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.”
