Public Law - Parliamentary Supremacy Skeleton Arguement

A skeleton arguement for a situation between two fictional Statues. The Representation Candidature Act 2006 (RCA 06) and Electoral Reform Act 2009 (ERA 09). The ERA 09 conflicting with the RCA 06, with no clear express repeal of the ERA 09.

This raises a question of the ERA's validity. Furthermore the RCA 06 provides for a majority for the Act to be expressly repealed. A skeleton argument for a moot was prepared.

24^th November 2010

IN THE COURT OF APPEAL

Between:

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R (on the application of Keene) Appellant

-and-

SSJ Respondent

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Skeleton Arguement on Behalf of the Respondent (SSHD)

Facts

· Mr Keene has lived in West Loamshire since only 2008

· Wants to stand as a Candidate for the Parliamentary Election

Keene would be entitled to stand by virtue of s.12 Representation Candidature Act 2006, pre-dating the ERA which states that a candidate can stand for an election who had residency for no less than two years.

· Informed of in illegibility to stand as he didn’t fulfil residence requirements as per s.1 Electoral Registration Act 2009 (ERA 2009). The ERA outlined those wishing to stand as a candidate must have lived in their respective constituency for at least 5 years prior to an Election.

· Keene brought claim for Judicial Review against Secretary of State for Justice (SSJ) arguing that ERA 2009 = invalid... thus entitled to stand as a candidate as per s.12 RCA.

· Claim dismissed on 1^st instance by Court who found that s.1 ERA prevailed.

Respondant Submissions

1) Following the cases of: Edinburgh & Dalkeith Railway Co v Wauchope as confirmed in the following case of:Pickin v British Railways Board. There is clear precedent that the Courts are not permitted to question the validity of a statute, or hold that an Act. This is the ‘enrolled act rule’. With regard to this rule, the fact that the House of Commons lacked a 75% majority when voting for the Act is inconsequential and the validity of the case shouldn’t be in question.

2) As per Ellen Street Estates Ltd v Minister of Health Parliament previous acts of Parliament cannot bind its successor

3) There is no indication that the RCA 2006 was expressly repealed, as per s.35 RCA 2006 the 75% majorities required for a repeal/amendments for the Act were not reached. Hence, implied repeal could applicable in this scenario as the ERA 2009 proceeded the earlier RCA 2006. Following Ellen Street Estates v Minister of Healthin this situation the later ERA 2009 should impliedly repeal the earlier and contradicting an RCA 2006. There are limits which apply to the doctrine of implied repeal. As per Thoburn v Sunderland City Council a statue of constitutional (as opposed to an ordinary statue) importance can only be repealed expressly. Applying Laws LJ’s test for a constitutional statute:

1. The statute must condition the legal relationship between citizen and state in some general, overarching manner; or

2. The statute must change the scope of fundamental constitutional rights.

The RCA does not meet Laws LJ’s test for a constitutional stature due to (i) the limited manner in which it changes the relationship between citizen and state and (ii) its leaving constitutional rights unchanged, thus the 2006 Act can be impliedly repealed.

Validity of the Electoral Registration Act (ERA) 2009

4. Any argument that the ERA is invalid as it was enacted contrary to the provisions of Section 35(1) of the RCA is rejected. It is a tenet of the British Constitution that a later Parliament cannot be bound by any of its predecessors. The authority for this is Ellen Street Estates v Minister of Health [1934] KB 690. To allow the provision of Section 35(1) to stand would destroy the supremacy of Parliament. It is suggested in R (Jackson) v Attorney General [2005] UKHL 56 that if an Act of Parliament offends against the constitution, the courts could be bound to strike it out. The provisions of Section 35(1) of the RCA are entirely unconstitutional and should be struck out.

Status of the ERA

5. It has been suggested in R (Jackson) v Attorney General [2005] UKHL 56 that a constitutional statute might require a super-majority for repeal, as in Section 35(1) of the RCA. For the reasons outlined in above, this does not apply to the RCA, which is not a constitutional statute.

6. For the reasons outlined above the Respondent asks the court to deny the application.

Counsel for the Respondent, 25^h November 2010