one has to keep in mind that a convention can be superseded by a legal rule if Parliament decides to codify it. That move nevertheless will not necessarily be the end of the story, as nothing will prevent the application of the new codified legal source to be at the origin of a new convention… Example of such a codification: codification of the Ponsonby Rule by the Constitutional Reform and Governance Act 2010. Obligation for the Government to lay on the table of both Houses of Parliament every  6 treaty, when signed, for a period of 21 days, after which the treaty will be ratified by the monarch and published and circulated in the Treaty Series (if there’s a formal demand for discussion forwarded through the usual channels from the Opposition or any other party, time will be found for the discussion of the Treaty in question). Codification isn’t the same as recognition, as illustrated by the Sewel Convention recognized by the Scotland Act 2016 & the Wales Act 2017. For the Supreme Court, a recognized convention isn’t legally enforceable (R (Miller) v Secretary of State for Exiting the European Union ). Under the Sewel Convention, the Parliament of Westminster will use its sovereignty to legislate in subjects devolved to a devolved assembly only after having obtained a consent of that latter (Sewel convention or Legislative Consent Motion11). 3. Binding force Whereas breaking a legal rule attracts a legal sanction, such is not the case of a breach of a constitutional convention. You are not indeed allowed to raise before a Court or the Speaker/Lord Speaker in Parliament its violation. No consequence therefore results on the validity of a behaviour or a legal act disregarding it, leading Dicey to write that conventions are: “Understandings, habits or practices which, though they may regulate the (…) conduct of the several members of the sovereign power (…) are not in reality laws at all since they are not enforced by the Courts”. You meet the same idea, a century later, under the pen of Geoffrey Marshall and Graeme Moodie: “Rules of constitutional behaviour which are considered to be binding by any and upon those who operate the constitution but which are not enforced by the law courts… nor by the presiding officers in the Houses of Parliament” (G. Marshall and G. Moodie, Some problems of the Constitution, Hutchinson, 5th edition, 1971, p. 23 and 24). Courts or presiding officers can only acknowledge the crystallisation of a convention and bear testimony of its existence. In that sense, see the opinion of the Judicial Committee of the Privy Council in Madzimbamuto v Lardner-Burke. Madzimbamuto v Lardner-Burke : the case dealt with the legality of the renewal, in February 1966, of an administrative imprisonment decided by Ian Smith’s government, after the instauration on November 5th 1965 of the state of emergency in the dominion of South-Rhodesia as a prelude to the Unilateral declaration of independence (UDI) by the white settlers. Mrs. Madzimbamuto, acting on behalf of her imprisoned husband (one leader of the Black African resistance to Smith’s cabinet), claimed that his internment was illegal, because the legislative assembly of the dominion, after the UDI, had been deprived of all its devolved powers by the Parliament of Westminster (Southern Rhodesia Act 1965). In defense, the Rhodesian Justice and Law and Order minister claimed that the renewal, in February 1966, by the local legislative assembly of the state of emergency, that had allowed him to keep Madzimbamuto locked, was perfectly valid because of the unconstitutionality of the Southern Rhodesia Act; the Parliament of Westminster having breached the constitutional convention, dating back to the Status of Westminster of 1931, allowing it to legislate for the dominions only with the consent of their representative assembly. That argument is rejected by the Committee. If it’s able to identify a convention (and there’s no doubt that the one in question indeed exists), it can’t however guarantee it: “It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if 11 Lord Sewel, parliamentary Under-Secretary of State at the Scotland Office, was the first to formulate that convention during the discussion before the House of Lords of the Bill granting devolution to Scotland (HL Deb. vol. 52, col. 791 12 July 1998). Its existence has been since then formally consecrated in the Memorandum of Understanding and Supplementary Agreements between the United Kingdom’s Government and Scottish Executive (Cm. 4444, TSO 1999, 5), before being recognized (but not granted statutory footing) by the Scotland Act 2016 and the Wales Act 2017.  7 Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid”. Same refusal by the Queen’s Bench to enforce the convention of Cabinet secrecy, in Attorney-General v Jonathan Cape Ltd. Attorney-General v Jonathan Cape Ltd : an action had been brought before the High Court by the Attorney General (A.G.) to obtain an injunction to prevent publication by the Sunday Times of extracts of the political diary of the late Richard Crossman, a Labour Cabinet Minister, which had been sold by his inheritors. The A.G. justified that application by claiming that such a move was in clear violation of the convention under which all Cabinet members are to keep the most absolute secrete on the deliberations of the Cabinet, the publication of political memories being only possible after a screening by the Cabinet secretary. The Civil division of the CA of England & Wales confirmed that analysis in Manuel v Attorney-General concerning the passing by the British Parliament of the Canada Act 1982. It admits that it was legitimately adopted in spite of the Canadian constitutional convention requiring that the consent of the chiefs of the Amerindian native tribes should be sought and obtained before any constitutional evolution. A breach a convention can’t be legally sanctioned under those conditions (even if such a behavior is unconstitutional, it’s not however unlawful) but only politically. It has to be considered in terms of public morality. As such, it’s the duty of the politicians themselves, and beyond them of the electorate and the public opinion, to express their reprobation, and to decide which consequences should result. For a reassertion by the UKSC of that situation, about the Sewel convention, in the context of Brexit, R (Miller) v Secretary of State for Exiting the European Union. For an example, of a breach of the Sewel Convention, you may refer to the passing of the EU Withdrawal Act 2018 against the refusal of consent of the Scottish Parliament and of the UK Internal Market Act 2020 against the refusal of consent of the Scottish & Welsh assemblies. B) The works of authority In a field such as Constitutional Law, where case-law is often scanty, the views of writers of repute enjoy considerable persuasive authority. Among those authors of works of authority, we may, in particular, mention Sir Edward Coke (1552-1634), author of Reports (edited between 1600 and 1644) as well of the Institutes of the Laws of England (1628), Sir William Blackstone (1723-1780), who wrote his Commentaries on the Laws of England, Clarendon Press, from 1765 to 1769, Walter Bagehot (1826-77), author of The English Constitution (1867), Albert Venn Dicey (1835-1922) who wrote An Introduction to the Study of the Law of the Constitution (1885), and Thomas Erskine May (1815-1886) whose most famous work is A Practical Treatise on the Law, Privileges, Proceedings and Usage of Parliament (known as Parliamentary Practice). Section III- The fundamental constitutional concepts in the United Kingdom § I- Parliamentary Sovereignty In the UK, as, of course, in any other democracies, sovereignty, from a political point of view, belongs to the people, meaning that any power ultimately derives its legitimacy from that source. In the UK, however, the exercise of sovereignty by the representatives of the people (=houses of Parliament) is unlimited. In constitutional representative democracies, such as the U.S., France, Germany, Italy, Spain, Poland…, Parliament when adopting statutes is constrained by an entrenched higher law (=constitution). When passing them, it has to carefully respect formal requirements contained in the constitution as well as substantive prescriptions (particularly guarantees of basic freedoms and individual  8 rights enumerated in preamble of the constitution or in a Bill of rights). Such is not the case in the UK where there’s no written and entrenched codified constitution. In contrast with other democracies, the expression of will of Parliament is therefore supreme in Westminster. That power of law-making unrestricted by any legal limit is known as Parliamentary sovereignty or