20th Century and Later
In MacCormick v. Lord Advocate (1953), an action over the legitimacy of the title Queen Elizabeth II, Lord President Cooper posited that because the "fundamental law" of Scotland merged with that of England into the law of Great Britain at the time of the Treaty of Union in 1707, the supremacy of Parliament may not extend to altering this fundamental law. He also raised the question of whether the fundamental laws could be judged by an English or Scottish court in the same manner as other countries consider constitutional cases. However, he left the matter open, saying "I reserve my opinion."
The doctrine of parliamentary supremacy was upheld by Lord Reid in 1969:
It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid.
Under this view, Parliament has the legal authority to do anything, even though its acts might contradict common-law principles of natural justice. The classic rebuttal is expressed by Albert Venn Dicey, whose 1885 text An Introduction to the Study of the Law of the Constitution argues that the will of the electorate must ultimately prevail over any attempt at tyranny: it is "a political, not a legal fact" that fundamental principles of natural justice cannot be denied.
Laws LJ in Thoburn v Sunderland City Council EWHC 195 (Admin) at recognises what he calls "constitutional statutes":
In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State AC 539, Leech QB 198, Derbyshire County Council v Times Newspapers Ltd. AC 534, and Witham QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute. (cf the remarks by the House of Lords in Watkins v Home Office UKHL 17 at )
In 2004 the Joint Committee (of both the House of Commons and House of Lords) tasked with overseeing the drafting of the Civil Contingencies Act published its first report in which, amongst other things, it suggested amending the proposed clauses that grant Cabinet Ministers the power "to disapply or modify any Act of Parliament" as overly wide, and that the bill should be modified to preclude changes to the following Acts, which, it suggested, formed "the fundamental parts of constitutional law" of the United Kingdom (names are shown as they appear in Hansard:):
- Magna Carta 1215
- Bill of Rights 1689
- Crown and Parliament Recognition Act 1689
- Act of Settlement 1701
- Union with Scotland Act 1707
- Union with Ireland Act 1800
- Parliament Acts 1911 and 1949
- Life Peerages Act 1958
- Emergency Powers Act 1964
- European Communities Act 1972
- House of Commons Disqualification Act 1975
- Ministerial and Other Salaries Act 1975
- British Nationality Act 1981
- Supreme Court Act 1981
- Representation of the People Act 1983
- Government of Wales Act 1998
- Human Rights Act 1998
- Northern Ireland Act 1998
- Scotland Act 1998
- House of Lords Act 1999
- And the bill itself (which became the Civil Contingencies Act 2004).
However, this amendment was defeated by the government, and the only Act of Parliament which may not be amended by emergency regulations is the Human Rights Act 1998.
Read more about this topic: Fundamental Laws Of England