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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

Ellen Street Estates v Minister of Health [1934] 1 KB 590; [1934] All ER Rep 385; 150 LT 468

SCRUTTON LJ:....The second point...seems to me even more impossible. It is this: the Acquisition of Land (Assessment of Compensation) Act, 1919, lays down certain principles on which compensation for land taken is to be assessed. S.7(1) says this: "The provisions of the Act..or order by which the land is authorised to be acquired, or of any Act incorporated therewith, shall, in relation to the matters dealt with in this Act, have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect." [The] contention is that if in a later Act provisions are found as to the compensation to be paid for land which are inconsistent with those contained in the Act of 1919, the later provisions are to have no effect. Such a contention involves this proposition, that no subsequent Parliament by enacting a provision inconsistent with the Act of 1919 can give any effect to the words it uses. S.46(1) of the Housing Act, 1925, says this: "Where land included in any improvement or reconstruction scheme....is acquired compulsorily," certain provisions as to compensation shall apply. These are inconsistent with those contained in the Acquisition of Land (Assessment of Compensation) Act, 1919, and then s.46(2) of the Act of 1925 provides; "Subject as aforesaid, the compensation to be paid for such land shall be assessed in accordance with the Acquisition of Land (Assessment of Compensation) Act 1919." I asked [counsel] what these last quoted words mean, and he replied they mean nothing. That is absolutely contrary to the constitutional position that Parliament can alter an Act previously passed, and it can do so by repealing in terms the previous Act. [Counsel] agrees that it may do so - and it can do it also in another way - namely, by enacting a provision which is clearly inconsistent with the previous Act. In Maxwell's Interpretation of Statutes I find three or four pages devoted to cases in which Parliament, without using the word "repeal," has effected the same result by enacting a section inconsistent with an earlier provision.

MAUGHAM LJ:....The second point, which raises a question of constitutional law, is based upon the terms of s.7 of the Acquisition of Land (Assessment of Compensation) Act, 1919.... [Counsel] contends that as regards subsequent legislation, in the absence of an express repeal of this provision of the Acquisition of Land (Assessment of Compensation) Act, 1919, the provisions of that Act must apply, however clear the intention of Parliament, as expressed in the subsequent Act, is to modify the provisions of the Act of 1919. I am quite unable to accept that view. 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 subjectmatter 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. This second point also fails.