legislative supremacy. We shall consider the three basic rules on which it traditionally lays, before explaining why, since the beginning of the 1970s, it has been under assault. A) The three basic rules 1) Parliament is the supreme law-making body and may enact laws on any subject matter a) Parliament may enact any law That unlimited authority of Parliament only concerns statutes, that is to say Bills passed by both Houses (or by the House of Commons if the Parliament Act 1911 has been used) and having been given the royal assent. This “enrolled Bill rule” dates back to a case judged by the High Court of Chancery The Prince's Case. It means a contrario that some other kinds of legal norms aren’t covered by legislative supremacy. First, such is the case of royal proclamations issued under the Royal Prerogative (see below): the Court of Common Pleas in the Case of Proclamations (for details of that case, see below developments about Separation of powers) judged that the monarch couldn’t create an offence unknown to law, and that he had only such prerogative power as was granted under law12. Second, that’s also the situation of international treaties: in The Parlement belge , the High Court of Admiralty made it clear that treaties negotiated & signed by the Crown ministers under the Royal Prerogative may take legal effect only under the authority of an Act of Parliament, a treaty having no legal force under domestic law unless & until its provisions are incorporated into law by statute. Third, mere resolutions of any or both Houses of Parliament may not benefit from that supremacy: Queen's Bench’s decision in Stockdale v Hansard. b) Parliament may legislate on any subject matter Parliament may vote a law on any matter. There’s indeed in the UK no governmental reserved sector, nor any individual private sector. It may also give retrospective or extra-territorial effect to that legislation. It eventually may also legislate in violation of a pre-existing international law rule. 1. The lack of any governmental reserved sector or any individual private sector There are in the UK no reserved matters in which the government alone may issue regulations on the model of article 37 of the French constitution of 1958. Most of the rules than may be taken by a public authority (orders in Council, ministerial regulations) are therefore subordinate (statutory instruments), that is to say that an enabling or a delegating act stands at their root (secondary legislation). 12 Consequently, the King had no power to arbitrarily, through royal proclamations, to prohibit the new buildings in London or the making of wheat starch without the consent of Parliament.  9 The Royal Prerogative (see below) allows, of course, the monarch or, through a delegation, his/her ministers to enact primary legislation in so far as, in the subjects concerned, there doesn’t exist any Act of Parliament. But this situation isn’t necessarily forever, and nothing forbids Parliament to adopt such a legislation to limit the ways a particular Prerogative power is exercised or, more radically, to suppress it. Similarly, no individual private sector may limit the legislator which may legislate in that one as well as in the public one. In the UK, we can, under those conditions, meet private Acts that would specifically apply to a particular individual or to a group of individuals, or to a corporate entity. Such acts can afford relief from another law, grant a unique benefit or powers (e. g. allow a district to use compulsory purchase to realise a major project) not available under the general law, or relieve someone from legal responsibility for some allegedly wrongful act (e. g. a void marriage). As examples, we may cite the Acts of indemnity, renewed annually, between 1727 & 1828, which dispensed the Dissenters (Protestants non-conformists) from the penal sanctions provided for by the Corporation Act 1661 towards any person that, having accepted a municipal responsibility, didn’t take part in the services of the Church of England (duty to conform). Under that category, it’s necessary to mention the Bills of attainder, appeared at the time of the War of the Roses (1455-1483), through which Parliament could declare an individual guilty of some crimes & could punish him (most of the time, death with confiscation of all his belongings) without benefit of a trial & without the duty to bring evidence of the guilt. Two famous victims of that procedure were two ministers of Charles I; the Earl of Strafford (1593-1641), executed in May 1641, and archbishop of Canterbury William Laud (1573-1645), executed in January 1645. Besides those private Acts, the great majority of Acts of Parliament consists in public Acts dealing with matters of public interest. Such texts can concern the Crown as well as the Judiciary. The order of succession to the throne was thus modified by the Bill of Rights 1689, then by the Act of Settlement 1701 (amended by the Succession to the Crown Act 2013), an absolute denial of the principle at the root of a divine right monarchy. In the same way, the Judicature Act 1873 established, in England & Wales, a Supreme Court of Judicature (consisting of the Court of Appeal, the High Court & the Crown Court) through the fusion of the Court of Queen's Bench, the High Court of Chancery, the Court of Exchequer, the High Court of Admiralty, the Court of Common Pleas & the Court of Probate and Matrimonial Causes. As strange as it may seem, the Parliament may use its legislative power to limit its sovereignty. That limitation can manifest itself in space. As an example, after the Balfour Declaration13 of 1926, the Parliament, through the Statute of Westminster of 1931, gave up his right to legislate in the dominions, marking thus their de facto legislative independence. More radically, it adopted, from 1947 on, and from the end of the Empire of India, in the context of decolonization, statutes transferring to newly independent States the powers it had towards their territory and their population (e. g. Nigeria Independence Act 1960 or Zimbabwe Independence Act 1979). Above all, the Parliament may freely modify the conditions of its own organisation and functioning, because it has the ability to determine its own competence. It has thus extended, because of the World Wars, its own duration: the one elected, in 1910, for a maximum term of five years, was kept alive until 1918; the one elected in 1935 did act, in the same manner, till 1945. The Parliament can also alter its own definition, as we have seen with the Parliament Act 1911. Ultimately, as Parliament is sovereign, it may use that sovereignty to decide its own suppression. Technically speaking, thus was the case when the Parliament of England (in 1706) & of GB (in 1800) passed the Acts of Union. In both cases, such a Parliament fused with a foreign one to give birth to a new legislative body for a new country, that body inheriting parliamentary sovereignty. 13 Giving an account of the debates of the Imperial Conference of London between the UK and its dominions, it stated that the latter were "autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations".  10 2. The grant of a retrospective or extra-territorial effect to a legislation At Common Law, Courts can’t grant extra-territorial effect to a legislation, that is to say admit that it might apply to facts or acts having occurred outside of the UK. Such a principle was consecrated by the House of Lords in Treacy v DPP. Parliament, however, isn’t bound by such a principle & might confer expressly or even impliedly such an effect to a statute that it has passed. Such crimes or offences committed in foreign countries (murder, treason, and bigamy) can, under those circumstances, because of such a legislative provision, be tried by British Courts. The effect of a statute can also be modulated in time, and Parliament may legislate with retrospective effect. As an example, we may mention the War Damage Act 1965 depriving any person of a right to compensation for prejudices caused by legal acts of property destruction decided by the Crown during the Second World War. That Act was adopted to overrule the decision of the House of Lords in Burmah Oil Company (Burma Trading) Ltd v Lord Advocate , admitting that, at Common Law, the Crown had a duty to pay for such destructions caused by the exercise of the Royal Prerogative (in 1942, British troops had destroyed oil installations in Rangoon, with the intention of preventing them from falling into the hands of the Japanese military forces, for details see below developments about Royal Prerogative). 