The legal status of the Parliament Act, 1949, may also have an important bearing on our case. Some respected constitutional lawyers believe that it is not valid. It purports to enable legislation to be enacted after a year despite the opposition of The House of Lords. But, as Professor Hood Phillips pointed out over 50 years ago, the Act cannot be valid because it was rejected by the House of Lords and no power of amendment was conferred on the House of Commons by the Parliament Act, 1911.
Indeed the Parliament Act 1911 offers no authority to the House of Commons to amend primary legislation at all. And if the Parliament Act 1949 is invalid, so must be much European-led legislation, including most recently the European Parliamentary Election Act, 1999.
Of course, in recent times, the House of Commons has frequently attempted to interfere with the constitution. An attempt was purportedly made to repeal Magna Carta in 1969, when the Statute Laws (Repeal) Act was sneaked through parliament during the moon landings.
It repealed Edward 1’s Confirmation of the Great Charter Act of 1297 - but it did not repeal Magna Carta itself. Yet again, as we understand the legal position, a repeal of a statute which gives effect to common law does not repeal the underlying common law itself. Neither does the distance in time between the two events have any bearing.
If parliament could be held to have repealed Magna Carta it could also be held to have acted unlawful in that, by definition, parliament must have exceeded its powers on that occasion.
On 21 July 1993, the Speaker of The House of Commons issued a reminder to the courts. She said:
“There has of course been no amendment to the Bill of Rights…the house is entitled to expect that the Bill of Rights will be fully respected by all those appearing before the courts.”
Lord Wilberforce, speaking in the House of Lords in 1997 said:
“Perhaps I may remind noble lords of what our essential civil rights, as guaranteed by common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given an effect contrary to international law - an old principle that has been there for years; freedom of expression; and freedom of association …firmly secured already by the common law of this country, and not intended to be superseded or modified by new inter-state obligations…”
We can put it no better than the great John Locke, when he wrote:
“A ruler who violates the law is illegitimate. He has no right to be obeyed. His commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals”.
Ironically, it seems that the only power parliament has is to manufacture criminals. If government, any government, “believes it can do as it wishes without the constraint of a constitution which is enforceable then no-one and nothing is safe.” These are the views of a lawyer who has made a special study of the EU’s corpus juris proposals.
Parliament cannot do as it wishes. There are a great many things parliament cannot do. It cannot sit for more than five years, it cannot permit anyone not elected to speak in its chamber, nor anyone who has not sworn an oath of allegiance, it cannot dissolve itself and it cannot legitimately depose The Queen.
No parliament can bind its successors. This principle is itself a maxim of common law, and has been often restated:
“Acts derogatory to the power of subsequent parliaments bind not”
- Blackstone and Halsbury
Neither can parliament legislate in contravention of the treaties which established the constitution and sovereignty of this nation - a point central to our case. Furthermore, parliament has a duty of care to preserve and protect the rights and freedoms of the people who elected it.
Nor can parliament complete the passage of a bill without the royal assent.
The sovereign, on the other hand, can dissolve parliament - with or without the advice of ministers - and can withhold the royal assent.
Only the sovereign can call for new elections, and only the sovereign can sign treaties. Those powers are the embodiment of the sovereign’s supremacy over parliament. They may, from time to time, be delegated.
Because the sovereign is constitutionally bound to respect the provisions of the Bill of Rights, such royal prerogative has restrictions:
* It cannot be used in an innovatory way. (If this were not so, the executive could dispense with parliament and the judiciary
and become an unlimited tyranny. Any future Attorney General could claim that an edict was part of a treaty and it would become unquestionable.)
*It may not be subversive of the rights and liberties of the subject. (The case of Nichols v. Nichols, 1576, stated "Prerogative is created for the benefit of the people and cannot be exercised to their prejudice".) *It may not be used to suspend or offend against statutes in force. (This comes from the Bill of Rights and the Coronation Oath Act which specifies the following form of words: Archbishop: “Will you solemnly promise and swear to govern the peoples of the United Kingdom...according to their respective laws and customs." Prospective Monarch: "I solemnly promise so to do.")
The limitations of royal prerogative are clear. The Lord High Chancellor Command Paper 3301, 1967, Legal and constitutional implications of UK membership of the European Community: