Extracts from our Reply to the Government's Summary Grounds of Defence

Extracts from our Reply to Summary Grounds of Defence

 

“It is not..contrary to first principles of constitutional law to challenge the making of an Act, as Lord Justice Laws observed in the Thoburn case, a later Act does not override a Constitutional Act.  The key Constitutional Acts which are being overridden are the Human Rights Act and still more importantly the 1689 Bill of Rights, which as it was putting into effect the new Constitution agreed in the Constitution and Convention of 1689, known as the Declaration of Right, it cannot properly be overridden by any subsequent Act without a Constitutional Convention or equivalent process, such as a referendum.  The Scottish Laws long held that there is a limit to the constitutional remit of legislation and that there is in effect an over-arching constitutional structure and the Supreme Court, in the Prorogation of Parliament case, followed the Scottish decision, finding that even a Royal Prerogative decision, such as Proroguing Parliament, must be consistent with the over-arching constitutional framework.  And in so far as the Coronavirus Act is not in conformity with the Human Rights Act or the Bill of Rights and Declaration of Rights 1689, it is respectfully submitted that is unconstitutional and illegal, so far as it is in breach of the English Constitution and should be null and void, but in so far as it is in breach of the Human Convention of European Rights then under the Human Rights Act the remedy is as indicated a Declaration of Incompatibility. 

 

So far as the Regulations are concerned and there is an on-going tsunami of Regulations, most being made not under emergency legislation, but instead under the 1984 Act which does not even purport to grant powers to Ministers to override basic constitutional freedoms and liberties.  The Regulations and continuing amendments should be set aside and, whereas the specific regulations have been overtaken, the legal principles remain relevant as the Government is continuing to issue a torrent of Regulations purportedly under the 1984 Act which are constitutionally improper.  It is noted of course that the response to the Claimant’s case rests heavily on the decision of Mr Justice Swift in the Dolan case, for which Permission to Appeal has been granted by Lord Justice Hickinbottom, albeit the hearing before the Court of Appeal has been postponed.  The fact that Permission to Appeal has been granted, it is respectfully submitted, shows that the Mr Justice Swift’s decision is challengeable and is not yet through the process of precedent an inherent part of the law. 

 

So far as Guidance is concerned, the Government has repeatedly issued Guidance which is not an accurate or fair reflection of the Regulations that they have produced and again in the interests of constitutional propriety, the fact that they have now changed the Guidance, that was the target initially of criticism of these proceedings, does not make it a moot point, when the Government is continuing to behave in such a way.”

 

I have also looked again at Lord Justice Law’s Judgment on Thoburn.  I thought that paragraphs 62, 63 and 69 were exceptionally well worth considering and I accordingly copy and quote them in full as follows:-

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (18 February 2002)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html
Cite as: [2002] EWHC 195 (Admin), [2002] 3 WLR 247, [2003] QB 151

 

62. Where does this leave the constitutional position which I have stated? Mr Shrimpton would say that Factortame (No 1) was wrongly decided; and since the point was not argued, there is scope, within the limits of our law of precedent, to depart from it and to hold that implied repeal may bite on the ECA as readily as upon any other statute. I think that would be a wrong turning. My reasons are these. In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms [2000] 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State [1998] AC 539, Leech [1994] QB 198, Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, and Witham [1998] QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.

 

63.Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

 

69. (2) The ECA is a constitutional statute: that is, it cannot be impliedly repealed. (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes. (4) The fundamental legal basis of the United Kingdom's relationship with the EU rests with the domestic, not the European, legal powers. In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the ECA were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case.”