3. The violation of a pre-existing international law rule Parliament may legislate contrary to the requirements of International Law. That principal was consecrated in a judgement of the Scottish High Court of Justiciary of Mortensen v Peters (1906). Mortensen v Peters (1906). The case was about the maximum extent of territorial waters. That was established, at the beginning of the 20th century, by an international custom rule to three nautical miles from the baseline (usually the mean low-water mark) of a coastal State. However, Parliament voted, in 1889, the Herring Fishery (Scotland) Act creating a public corporation, the Scotland's Fishery Board, and giving it the task of regulating and controlling the fishing in the Firth of Moray, the greatest part of which is above the three nautical miles limit. A Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of fishing in the Moray Firth that had been prohibited by the Board. As a defence, he argued that, although the statute banning the method would have caught a British fisherman, it should be construed as impliedly excepting all foreigners fishing from foreign vessels outside the territorial jurisdiction of the British Crown. He therefore considered that the 1889 Act was invalid in so far as it violated an international rule to which the UK, as a sovereign State, was bound. That defence failed, because the Court considered that "In this Court we have nothing to do with... whether an act of legislature is ultra vires as in contravention of generally acknowledged principles of international law. For us, an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms". 2) No Parliament may be bound by a predecessor or bind a successor No Parliament may be bound by an Act of Parliament passed by a predecessor or bind a successor by such a text. It has, on the contrary, the right to modify some of its provisions or even to suppress it. It’s a consequence of the fact that its sovereignty has no limit and is permanent. Parliament, like the King, who is one of its components, never dies.  11 It’s therefore impossible, from a formalist point of view, to distinguish among statutes some of them as constitutional, because any text having such an object can be modified by a subsequent ordinary law adopted with a single majority (no entrenched higher law). Such a modification can be express, but also implied when, without formally abrogating an anterior legislation, Parliament however adopts a new text, the content of which is incompatible with the one of the former legislations. Faced with such a normative imbroglio, Courts apply then the lex posterior priori derogate rule, and making the newest legislation prevail, treat the oldest as impliedly repealed. That principle (“implied repeal” doctrine) was consecrated by the decision of a Divisional Court of the King's Bench of the High Court Vauxhall Estates Ltd v Liverpool Corporation. Vauxhall Estates Ltd v Liverpool Corporation : The Acquisition of Land (Assessment of Compensation) Act 1919 aimed at reducing insalubrious housing. Its section 7 (1) dealt with the compensations to be paid to the owners of the houses to be pull down and stated that any anterior legislation, but also any posterior legislation incompatible with its own provisions would be deprived of any effect. The Housing Act 1925 having provided for a less generous scheme for compensation that the one established in 1919, an owner asked to benefit from the more advantageous provisions of the 1919 Act, claiming that Parliament, having limited towards that latter its own competence, could only modify it in an express way. His claim was dismissed; the Court refusing to admit that Parliament could validly bind itself and that, thus, some statutes could be recognised a superior valour prohibiting their implied repeal. Such an analysis was confirmed by the Court of appeal in Ellen Street Estates Ltd v Minister of Health , about that same section 7. In his opinion, Maugham LJ declared that "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 subsequent 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 legislature". There’s, under those conditions, no substantive or procedural entrenchment that could hinder the repeal, express or implied, by Parliament of a statute previously passed. That lack of material limit to the sovereignty of Parliament is illustrated by a set of cases about the Acts of Union which contain provisions said to be unalterable, such as “the true Protestant Religion and worship, discipline and government of the Established Church are to continue without any alteration to the people of this land in all succeeding generations” (Scotland) or “the United Church of England and Ireland shall be and shall remain in full force for ever” (Ireland). They haven’t, nevertheless, prevented Parliament from adopting provisions with a contradictory content. For example, as early as 1711, it adopted the Scottish Episcopalians Act and the Church Patronage (Scotland) Act giving an official status to the Episcopalian Church in Scotland. The Universities (Scotland) Act 1853 and the Parochial and Burgh Schoolmasters (Scotland) Act 1861, for their part, impliedly repealed the provision of the Acts of Union of 1707 which compelled all teachers in Scotland to be members of the Scottish Established Church (Scottish judges suggested however obiter that Parliamentary sovereignty being an English legal concept, not a Scottish one, there may be provisions in the Acts of Union 1706/7 which couldn’t be repealed by the Parliament of Westminster: MacCormick v Lord Advocate ; Gibson v Lord Advocate, ). Such a light attitude has been approved by the Courts. In its decision Ex parte Canon Selwyn 36 JP 54, the Queen's Bench refused to strike down the Irish Church Act 1869 disestablishing, in Ireland, the United Church of England and Ireland, even if the establishment of such a Church, qualified as an essential and fundamental part of the Union, in 1800, was due to last forever. Parliament can’t either subordinate the exercise of its normative power to any procedural limit, stating that the modification of some provisions it passes will only be possible in due respect of a specific process (manner and form entrenchment) derogatory to the usual procedure used to adopt statutes (for example, it  12 may demand a qualified and not a simple majority in Parliament or demand that the modification should be approved by a referendum). That impossibility to entrench a statute, through the use of manner and form requirements, is a contrario enlightened by several decisions of the Judicial Committee of the Privy Council about former British colonies the constitution of which resulted from an Act of the Parliament of the UK: Attorney-General of New South Wales v Trethowan Bribery (about an amendment to the constitution of the Australian State of New South Wales); Bribery Commissioner v Ranasinghe (about an amendment to the constitution of Ceylon). Attorney-General for New South Wales v Trethowan : The legislature in NSW had, in 1929, enacted that the Upper House should not be abolished except by a Bill which, before being presented to the Governor for the Royal Assent, should be approved by the electors in a referendum. This requirement for a referendum could not itself be repealed except by the same process. In 1931, a NSW government secured the passage of two Bills, one purporting to abolish the requirement of a referendum, the other purporting to abolish the upper House. It was admitted that these Bills were to be presented for the Royal Assent without any prior referendum. A declaration of invalidity and an injunction was sought and granted. This was upheld, first, by the High Court of Australia, and, secondly, by the Privy Council but only on the grounds that section 5 of the Colonial Laws Validity Act 1865 laid down express requirements as to manner and form. Bribery Commissioner v Ranasinghe : S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to “amend or repeal any of the provisions of this Order”; but provided that no Bill for amendment or repeal should be presented for the Royal Assent unless it was endorsed with a certificate of the Speaker, which was to be conclusive for all purposes that the Bill had been passed by a 2/3 majority of the members of the House of Representatives. The appellant was convicted of a bribery offence before a tribunal created by a provision of the Bribery Amendment Act 1958, which conflicted with a provision of the Constitution. The 1958 Act was not endorsed with the requisite Speaker’s certificate and was not shown to have been passed by a 2/3 majority. Held: The orders made against the appellant were null and void. The persons composing the tribunal had been appointed under an invalid statute. Lord Pearce said: “When a sovereign Parliament has purported to enact a bill and it has received the Royal Assent, is it a valid Act in the course of whose passing there was a procedural defect, or is it an invalid Act which Parliament had no power to pass in that manner?” The passages he quoted from McCawley’s case: “showed clearly that the Board in McCawley’s case took the view, which commends itself to the Board in the present case, that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is ‘uncontrolled,” as the board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with; and the alteration or amendment may include the change or abolition of these very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process.” and “No question of sovereignty arises. A parliament does not cease to be sovereign whenever its component members fail to produce among them a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is not passed by a two-thirds majority. The limitation thus imposed on some lesser majority of members does not  13 limit the sovereign power of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority.” Lord Pearce rejected the proposition that: ‘a legislature, once established, has some inherent power, derived from the mere fact of its establishment, to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process.’ 