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Common law declarations of unconstitutionality 

 
Steve Mccrae and Bincham
Manchester
England
 xxxxxxxxxx
xxxxxxxxxx Magistrates' Court
The Court House
xxxxxxxxxxxxxx
xxxxxxxxxxxxxx                                                                                                               22/11/2014


               Common law declarations of unconstitutionality 

I Steve Mccrae and Bincham put a formal declaration of unconstitutionality to the Lord Chancellor the Great Keeper of the State Seal of Commonwealth of Great Britain . I am putting you : xxxxxxxxxxxx Council and xxxxxxx Magistrates' Court on a

                                        Formal Notice of a Cease and Desist
Colonial Courts of Admiralty Act 1890 Section 2 (1) and (2) and 3 (c) A Colonial Court of Admiralty shall not have Jurisdiction under this act to try or punish a person for an offence which according to law of England is punishable on Indictment. 

The Kings Privy Council under The Provisions of the Elizabethan Poor Law of 1601. The Vagabonds Act of 1530 (22 Henry VIII c.12) was an act passed under Henry VIII and is a part of the Tudor Poor Laws of England. In full, it was entitled an "Act how aged, poor and impotent Persons, compelled to live by Alms, shall be ordered; and how Vagabonds and Beggars shall be punished.

  The Documentary Evidence Act 1868  and the Controller for Her Majesty's Stationary Office to come forward to explain the legals behind a Registered Birth Certificate. Which in turn would bring in Wills Act 1837, Cestui Que Vie Acts of 1666 and 1707.

Constitutional Reform Act 2005: The rule of law : The corporate status of the Ministry of Justice 2.The Directors (Lord Falconer of Thoroton & Others) 3.The fact that Ministry of Justice has County Court Judgements against it 4.The trading styles of MOJ which includes “Magistrates Courts”
Ministry of Justice are corporation they are bound by Companies act 2006 which brings them under The Law Commission the execution of Deeds and Documents by or on behalf of Bodies Corporate, companies act 2006, misrepresentation act 1967,conflict of interest, HMCTS is a corporation and the Ministry of Justice is a corporation  Dun & bradstreet number : 225498526 and also has CCJs against them : Case number:3YJ68358,2YL84427,3YK14710,C85YJ706,C20YP105,D43YJ740,D41YJ471,D60YJ339,B86YM006,D63YJ693 AND E05YX187.

That is why there is no Liability Order signed or Warrants signed or publication on The Registry Trust (RTL). HMTCS and the Civil Procedure Rules 1998 and the 1992 Financial Act Section 3 are being ignored whereby under  the treasury’s consolidated fund for mandated services they must supply for inhabitants for free. National Loans Fund, National Loans Act 1968

Full Disclosure and Validate the debt (the actual Promissory Note )and a full forensic Audit of the chain of Assignment of the note and Title. Full Disclosure and Validate of Securitisation of the Note ( Promissory Note) and a full forensic Audit of the Assignment of the Promissory Note. Full Disclosure and Validate of your claim against me (a sworn affidavit or a hand signed invoice in accordance with  The Bills of Exchange Act (1882) ) ;
Full Disclosure and Validate the contract signed by both parties and therefore binding both parties under Company law, Corporate law and Unidroit.

Full Disclosure and Validate the true and certified copy (NOT photocopy) of the Original Note (Credit Agreement), under penalty of perjury and with unlimited liability and confirm that this Note, has never been sold. Please also confirm the name of the individual who is the duly authorised representative from your company, who has carried out due diligence under The Money Laundering Regulations 2007 and what actions she/he has taken in relation to this account.

The word Person on your letters or in court under the Interpretation Act 1978, the British Nationality Act 1948, Person " includes a body of persons corporate or unincorporated. The definition of "person ", so far as it includes bodies corporate, applies to any provision of an Act whenever passed relating to an offence punishable on indictment or on summary conviction.

I would further advice that I do not give my consent and decline the offer to hearings conducted in a Court de facto and insist that this matter be dealt with in a Court de jure under common law and under the Constitutional Reform Act 2005 rule of law.

I would further advice that the xxxxxxxxx Council legal team should be fully aware of the status of xxxxxxxxxx Magistrates' Court as being a branch of the Ministry of Justice which is a registered corporation, and as such conducts its business under admiralty Jurisdiction under the Colonial Courts of Admiralty Act 1890 whose rulings are invalid on dry land without the consent of both parties to the hearing, and that I specifically do not consent to these proceeding under this Jurisdiction.

The following will be used for a Emergency Judicial Review under Pubic Interest and Case Law and  'Declaration of unconstitutionality', Due to a failing of Due process ,Duty of care and a Tort of Misfeasance by all involved .

            qui litem suam facit

Under the doctrine as it exists today, two delimited requirements determine whether judges may incur civil liability. First, judges may be subject to civil liability when they perform a non-judicial act.' Second, judges may be subject to civil liability for any act performed in complete absence of jurisdiction. To decide whether an act is judicial, courts look to "the nature of the act itself. Quasi Delict is a French legal term used in some civil law jurisdictions. It refers to a negligent act or omission which causes harm or damage to the person or property of another, and thus exposes a person to civil liability as if the act or omission was intentional.

