This coursework is to consider the judgments of Lord Hope and Lord Reed in the case AXA General Insurance Limited v The Lord Advocate1, to determine their view on parliamentary sovereignty and the rule of law. Parliamentary sovereignty was stated by Dicey “Parliament has the right to make or unmake any law whatever.”2 The passing of new Acts affected the ability of Parliament to legislate on any matter, such as the Human Rights Act 1998 and the European Communities Act 1972. The principle of the rule of law is stated by Dicey that the law is supreme, there is equality before law and that the constitution may be found in the ordinary laws of the state. “That no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law in the ordinary legal manner before the ordinary Courts of the land.”3
The AXA4 case at common law is that the 2009 Act concluded an unreasonable, irrational and arbitrary exercise of the legislative authority conferred by the Scotland Act 1998 on the Scottish Parliament.5 According to Lord Hope, “It goes to the root of the relationship between the democratically elected legislatures and the judiciary. At issue is the part which the rule of law itself has to play in setting the boundaries of this relationship.”6
In the case West v Secretary of State for Scotland7 is stated that:
“The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decision are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.”8
According to the Scotland Act 1998 is declared, “There shall be a Scottish Parliament”.9 Also that Parliament may make laws, to be known as Acts of Scottish Parliament10, and receive the Royal Assent.11 The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment12, and this shall not affect the power of the UK to make laws for Scotland, in practice the Scottish Parliament enjoys the same law making powers for Scotland as Westminster Parliament.13 The UK Parliament has empowered in the Scottish Parliament the authority to make laws that are within its devolved competence.14 As Lord Bingham said, “Is the bedrock of the British constitution. Sovereignty remains with the UK Parliament. The Scottish Parliament’s power legislate is not unconstrained. It cannot make or unmake any law It wishes.”15
Lord Hope, states parliamentary sovereignty, according to the traditional view, that “is immune from the judicial scrutiny because it is protected by the principle of sovereignty.”16 On the other hand, Dicey’s traditional theory is that Parliament is the supreme law-maker, the validity of Parliament’s laws cannot be questioned by anyone and that Parliament cannot bind itself.17 Lord Steyn, by contrast, does not agree with Dicey’s theory and states it as classical and to be out of place in the modern United Kingdom. As he said:
“In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”18
Lords Hope and Reed, were clear that review of ASPs on normal common law grounds is not appropriate for nonsense, inappropriate purposes and so on.19 However, it does not follow that review at common law is never possible. Both agreed that the courts would not uphold ASPs of an extreme kind that violated the rule of law. Lord Hope stated in the case Jackson v Attorney General20, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based”21. Where he recognized an inextricable collision between