3) No person or body_ including a court of law_ may question the validity of Parliament’s enactments British Courts have considered, since the Glorious Revolution of 1688 and the consecration of the sovereignty of Parliament, that it’s impossible for them to examine the validity of an Act of Parliament and to refuse to give it effect. The Queen’s Bench stated thus, in its decision Ex parte Canon Selwyn (1872), a case that raised the question of the validity of the monarch’s assent to the Irish Church Disestablishment, that "An act of the legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce a judgement as to the validity of an act of Parliament" (same idea in Madzimbamuto v Lardner-Burke and in Manuel v Attorney-General ). The jurisdictional immunity thus recognised to the statutes concerns of course a possible incompatibility with substantive rules. That was clearly reminded by the House of Lords in its decision R (on the application of Jackson) v Attorney General. R (on the application of Jackson) v Attorney General : The claimants argued that the Parliament Act 1949 wasn’t a valid Act of Parliament; having been passed under the procedure set out in the Parliament Act 1911 and that consequently the Hunting Act 2004 (which was enacted under the procedure set out in the Parliament Act 1949) wasn’t a valid Act of Parliament. The Court held (i) that the proceedings were constitutionally legitimate, since the courts weren’t investigating the internal workings of Parliament but were determining whether the 1949 and 2004 Acts were enacted law; (ii) that statutes passed under the 1911 Act procedure weren’t delegated legislation but were expressly stated to be “Acts of Parliament” (Parliament Act 1911, s. 2(1)) and that expression had been consciously preferred by the legislature to alternative expressions; (iii) that there were express restrictions in the 1911 Act to the legislative competence of the monarch and House of Commons alone (a Bill to extend the duration of Parliament being excluded) and there was no room to imply further exceptions or to hold that only modest changes could be made under the Parliament Act procedure; (iv) that there was no prohibition in the 1911 Act on Parliament as constituted under that Act from enlarging its own powers and accordingly the Hunting Act 2004 was a valid Act of Parliament. Such immunity isn’t limited to an incompatibility with substantive rules, but also concerns procedural ones. That’s why if a Court has a doubt about the legislative nature of a text it has to apply, it may only check it has been appended of the traditional promulgation formula ("Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows"14). This Enrolled Bill Rule, qualified by H.L.A. Hart of “ultimate rule of recognition” (deployed by Courts as a means of identifying what are valid rules), dates back to a decision of the High Court of Chancery in The Prince's Case. It’s, on the other hand, for a Court impossible to check whether such a statute was passed in due respect of the provisions of the Standing Orders of either House of Parliament: judgement of the House of Lords 14 That formula becomes, in case of recourse to the Parliament Acts 1911 and 1949, "Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Commons, in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows".  14 Edinburgh and Dalkeith Railway Company v Wauchope. “I can’t either check whether the MPs or the Lords have not been deceived or mislead while the Bill was in discussion” (see, about a Private Bill, the judgment of the House of Lords British Railways Board v Pickin )15. Edinburgh and Dalkeith Railway Company v Wauchope : The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first, they sought to collect a toll, but this proved unprofitable. The defendant sought payment for the carrying of passengers. The appellant said if he had any right to claim such, he had lost it after many years of allowing passengers to cross his land without charge. Held: The respondent succeeded: ‘He cannot put an end to a right conferred by Act of Parliament, merely by the non-exercise of it for some years. And ‘There is little doubt that the provisions of the Act are ambiguous and inaccurate; but… Mr. Wauchope is entitled to the sum of one halfpenny per ton upon the weight of the carriage with the addition of the passengers. And if what has been stated at the bar is correct in fact, namely, that the directors of the company have actually paid him at the rate upon small parcels under five hundred weight, I must say that they have themselves put this very construction upon one part of the.. Act, and cannot be surprised that we have applied it to another.’ Irregularity in the conduct of parliamentary business is a matter for Parliament, not the courts. Lord Campbell said: “All that a Court of Justice can do is look to the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through both Houses”. British Railways Board v Pickin : It was alleged that the respondent had misled Parliament to secure the passing of a private Bill. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned. Held: When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. Lord Morris of Borth-y-Gest said: “It must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed. Clear pronouncements on the law are to be found in a stream of authorities in the 19th century” and “it is the function of the courts to administer the laws which Parliament has enacted. In the processes of Parliament there will be much consideration whether bill should or should not in one form or another become an enactment. When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the statute book at all.” Lord Simon of Glaisdale: “It is well known that in the past there have been dangerous strains between the law courts and Parliament-dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts 15 See also, the judgement of the Court of Common Pleas Lee v Bude & Torrington Junction Railway Company.  15 have each been astute to respect the sphere of action and the privileges of the other-Parliament, for example, by its sub judice rule, the courts by taking care to exclude evidence which might amount to infringement of parliamentary privilege (for a recent example, see Dingle v Associated Newspapers Ltd 2 QB 405)… A further practical consideration is that if there is evidence that Parliament may have been misled into an enactment, Parliament might well-indeed, would be likely to-wish to conduct its own enquiry. It would be unthinkable that two enquiries-one parliamentary and the other forensic-should proceed concurrently, conceivably arriving at different conclusions; and a parliamentary examination of parliamentary procedures and of the actions and understandings of officers of Parliament would seem to be clearly more satisfactory than one conducted in a court of law quite apart from considerations of parliamentary privilege.” Lord Reid: “The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its standing orders perform these functions. Any attempt to prove that they were misled by fraud or otherwise would necessarily involve an enquiry into the manner in which they performed their functions in dealing with the Bill which became the British Railways Act 1968.” and “For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict and I would only support it if compelled to do so by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation.” Such a situation, however, only dates back to the Glorious