chapter  1
12 Pages


ByHealthcare Law, Practice Austen Garwood-Gowers, John Tingle

Traditionally, the UK has protected rights in a residual fashion; Parliament would legislate and citizens-or rather subjects-would retain the rights to do whatever Parliament had not prohibited. Under the US Constitution the US courts have been empowered to strike out legislative provisions contrary to the fundamental rights protected under the Constitution. However, in the English system Parliament is omnicompetent; its supremacy or sovereignty can only be challenged in the event of a transfer of power following internal revolution or external invasion. Coke CJ in Dr Bonham’s Case, stated that: ‘When an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.’ 1 However, no statutory provision has ever been overturned under English law and Coke’s approach does not seem to be good law. As Lord Reid put it, in British Railways Board v Pickin [1974] AC 765 HL, p 782:

The most the courts of England and Wales can do is resolve any uncertainties as to the meaning of legislative provisions in favour of the rights of the citizen2

and to review administrative action taken by national or local or other


government authorities.3 On the other hand, when the Treaty of Union was signed between England and Scotland in 1707, the Scottish Court reserved the right to treat an Act of Parliament as void for breaching a fundamental term of the Treaty. Admittedly, in McCormick v Lord Advocate 1953 SC 39, it was not foreseen that this was likely ever to happen in practice. An advantage claimed for giving less power to the judges under the English position is one of democratic accountability; namely, that judges who are not chosen by the populus cannot overturn the decisions of a Parliament whose members, in the case of the House of Commons, are chosen by the populace.