Skip to main content

Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
    1. Edinburgh and Dalkeith Railway Co v Wauchope (1842) 1 Bell 278; 8 Cl & Fin 710; 8 ER 279.
    2. British Railways Board and Another v Pickin [1974] 1 All ER 608; [1974] AC 765
    3. Ellen Street Estates v Minister of Health [1934] 1 KB 590; [1934] All ER Rep 385; 150 LT 468
    4. Mortensen v Peters (1906) 14 SLT 227
    5. Attorney-General of New South Wales v Trethowan (1931) 44 CLR; (in the Australian High Court on appeal from the Supreme Court of New South Wales).
    6. Harris v Donges (Minister of the Interior) [1952] 1 TLR; (1952) 2 SA 428; in the Appellate Division of the South African Supreme Court.
    7. Bribery Commissioner v Ranasinghe [1965] AC 172; [1964] 2 All ER 785, [1964] 2 WLR 1301
    8. Treaty (Act) of Union 1707
    9. MacCormick v. Lord Advocate (1953) SC 396 - Inner House (first instance)
    10. MacCormick v. Lord Advocate (1953) SC 396 - Court of Session (on appeal)
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Edinburgh and Dalkeith Railway Co v Wauchope (1842) 1 Bell 278; 8 Cl & Fin 710; 8 ER 279.

LORD CAMPBELL....My Lords, I think it right to say a word or two before I sit down, upon the point that has been raised with regard to an act of Parliament being held inoperative by a court of justice because the forms, in respect of an act of Parliament, have not been complied with. There seems great reason to believe that notion has prevailed to a considerable extent in Scotland, for we have it here brought forward as a substantive ground upon which the act of the 4th and 5th William the Fourth could not apply: the language being, that the statute of the 4th and 5th William the Fourth being a private act, and no notice given to the pursuer of the intention to apply for an act of Parliament, and so on. It would appear that that defence was entered into, and the fact was examined into, and an inquiry, whether notice was given to him personally, or by advertisement in the newspapers, and the Lord Ordinary, in the note which he appends to his interlocutor, gives great weight to this. The Lord Ordinary says, "he is by no means satisfied that due parliamentary notice was given to the pursuer previous to the introduction of this last act. Undoubtedly no notice was given to him personally, nor did the public notices announce any intention to take away his existing rights. If, as the Lord Ordinary is disposed to think, these defects imply a failure to intimate the real design in view, he would be strongly inclined to hold in conformity with the principles of Donald, 27th November, 1832, that rights previously established could not be taken away by a private act, of which due notice was not given to the party meant to be injured". Therefore, my Lord Ordinary seems to have been most distinctly of opinion, that if this act did receive that construction, it would clearly take away the right to this tonnage from Mr Wauchope, and would have had that effect if notice had been given to him before the bill was introduced into the House of Commons; but that notice not having been given, it could have no such effect, and therefore the act is wholly inoperative. I must express some surprise that such a notion should have prevailed. It seems to me there is no foundation for it whatever; all that a court of justice can look to is the parliamentary roll; they see that an act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into parliament, what was done previously to its being introduced, or what passed in parliament during the various stages of its progress through both Houses of Parliament. I therefore trust that no such inquiry will hereafter be entered into in Scotland, and that due effect will be given to every act of Parliament, both private as well as public, upon the just construction which appears to arise upon it".