Revolution. During the reign of James I, we can find, indeed, judgements the content of which is quite different. The most famous of those judgements was rendered by the Court of Common Pleas in Doctor Bonham’s Case. Its Chief Justice, Sir Edward Coke, wrote then, anticipating Chief Justice Marshall’s famous formula in Marbury v. Madison (1803) about the relations between the US federal constitution and statutes passed by the federal Congress, that "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 or reason, or repugnant or impossible to be performed, the Common Law will control it and adjudge such act to be void". Coke’s famous dictum was confirmed by his successor as Chief Justice of the Court of Common Pleas, Henry Hobart, in Day v Savadge and Sheffield v Radcliffe. It must be noted that in R (on the application of Jackson) v Attorney General , Lords Steyn and Hope of Craighead as well as Baroness Hale of Richmond declared obiter that, in exceptional circumstances, if Parliament passed a statute subverting the rule of law, for example by removing judicial review of all governmental actions, it might be the duty of courts to refuse to enforce such provisions and to disapply them. Lord Hope reasserted that point of view in AXA General Insurance Ltd , and was approved by Lord Reed who added that Parliament shouldn’t be left free to abrogate fundamental rights. B) The limits to Parliamentary Sovereignty Parliamentary sovereignty prevents judicial review16 of primary legislation passed by Parliament. However, in the late 20th and early 21st centuries, the notion of parliamentary supremacy was modified under the influence of four principal sources. N.B. A Court may de facto, under the cover of statutory construction, deprive any statutory provision of its effect. Anisminic Ltd v Foreign Compensation Commission ): Judicial review may be excluded by a legislative provision, but such exclusion must be worded in a very explicit way. If the Court doesn’t identify 16 Judicial review is the power of the Courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher authority, such as the terms of a written constitution. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the Judiciary is one of several branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from State to State.  16 such an ouster clause, it will declare an application for judicial review still possible. For a recent illustration, R (Evans) v Attorney General where the use of a ministerial veto power rooted in the Freedom of Information Act 2000 deployed to override a judgment of the Upper Tribunal is quashed, after that power was construed so narrowly as to rend it exercisable only in extremely narrow and unlikely circumstances. 1) The use of referendums Referendum is a legal device of direct democracy. Rather than letting its representatives take a decision in its stead, the people takes it itself through a popular vote. As the UK has been known, since Edmund Burke, as the archetype of the representative political system, it’s hardly surprising that the use of referendum is very uncommon. Actually, until 1973, no referendum had ever been organised either regionally or at a national level. The question had been debated at the end of the 19th century at the time of the Home rule debate (=self-government for Ireland), but to no avail. The first referendum took place, in 1973, in Northern Ireland, and asked whether that province should remain part of the UK or join the Republic of Ireland. The electorate was asked to indicate: "Do you want Northern Ireland to remain part of the United Kingdom?" or "Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom?" Choice Vote Percentage Proposal 1 591,820 98.9% Proposal 2 6, 463 1.1% Electorate: 1,030,084 in 1973 Total votes: 604,256 58.66% of Electorate Valid votes: 598,283 99.01% of Total votes Spoiled votes: 5,973 0.99% of Total votes Non-voters: 41.34% of Electorate 425,828 The vote resulted in an overwhelming majority of those who voted stating they wished to remain in the UK. The nationalist boycott contributed to a turnout of only 58.7% of the electorate. In addition to taking a majority of votes cast, the UK option received the support of 57.5% of the total electorate. According to the BBC, less than 1% of the Catholic population turned out to vote Three sorts of referendum took place since then. Some took place before the enactment of a law (pre- legislative referendums of 1997 on the devolution in Scotland, Northern Ireland, Wales), others after that enactment, but before the adopted text takes its full effect (post-legislative referendums of 1979 on the  17 devolution in Scotland17 and Wales18), others eventually to allow the coming into force of enacted legislative provisions not yet active (Welsh referendum of 201119). The European Communities membership referendum of 197520, the Alternative vote (AV)21 referendum of 201122, and the EU membership referendum of 201623 are the only ones to have been held at a national level. Even if the results of those referendums are merely advisory (in no way binding) to preserve the fiction of the ultimate Parliamentary sovereignty, they have to be considered as a limit on the legislative supremacy. If a referendum results indeed in a substantial majority in favor or against the proposal, and if the results are well publicized, it may be influential, and it may therefore be difficult for the Cabinet and for the Parliament to disregard them. All of these referendums were positive, except those of 1979, 2011 and 2016. 2) The devolution of power to regional assemblies in Scotland, Wales and Northern Ireland Devolution marks an important step in the questioning process of the traditional Diceyan vision of Parliamentary sovereignty. Parliament no longer enjoys an absolute monopoly on the enacting of primary legislation. On the contrary, such ability is recognised to the elected assemblies of the three devolved regions within the areas that have been devolved to them (see below, developments about devolution). Technically speaking, as the system remains devolved and not federal, the powers of these assemblies stem from the UK Parliament, and may therefore be suspended or abrogated by it. It has been the case in Northern Ireland between 1973 & 1998, when the devolved authorities of the province (established by the Government of Ireland Act 1920) were suppressed and replaced by direct rule (Northern Ireland Constitution Act 1973). The Westminster Parliament could therefore use its sovereignty to repeal devolution or to amend/abrogate a statute passed by a regional assembly under the framework of its devolved attributions. Politically however, one can wonder whether a government & its majority in the House of Commons will ever be ready to pay the political price of a restoration of the ancient primary legislation monopoly or of the passing of a statute in a devolved matter without a prior agreement of the regional assembly concerned. 3) The primacy of European rules 17 The result was a narrow majority in favor of devolution. However, Parliament had set a condition that 40% of the registered electorate should vote "Yes" in order to make it valid. Thus, despite a turnout of over 60%, normally regarded as a high proportion of voters, devolution was not enacted. The Scotland Act 1978 was repealed in March 1979 by a vote of 301-206 in the UK House of Commons. 18 The no obtained 79, 7% of the votes, with a turnout of only 58, 8%. 19 The turnout was 35,4% with 517,132 votes (63,49%) in favour and 297,380 (36,51%) against increased legislative power transferred from the UK parliament in Westminster to the National Assembly for Wales. 20 Harold Wilson was elected, in February 1974, in a minority Labour government, gaining a majority in another election, shortly afterwards, in October 1974. It was a manifesto pledge, in the general election of February 1974, for a Labour government to re-negotiate better terms for Britain in the EEC, and then hold a referendum on whether Britain should stay in the EEC on the new terms. On 9 April 1975, the House of Commons voted 396 (70%) to 170 (30%) in favor of retaining the Common Market on the new terms negotiated by Wilson's government between April 1974 and March 1975. At the referendum, Yes got 67, 2% of the votes with a turnout of 64, 5%. 21 It is a voting system used to elect one winner from a pool of candidates using preferential voting. Voters rank candidates in order of preference, and their ballots are counted as one vote for their first choice candidate. If a candidate secures a majority of votes cast, that candidate wins. Otherwise, the candidate with the fewest votes is eliminated. A new round of counting takes place, with each ballot counted as one vote for the advancing candidate who is ranked highest on that ballot. This process continues until the winning candidate receives a majority of the vote against the remaining candidates. 