1(a) Powers of the Sovereign
Under the (unwritten) constitution of the United Kingdom, all actions of government are undertaken in the name of the Crown. According to Joseph Chitty:
“The rights of sovereignty, or supreme power, are of a legislative and executive nature, and must, under any form of government, be vested exclusively in a body or bodies, distinct from the people at large” [1820, p.2].
The Queen is therefore part of the legislature which consists of the Crown and the Houses of Lords and Commons. Further, while it was established by the Case of Proclamations (1611), the Bill of Rights 1689 and the Case of Prohibitions (1607) that the monarch has no power to make laws or act in a judicial capacity, the entire administration of justice is conducted in the name of the Queen. In addition, much of government is conducted by the exercise of the Royal Prerogative including the power to declare was and enter into treaties with foreign states. The Queen alone has the power to dissolve Parliament, appoint ministers and assent to bills.
Therefore it may be concluded that although frequently dismissed as a titular head of state, the Queen continues to exercise considerable power within what is in all other respects a truly parliamentary democracy.
1(b) Concern at the Constitutional Position of the Monarch
This dichotomy between the will of the people as expressed through their elected representatives in Parliament and the residual power vested in the Queen who ascend the throne solely on the basis of hereditary entitlement inevitably gives rise to concern as to the potential for misuse of sovereign power.
Typically, Queen Victoria retained the view that she had the ability to dissolve Parliament against the customary advice of her ministers. In the Letters of Queen Victoria, 3rd series, Vol II, pp.297-99, Lord Salisbury warned of the potentially disastrous consequences of such a step with the dismissed party then having to “go to the country” as opponents of the Crown. In reality, constitutional convention dictates that such a step would never be undertaken. It is as unthinkable as the Queen refusing Royal Assent to an Act of Parliament. Similarly, the House of Lords made it clear in Council of Civil Service Unions v Minister of State for Civil Service (1985) – the case in which the prerogative power to withdraw trade union rights from employees at GCHQ was challenged (albeit unsuccessfully) that the courts retained the right to review the exercise of prerogative power.
Thus it may be concluded that while constitutional concerns must exist in theory as to the manner in which the Queen might exercise her power, the reality is that she regards herself as being prevented by convention from so doing.
2) The European Communities Act 1972
Section 2(1) of the European Communities Act 1972 provides:
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties…are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law…[emphasis supplied].
The issue of what will happen if a domestic statute is inconsistent with directly effective Community obligations is specifically addressed by s.2(4):
“…any enactment passed or to be passed [by the Westminster Parliament]…shall be construed and have effect subject to the foregoing provisions of this section.”
Initially, the response of the courts to these provisions was ambivalent. In Felixstowe Dock and Railway Co v British Transport Docks Board (1976), Lord Denning ventured that once a Bill “is passed by Parliament and becomes a statute, that disposes of all discussion about the Treaty. These courts will then have to abide by statute without regard to the Treaty at all.” However, in McCarthys Ltd v Smith (1979), Lord Denning appeared to retreat from this position:
“In construing our statute, we are entitled to look at the Treaty as an aid to its construction: and even more, not only as an aid but an overriding force.”
In Garland v British Rail Engineering Ltd (1983), Lord Diplock expressed the view that anything short of an express statement in a statute that it was intended to be in breach of Community Law would not justify a UK court in finding an inconsistency. However, in Factortame (No.1) (1989) the House of Lords refused to grant interim relief to restrain the operation of the Merchant Shipping Act 1988 on the basis of s.2(4) of the 1972 Act. This was however overturned by the European Court of Justice and led to the decision in Factortame (No.2) (1991) in which Lord Bridge concluded:
“Under the terms of the Act of 1972 it has always been clear that it was the duty of a UK court when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law”.
In Duke v Reliance Systems Ltd (1988) the House of Lords had to consider whether the different retirement ages for men and women in this country was in breach of the Equal Treatment Directive. It was argued that the Sex Discrimination Act 1975 should be construed so as to conform with the Directive. Lord Templeman argued:
“A British court will always be willing and anxious to conclude that United Kingdom law is consistent with Community law. Where an Act is passed for the purpose of giving effect to an obligation imposed by a directive or other instrument a British Court will seldom encounter ay difficulty in concluding that the language of the Act is effective for the intended purpose.”
It may be concluded therefore that despite the initial misgivings described above, the approach of the British courts has been to ensure that European Law will always prevail over inconsistent domestic law by virtue of the operation of the European Communities Act 1972. As will be observed, this has on occasion given rise to a certain degree of mental judicial gymnastics where the statute appears to be inconsistent on its face but the courts have strained to impose an interpretation that will allow at least the pretence of consistency.
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