In this hypothetical, can the courts disapply primary legislation?

Question

As I understand it, the 2019 general election in the UK was held because of the Early Parliamentary General Election Act 2019.

In this hypothetical, Parliament has passed a statute that imposes a requirement on any future legislation written to trigger a general election: it can only pass the Commons with a 3/5 majority of a quorum. We'll call this Act A.

A few years down the line, a bill to initiate a general election is proposed in the Commons which includes a provision that it can pass the Commons with a simple majority vote while a quorum is present, contrary to Act A. Nevertheless, the bill passes both chambers of Parliament with a simple majority, in accordance with the wording of the aforementioned provision (which does not expressly repeal Act A or make any explicit reference to it, but does state that it only applies to this bill), and it receives Royal Assent to become Act B.

Act B is challenged in court on the basis that it is an unconstitutional act of Parliament, because the requirement of Act A was not met, and the provision that allowed Act B to come into law with a simple majority vote was not law at the time Act B received Royal Assent. Therefore, it should be nullified. But if any court were to strike down Act B, wouldn't that go against parliamentary sovereignty?

Do the dicta in R. (Jackson) v. Attorney General come into the discussion at all? Or would this bill never even be able to get to the stage of Royal Assent?

Answer 1

Bill B is not an Act until it proceeds through Parliament and receives Royal Assent. Therefore it doesn't matter what its provisions say; it must follow the rules described in Act A. If it doesn't, there is no Act B.

It's not a matter of constitutionality, as that has limited meaning when we're talking about Acts of Parliament. It's more that Parliament itself can determine its own processes through Acts, which apply to future Bills before they can become Acts.

There is precedent for this. The Parliament Acts 1911 and 1949 allow the Commons to pass a Bill without the agreement of the Lords, subject to certain conditions and delays. A number of Acts have been passed in this way (including the Parliament Act 1949, which amended the 1911 Act), and their validity has been challenged in court. So far, all the relevant Acts have been found to be valid.

If a court can find that an Act of Parliament is valid, it implies that it could find one invalid. While this could be seen as a court "striking down" an Act, the argument would (I imagine) be made that there was no Act in the first place.

Answer 2

The accepted legal doctrine is that Parliament is Sovereign

That is, Parliament is the supreme authority in England and Wales (its status under Scottish law is different); if Parliament says that it passed an Act then it passed the Act.

R. (Jackson) v. Attorney General is, in many ways, an odd case. First, the AG did not challenge the plaintiffs' standing to bring the case: if he had, the case would have immediately collapsed. Second, the AG did not challenge the court's jurisdiction to inquire into what was, essentially, the internal processes of Parliament: if he had, the case would also have collapsed.

Why the AG didn't raise either of these defences is anyone's guess. However, if they were raised in either R. (Jackson) v. Attorney General or your hypothetical, that would be the end of the matter.

Interestingly, both these challenges would have been fatal to the case even in constitutional Westminster democracies like the US, Canada, Australia etc. Citizens do not have standing to challenge a law unless they have been prejudiced by that law and as this bill had not yet come into effect, no one was affected. Similarly, what goes on in the legislature is beyond the reach of the courts - if Parliament does not follow its own rules, that is a matter for Parliament to deal with; the courts cannot intervene. These are both matters of justicability.

What was considered in R. (Jackson) v. Attorney General was not whether Parliament had followed the specified procedure but whether the 1911 Act created a type of sub-primary legislation (it didn’t). For your hypothetical, where Parliament has agreed that a supermajority is needed, Parliament can always subsequently agree that it isn’t. How they agree this is not justiciable. How Parliament makes decisions is entirely internal and unreviewable.

What happens when laws contradict each other

Courts can and do deal with this situation often and the legal reasoning is pretty well established. First, assume Parliament doesn’t want to make inconsistent laws, second, assume that what they have done most recently is what they want to happen, and third, limit the reading of the second act so that it carves out an exemption to the first. For your hypothetical, it would be read that they need a 2/3 majority except when they decide they don’t.

What the obiter of R. (Jackson) v. Attorney General actually says

It says that there may be circumstances that haven't arisen but might in the future that would lead to courts to place limits on Parliamentary Sovereignty.

The type of circumstances that would trigger this would have to be an extreme attack on Parliamentary democracy itself - like making Boris Johnson Prime Minister for life, extending the term of Parliament to 30 years, or disenfranchising a significant part of the electorate. Your hypothetical - calling an early election - isn't even close.