22 The alternative vote referendum, as part of the Conservative-Liberal Democrat Coalition agreement drawn up after the 2010 General election, was held on Thursday 5 May 2011 to choose the method of electing MPs at subsequent general elections. It concerned whether to replace the present “first-past-the- post” (simple plurality) system with the “alternative vote (AV)” method. The proposal to introduce AV was rejected by the electorate (67,9%). 23 The question asked to the electorate was: Should the UK remain a member of the European Union or leave the EU? Held on June 23rd 2016, the turnout was 72.21%, the vote in favor of the UK leaving the EU winning with 17 410 742 (51,89%).  18 That primacy used to concern, before 2020, the EU Law rules which have two main characteristics; direct applicability in member States legal systems (if the EU norm concerned is absolute, unconditional & precise, it can be invoked before any domestic Court and has to be enforced by that Court: NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Nederlandse administratie der belastingen ) and primacy (member States have restricted their own legislative powers, and theirs courts are bound to give effect to directly effective EU law even if it’s incompatible with their national law, including their constitutional law: Costa v ENEL ). The incorporation of past and future EU rules had been made possible in the UK by the ECA 1972. The result was that a UK Act of Parliament or other law found incompatible with EU law couldn’t be given effect by English courts, which had to give effect instead to the EU law. That rule applied even if the statute was posterior to the EU norm, the implied repeal doctrine being dropped in that case. Doubt on that aspect of primacy in English Law had been dissipated by the HL in Factortame Ltd v Secretary of State for Transport (n° 2) following a preliminary ruling of the ECJ on a reference of the HL in R v Secretary of State for Transport, ex parte Factortame Ltd )24. The EU's Common Fisheries Policy began in 1970. Its aims was the creation of a common market for fisheries products by providing for free access to the waters of all EU States and introducing structural funds to ensure modernisation of the sector. In 1976, it was agreed that, as from 1 January the following year, Member States would extend the limit of their fishing zones to a distance of 200 nautical miles (370 km) from their coastlines. In 1980, the EU concluded a fisheries agreement with Spain which gave the latter (which had the largest fishing fleet in Europe) limited rights to fish in the waters of the Member States. In 1983, concerns over the effect that equality of access might have on fishing stocks led to the introduction of certain controls, notably the concept of “total allowable catches” which set maximum quotas of fish which could be caught by each Member State. Meanwhile, from 1980, Spanish fishermen began to infiltrate the UK fishing market by taking advantage of lax fishing vessel registration requirements contained in the Merchant Shipping Act 1894 which, although prohibiting ownership of vessels by non-UK nationals, allowed UK registered companies to be registered as the owners. Amongst the early beneficiaries of the 1894 Act was Factortame Limited, a company whose directors were Joseph J L Couceiro, John A Couceiro and Ken L Couceiro, all Spanish nationals resident and domiciled in Spain. The company, together with others whose directors and shareholders were mostly Spanish nationals, re- registered 53 vessels which had formerly flown the Spanish flag as British fishing vessels under the 1894 Act. They also acquired 42 existing British vessels with a view to using them in the fishing zone. Most of these vessels landed their catches in Spain, but as the fish were caught in UK waters, they counted against the UK fishing quota – a practice known as "quota hopping". The British government sought to put an end to this practice and enacted a series of measures which proved largely ineffective. In 1988, the Merchant Shipping Act and the Merchant Shipping Act (Registration of Fishing Vessels) Regulations were introduced, replacing the system of registration contained in the 1894 Act with a new system under which a vessel could only be registered if it had "a genuine and substantial connection" with the UK. For this to be the case, three conditions had to be fulfilled: (i) the vessel must be British-owned; (ii) the vessel had to be managed and its operations had to be directed and controlled from the UK; and (iii) any charterer, manager or operator had to be a qualified person or company. A "qualified person or company" was a person who was a British citizen resident and domiciled in the UK or a company which 24 For another example of disapplication of a statutory provision for breach of a EU norm, Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Libya v Janah (finding the State Immunity Act 1978 since it prevents all employees of foreign embassies bringing claims for compensation against employer states regardless of the nature of the employee’s work in violation of the right to a fair trial under art. 47 of the Charter of Fundamental Rights of the European Union.  19 was incorporated in the UK and had its principal place of business there having at least 75% of its shares owned by, and at least 75% of its directors being, "qualified persons". As from 31 March 1989, fishing vessel registrations under the 1894 Act would lapse and the owners would be required to re-register under the 1988 Act. None of Factortame's vessels could satisfy the new requirements and an action for judicial review was brought in December 1988. Factortame I Factortame Ltd sought, first, a preliminary injunction declaring that the offending part of the 1988 Act could not be applied to them on the grounds that such application would be contrary to directly effective rights under EU law, specifically the right not to be discriminated against on the grounds of nationality (Treaty of Rome, art. 7), the right of individuals and companies to establish themselves in business anywhere in the EU (art. 43–48), and the right to participate in the capital of companies situated in another Member State (art. 294). The claimants also demanded an order of prohibition preventing the Secretary of State from treating its registrations under the 1894 Act as having ceased. The UK government argued that the registration requirements were intended to ensure that fishing vessels flying the British flag had a genuine link with the UK. It maintained that international law entitled each State to determine the conditions under which a ship might fly its flag and that Community law had not removed that right. It was also contended that the 1988 Act was consistent with the Community policy on fisheries. On 10 March 1989, a High Court Divisional Court referred the matter to the ECJ for a preliminary ruling under Art. 234 of the Treaty of Rome asking whether requirements as to nationality, domicile and control imposed by a Member State as conditions for the registration of fishing vessels were compatible with Community law. At the same time, the Court granted an injunction against the application of the 1988 Act pending a ruling by the ECJ. Giving his judgment, Lord Justice Neill stated that although Community law is part of English Law and prevails in the event of a conflict, it was open to argument whether a conflict existed in this case; a national court would have to take a decision which preserves the status quo ante. An appeal was lodged against the decision. The Court of Appeal reversed DC’s decision on 22 March 1989 on the basis that although a national court was obliged to give effect to Community law, it was not obliged "to override national law in favour of what is no more than an alleged or putative Community right". Furthermore, it did not believe that the DC had "acknowledged the constitutional enormity, as the law stands, of requiring a Secretary of State to act contrary to the clearly expressed will of Parliament when the unlawfulness of that expression has yet to be established." The DC would not, according to the court, have jurisdiction to grant an injunction until the claimants had succeeded before the ECJ. The case was brought before the HL on 18 May 1989 which upheld the decision of the Court of Appeal on the grounds that English law did not contain any rule allowing a preliminary injunction against the application of a statute According to Lord Bridge, two obstacles stood in the way of