Invalidity, Disapplication and the Construction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light of the European Communities Act and the Human Rights Act

In: The Cambridge yearbook of European legal studies: CYELS, Band 2, S. 399-415

Abstract

An Act passed by a Parliament may fail to apply to a given set of circumstances for one of two reasons, neither of which is mutually exclusive of the other. The first of those reasons is that the Act falls outside the legislative competence of the Parliament, in which case it is usually said that the Act is unconstitutional or legally invalid. The second is that the Act does not attempt to apply even though the Parliament possessed the competence to make it apply to the same circumstances. The process by which it is determined that the Act does not apply for that reason is one of statutory construction or interpretation. It is possible to describe such an Act as merely non-applicable or non-operative. There will be situations where both reasons may coincide, especially if there is created a statutory presumption in favour of giving an Act a construction, which will ensure its validity. But only the first of the two reasons mentioned above involves a challenge to the supremacy of the Parliament concerned.