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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

British Railways Board and Another v Pickin [1974] 1 All ER 608; [1974] AC 765

LORD REID:....The respondent's alternative ground of action is not easy to state concisely. He appears to allege that in obtaining the enactment of s.18 of the 1968 Act in their favour the board fraudulently concealed certain matters from Parliament and its officers and thereby misled Parliament into granting this right to them.

....As the respondent's case developed in argument it appeared that he seeks one or other of two methods of relief against s 18. First he says that s 18 confers a benefit on the board and that if he can prove that Parliament was fraudulently misled into enacting this benefit the court can and should disregard the section. And, secondly, he says that even if the court cannot do that and the section has taken effect, the court can on proof that Parliament was so misled nullify the resulting benefit to the board by requiring them to hold in trust for him the benefit which the section has given to the board to his detriment.

The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution, but a detailed argument has been submitted to your Lordships and I must deal with it.

I must make it plain that there has been no attempt to question the general supremacy of Parliament. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice but since the supremacy of Parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete.

The respondent's contention is that there is a difference between a public and a private Act. There are of course great differences between the methods and procedures followed in dealing with public and private bills, and there may be some differences in the methods of construing their provisions. But the respondent argues for a much more fundamental difference. There is little in modern authority that he can rely on.

....In my judgment the law is correctly stated by Lord Campbell in Edinburgh and Dalkeith Railway Co v Wauchope. Mr Wauchope claimed certain wayleaves. The matter was dealt with in a private Act. He appears to have maintained in the Court of Session that the provisions of that Act should not be applied because it had been passed without his having had notice as required by standing orders. This contention was abandoned in this House. Lord Brougham and Lord Cottenham said that want of notice was no ground for holding that the Act did not apply. Lord Campbell based his opinion on more general grounds.

....No doubt this was obiter but so far as I am aware no one since 1842 has doubted that it is a correct statement of the constitutional position.

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 had performed their functions in dealing with the bill which became the British Railways Act 1968.

In whatever form the respondent's case is pleaded he must prove not only that the board acted fraudulently but also that their fraud caused damage to him by causing the enactment of s 18. He could not prove that without an examination of the manner in which the officers of Parliament dealt with the matter. So the court would, or at least might, have to adjudicate on that.

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.

The respondent is entitled to argue that s 18 should be construed in a way favourable to him and for that reason I have refrained from pronouncing on that matter. But he is not entitled to go behind the Act to shew that s.18 should not be enforced. Nor is he entitled to examine proceedings in Parliament in order to shew that the board by fraudulently misleading Parliament caused him loss. I am therefore clearly of opinion that this appeal should be allowed and the judgment of Chapman J restored.

LORD MORRIS OF BORTH-Y-GEST:....The conclusion which I have reached results, in my view, not only from a settled and sustained line of authority which I see no reason to question and which should I think be endorsed but also from the view that any other conclusion would be constitutionally undesirable and impracticable. 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. In Edinburgh and Dalkeith Railway Co v Wauchope points of construction called for decision but in the course of the proceedings a point was taken to the effect that a private Act which affected a vested right could not be made applicable to a person who had had no notice served on him of the introduction of the bill. Though the point was abandoned in this House, Lords Brougham, Cottenham and Campbell felt that it was important to make it clear that any such doctrine was wholly without foundation.

....In pursuance of that pronouncement were the words of Cockburn CJ when in 1859 in Earl of Shrewsbury v Scott ((1859) 6 CBNS 1 at 160) he said:

"These observations illustrate the question which is now before us, and make it clear, that, if an act of parliament, by plain, unambiguous, positive enactment, affects the rights even of parties who were not before the House (those parties being clearly pointed out by the bill, and expressly excepted from the saving clause), it is not for a court of law to consider whether the forms of parliament have been pursued, whether those provisions which the wisdom of either House of parliament has provided for the prevention of any deception on itself, or of injury to the rights of absent parties, have been followed: it is enough for us if the provisions of the act are clear, express, and positive: if they are, we have only to carry the act into effect".

In the earlier case of Waterford Railway Co v Logan the court disallowed a plea that an Act of Parliament was obtained by the fraud of the plaintiffs.

Of equal clarity was the passage in the judgment of Willes J in 1871 when in Lee v Bude and Torrington Junction Railway Co ((1871) LR 6 CP 576 at 582)(in which case it was alleged that Parliament had been induced to pass an Act by fraudulent recitals) he said:

"Are we to act as regents over what is done by parliament with the consent of the Queen, lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them".

In Labrador Company v R ([1893] AC 104 at 123) Lord Hannen in delivering the judgment of the Privy Council said:

"Even if it could be proved that the legislature was deceived, it would not be competent for a court of law to disregard its enactments. If a mistake has been made, the legislature alone can correct it".

This statement of principle was accepted and applied in the judgment of the Privy Council in Hoani Te Heuheu Tukino v Aotea District Maori Land Board ([1941] 2 All ER 93 at 97,[1941] AC 308 at 322) where Viscount Simon LC in delivering the judgment of the board further said:

"It is not open to the court to go behind what has been enacted by the legislature and to inquire how the enactment came to be made, and whether it arose out of incorrect information, or, indeed, out of actual deception by someone on whom it placed reliance. The court must accept the enactment as the law unless and until the legislature itself alters such enactment on being persuaded of its error".

Unless the authority of these pronouncements is for some reason to be eroded there cannot be a triable issue in the courts whether an Act of Parliament was improperly obtained.