the granting of the injunction. Firstly, the relief sought required the Court to order positive action in the shape of the disapplication of the 1988 Act and the application of the 1894 Act; were Factortame not to succeed before the ECJ, the HL would have "conferred upon them rights directly contrary to Parliament’s sovereign will". Secondly, the Court had no jurisdiction to grant an interim injunction against the Crown. Nevertheless, Lord Bridge did accept that each of these obstacles was subject to any contrary Community law requirement. This required the HL to determine whether, regardless of the position in domestic law, there existed an overriding principle of Community law imposing an obligation on a national Court, faced with a seriously arguable claim to rights having direct effect under Community law, to grant interim relief. Lord Bridge concluded that as there was no clear authority on this question, a decision from the ECJ was necessary to enable the Law Lords to give judgment. The House was, in any event, obliged to request a preliminary ruling under Art. 234 EC which obliges Courts "against whose decisions there is no judicial remedy under national law" to make a  20 reference. This request for a preliminary ruling was in addition to that already made by the DC on the compatibility of the 1988 Act with Community law. The action was lodged at the ECJ on 10 July 1989 with the request that it deal with the matter quickly which it indeed did, giving the case priority over others. The whole matter had up until then proceeded with great speed, taking only six months from its commencement before the DC to the HL's judgment. The questions posed essentially asked whether, in the circumstances of the case, Community law overrode English law and either empowered or obliged UK courts to grant the injunction claimed by Factortame. On 19 June 1990, the ECJ gave its ruling, rephrasing the question posed as "whether a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law, must disapply that rule". Following the Advocate-General's opinion, the ECJ held that a national court, in fact, has a duty to grant interim relief to safeguard alleged Community rights of individuals until the decision of the ECJ on the interpretation of Community law is available, and where a rule of national law would deny such relief, to set aside that rule. The basis of such a duty lies in the nature and object of directly effective Community law rights which are intended to be fully effective throughout the EU, and where, in order to safeguard such a right, it is necessary to grant interim measures, a national court must do so. This is especially true where a national court is awaiting a clarification or interpretation of the right claimed by the ECJ. Factortame II On 11 October 1990, the HL gave its judgment in the light of the ECJ's ruling and granted an injunction in favour of Factortame. Three principal issues emerged from their judgment: the availability of interim relief against the Crown, the basis on which such relief can be granted, and the impact of the ruling on Parliamentary sovereignty. Lord Goff acknowledged that, as a matter of Community law, interim relief had to be available in principle against the Crown, and the basis for granting it lay in section 37 of the Supreme Court Act 1981. Two factors influenced the HL. Firstly, the likelihood that Factortame would suffer hardship and loss, were relief not to be allowed. Secondly, the prospects of Factortame succeeding in a full trial of the case once the ECJ had given its ruling on the compatibility of the 1988 Act; in this regard, the HL took into account indications from the ECJ's first ruling that Factortame's arguments had 'considerable force'. Lord Goff, however, emphasized that the courts wouldn’t, in other cases, readily or easily grant an injunction against the Crown which effectively prevents the Crown from applying national law. Addressing the public criticism expressed following the ECJ's ruling and the alleged erosion of Parliamentary sovereignty, Lord Bridge remarked that such comments were "based on a misconception", and that under the ECA 1972, it had "always been clear that it was the duty of a United Kingdom court when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law." In the same way that Parliament had introduced legislation to remedy areas of UK law which didn’t meet the standards set by EU directives, the HL was now accomplishing the same task in giving judgment for Factortame. There was nothing new, in this respect, in recognising the supremacy of EU law in the areas in which it applies. These comments were perceived as revolutionary, in that they suggest that Parliament has, in passing the ECA 1972, managed to bind its successors from repealing the Act impliedly. It had previously been thought that no Parliament could ever bind its successors in such a way. If two statutes conflicted, the traditional approach would have been to apply the later statute on the basis that the inconsistent parts of the earlier statute had been repealed. Nevertheless, there’s no restriction on the ability of Parliament to expressly repeal the ECA 1972. Furthermore, the case doesn’t constitute a breach of Parliamentary sovereignty. The Merchant Shipping Act 1988 was not a purposeful and direct conflict with EC law, but was instead an attempt to give effect to the fishing quotas required under EC law. Therefore, the courts were not striking down a domestic Act of Parliament, but were instead attempting  21 to interpret legislation in a manner compatible with the Treaty obligations that arise under the ECA 1972. However, in the case of Macarthys v Smith , Lord Denning suggested that, should such an event occur, the courts would be obliged to obey the domestic law over the European. In that case, Lord Bridge declared that "By virtue of section 2(4) of the Act of 1972, Part II of the Act of 1988 is to be construed and take effect subject to directly enforceable Community rights and those rights are, by section 2(1) of the Act of 1972, to be recognised and available in law, and enforced, allowed and followed accordingly [...]. This has precisely the same effect as if a section were incorporated in Part II of the Act of 1988 which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member State of the EEC. Thus, it’s common ground that, in so far as the applicants succeed before the ECJ in obtaining a ruling in support of the rights which they claim, those rights will prevail over the restrictions imposed on registration of British vessels if part II of the Act of 1988 and the Divisional Court, in the final determination of the application for judicial review, be obliged to make appropriate declarations to give effect to those rights". The primacy of EU norms in the British legal systems wasn’t, nevertheless, without limit. It was indeed the result of a self-denying ordinance of a sovereign Parliament that kept the right to change its mind. Parliament could have therefore decided to use its sovereignty to ignore a provision of EU law. In Garland v British Rail Engineering Ltd , the HL, indeed, observed that Parliament kept the power, through express statutory provisions, to derogate to EC Law, echoing Lord Denning’s famous obiter, in the Court of appeal case Macarthys v Smith , in which he said that "In construing our statute, we are entitled to look to the Treaty as an aid to its construction, and even more, not only as an aid, but also as an overriding force. If on close investigation, it should appear that our legislation is deficient, then it is our bounden duty to give priority to Community law. Such is the result of section 2 (1) and (4) of the European Communities Act 1972. Thus far, I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act – with the intention of repudiating the Treaty or any provision in it – or intentionally of acting inconsistently with it – and says so in express terms – then I should have thought that it would be the duty of our Courts to follow the statute of our Parliament". The European Union Act 2011 had echoed that statement, in its section 18, reminding that what a sovereign Parliament can do, a sovereign Parliament can always undo: "Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the ECA 1972) falls to be recognised and available in law in the UK only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act." More radically, Parliament could use its sovereignty to put an end to the primacy of EU norms by withdrawing the UK from the EU, the ECA 1972 being not entrenched against such an express repeal. Following the referendum of June 23rd 2016, that’s precisely what it did with the European Union (Withdrawal) Act 2018, with effect in January 2020, followed by the European Union (Withdrawal Agreement) Act 2020 incorporating into domestic law the Brexit Agreement signed with the EU on January 24th 2020. Primacy of European rules still concerns the ECHR. Incorporated by the HRA 1998 (into force on October 2nd 2000), that treaty provides limits to the sovereignty of Parliament. Section 19 of the HRA requires that, for every Government Bill, the Minister in charge in each House should make, before the second reading, a written statement that, in his/her view, the Bill's provisions are compatible with the Convention rights. Alternatively, if s/he is not able to provide that personal assurance, s/ he must state that, nevertheless, the Government wishes the House to proceed with the Bill. Section 3, for its part, makes it unlawful for public authorities to act in a manner incompatible with a right under the ECHR and requires legislation to be interpreted compatibly with the ECHR rights, so far as it is  22 possible to do so ("So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”). Accordingly, a Court must read any statute passed by Parliament so as to uphold Convention rights, where this is possible. Three types of judicial interpretation: reading in, out and down. "Reading in" refers to adding in words that aren’t present in the statute so as to ensure compliance with ECHR rights, and "reading out" removing words in a statute to do so. These processes had already been implemented with reference to the implementation of EU legislation, so as to ensure compliance of domestic law with EU Law. Although accepted with secondary legislation, they remain controversial with primary legislation, since Parliament would have included or omitted such words if it had had such an intent; reading in or out words would therefore conflict with parliamentary intention. Courts have, however, accepted these powers, and during the passing of the HRA, it was agreed that the courts would have such a power. "Reading down" involves choosing an interpretation that is compatible, where more than one is strictly possible. The line between interpretation and judge-made legislation is fine. Lord Woolf observed in Poplar Housing and Regeneration Community Association Ltd v Donoghue : “The most difficult task which Courts face is distinguishing between legislation and interpretation. Here practical experience of seeking to apply s 3 will provide the best guide. However, if it is necessary in order to obtain compliance to radically alter the effect of legislation this will be an indication that more than interpretation is involved.” Illustration of a reading down interpretation: Ghaidan v Godin-Mendoza. The case was concerned with the interpretation of the Rent Act 1977 following the HRA 1998. The Rent Act 1977 creates protected tenancies which give tenants very favourable rights, including in practice low rents. Under the legislation, the protected tenancy passes, on the death of the protected tenant, to the surviving spouse living in the house or the person living with the protected tenant “as his or her wife or husband”. Before the HRA 1998 was passed, this was interpreted by the HL as not including homosexual relationships. In Ghaidan, it was successfully argued that the 1977 Act had to be interpreted, following the HRA 1998, in a way that didn’t discriminate against homosexuals. Where it’s impossible to read a Prerogative rule or a subordinate legislation in a Convention compliant manner, any judge may quash it on a judicial review. Where it’s impossible to read a primary legislation or an order in Council made under the Prerogative in such a way, the only sanction available to the Courts is to make a Declaration of Incompatibility in respect of it, in virtue of Section 4 of the HRA. Same thing in case of a subordinate piece of legislation when the incompatibility isn’t intrinsic, but directly results from the parent statute the author of the subordinate legislation wished to enforce. As of 2019, 27 definitive declarations of incompatibility have been issued. Examples of Declarations of incompatibility In R (on the application Anderson) v Secretary of State for the Home Department 3 WLR 1800, the HL found that assigning the decision over the tariff of a mandatory life sentence to the Home Secretary was in breach of Article 6 of the Convention (fair hearing by independent and impartial tribunal). As fixing of tariff was required to be set by such tribunal, and Secretary of State neither independent of executive nor a tribunal the statutory provision incompatible with Convention. As that incompatibility could not be removed merely by interpretation of the statutory provision enabling the Secretary of State to fix tariff period to be served, issuing a declaration was necessary. In Bellinger v Bellinger UKHL 21, a post-operative male-to-female transsexual appealed against a decision that she was not validly married to her husband by virtue of the fact that, at law, she was still treated as a man. Though their Lordships refused to make a declaration that the marriage was valid at its inception and was subsisting, they declared section 11(c) of the Matrimonial Causes Act 1973 incompatible with Articles 8 (private and family life) and 12 (marriage) ECHR in so far as it made no provision for the recognition of gender reassignment.  23 In A v Secretary of State for the Home Department (No 2) UKHL 71, the detention of foreign nationals under the Anti-Terrorist, Crime and Security Act 2001 was ruled to be in contravention of Article 14 of the Convention, because they could be detained in circumstances British nationals could not, discriminating on the grounds of nationality. This discrimination was explicit and could not be interpreted to follow the Convention using Section 3. Accordingly, a declaration of incompatibility was made. The power to do so is restricted to senior Courts (Courts Martial Appeal Court, High Court of England & Wales/NI, High Court of Justiciary (Scotland), Court of appeal of England & Wales/NI, Court of Protection in particular roles, Supreme Court, Judicial Committee of the Privy Council). Such a declaration has no direct impact upon the continuing force of the legislation, but it’s likely to produce public pressure upon the government to remove the incompatibility. It also strengthens the case of a claimant armed with such a decision from the domestic Courts in any subsequent appeal to the ECtHR in Strasbourg. In order to provide swift compliance with the Convention (declaration of incompatibility or decision of the ECtHR), the HRA allows ministers to take remedial action to amend even offending primary legislation via subordinate legislation (fast track legislative procedure or remedial order). It’s therefore possible for the government to leave a statute incompatible with ECHR untouched, but at the risks of a condemnation by the ECtHR (for an illustration, refusal by government & Parliament to amend the automatic disenfranchisement of all prisoners found in breach of the Convention by R (on the application of Chester) v Secretary of State for Justice (Scotland) ). For an illustration of such an order, British nationality Act 1981 (Remedial) Order 2018 removing the incompatibility of section 41A of the British Nationality Act 1981 with Convention rights (which imposed a good character requirement for certain British nationality applications from those born overseas to a British parent and had been found incompatible avec the ECHR by Johnson v Secretary of State for the Home Department ). Section 3(2)(a) extends the scope of section 3 to past and future Acts of Parliament in addition to present legislation (prospective Henry VIII’s clause). It therefore contradicts the usual policy of implied repeal. The HRA must therefore be explicitly (or "expressly") repealed by an Act of Parliament deliberately doing so, not merely by introducing contradictory legislation. The act therefore carries an additional normative force, and has been considered constitutional in character as a result (partial entrenchment). 4) The emergence of constitutional statutes Two decisions must be considered. The first one is a decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Simms , about a prisoner’s right to communicate with journalists with a view to challenging his conviction for a crime. In his opinion, Lord Hoffmann stated that "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The HRA 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. 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... In the absence of express language or necessary 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 UK, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of legislature is expressly limited b