In short, by means of these Writs or Orders the courts perform the value and essential functions of interpreting the limits of the power of the administrative authorities and issuing Writ or Orders to prevent and authority from exceeding it's powers. I hereby give notice of motion I wish to appeal on a point of law of exceptional constitutional importance where the matter involves a matter of general public importance and it is in the interest of justice requires it where there are 'exceptional circumstances' warranting a direct appeal, to the Supreme Court of Judicature 1873 Vict 36 & 37 c.66 in accordance with the Administration of Justice (Miscellaneous Provision) Act 1934.

Sovereignty is defined as Supreme unfettered and unlimited power. God gave man Dominion of Earth. Genesis 1:26 And God said let us make man in our image after our likeness and let them have dominion over the fish of the sea and over the fowl of the air and over the cattle and over all the Earth.
 My God enables me to have the all seeing eye off truth and simple heart, under oath to please God to do good to my fellow man and woman and all creatures of all life, and swore under oath and testify my gratitude to my Divine Creator God.
Having seen and heard all of this, you may choose to look the other way but you can never again say that you did not know which is a Tort of Misfeasance.
                We all are answerable to the Divine Creator God in this life or the afterlife 

Apostolic Letter Issued MOTU PROPRIO of The Supreme Pontiff Francis  1 September 2013.On The Jurisdiction of Judicial Authorities of Vatican City State in Criminal Matters.
Unam Sanctam 18 November 1302,Boniface, Bishop, Servant of the servants of God.

Yours Sincerely : Steve Mccrae and Bincham                                                       22/11/2014

  
Subject access request

       I Gary and Stafford of the Stafford Estate 
.
Please supply the information about me I am entitled to under the Data Protection Act 1998 relating to:

Provisions of the Elizabethan Poor Law of 1601
It [43 Eliz I Cap. 2], consolidated all the previous legislation into one massive law and made provision for
a compulsory poor rate to be levied on every parish
the creation of 'Overseers' of relief
the 'setting the poor on work'
the collection of a poor relief rate from property owners
The Kings Privy Council An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England, [21st June 1824.]

Please supply all the information about me I am entitled to under the Data Protection Act 1998 relating to:

 Full Disclosure and Validate my Council Tax Bill :5000988080 that has been used and enforced by The Kings Privy Council under The Provisions of the Elizabethan Poor Law of 1601. That is why there is no Liability Order signed or Warrants signed or publication on The Registry Trust (RTL) HMTCS and the Civil Procedure Rules 1998 and the 1992 Financial Act Section 3. the treasury’s consolidated fund for mandated services they must supply for inhabitants for free. National Loans Fund, National Loans Act 1968

1: Full Disclosure of the what Jurisdiction the Council and Magistrates are enforcing Council Tax To the Civil and Criminal Procedure Rules .

2: Full Disclosure of ASSIZES Quarter Session and The Kings Privy Council Rules
3: Full Disclosure of The Court Act 1971 abolished Assizes and Quarter Session but the Magistrates Courts were unaffected by the 1971 Act

4: Full Disclosure of the Government Order that never passed through Parliament in 1971/72 that gives the council the authority to issue multi claims for liability orders that are not printed or signed under the Civil Procedure Rules 1998 as of 2012.  

5: Full Disclosure and Validate The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, European Convention on Human Rights that have been breached by you the council and magistrates court on the enforcement of council tax

6: Full Disclosure and Validate the word Person on your letters or in court under the Interpretation Act 1978, the British Nationality Act 1948, Person " includes a body of persons corporate or unincorporate. The definition of "person ", so far as it includes bodies
corporate, applies to any provision of an Act whenever passed
relating to an offence punishable on indictment or on summary
conviction.

 Colonial Courts of Admiralty Act, 1890. Section 1 and 2 and 3 (c) A Colonial Court of Admiralty shall not have jurisdiction
under this Act to try or punish a person for an offence which
according to the law of England is punishable on indictment.

Full Disclosure and Validate why HMCTS is a corporation and the Ministry of Justice is a corporation  Dun & bradstreet number : 225498526 and also has CCJs against them : Case number : 3YJ68358, 2YL84427,3YK14710,C85YJ706,C20YP105,D43YJ740,D41YJ471,D60YJ339,B86YM006,D63YJ693 AND E05YX187 So produce the written signed contract between  HMCTS and Ministry of Justice and the Stockport  Council  and myself .

which brings them under The Law Commission the execution of Deeds and Documents by or on behalf of Bodies Corporate, companies act 2006, misrepresentation act 1967,conflict of interest.
The following will be used for a Emergency Judicial Review under Pubic Interest and Case Law and  'Declaration of unconstitutionality', Due to a failing of Due process ,Duty of care and a Tort of Misfeasance by all involved .

qui litem suam facit
Under the doctrine as it exists today, two delimited requirements determine whether judges may incur civil liability. First, judges may be subject to civil liability when they perform a non-judicial act.' Second, judges may be subject to civil liability for any act performed in complete absence of jurisdiction. To decide whether an act is judicial, courts look to "the nature of the act itself. Quasi Delict is a French legal term used in some civil law jurisdictions. It refers to a negligent act or omission which causes harm or damage to the person or property of another, and thus exposes a person to civil liability as if the act or omission was intentional.

In short, by means of these Writs or Orders the courts perform the value and essential functions of interpreting the limits of the power of the administrative authorities and issuing Writ or Orders to prevent and authority from exceeding it's powers. I hereby give notice of motion I wish to appeal on a point of law of exceptional constitutional importance where the matter involves a matter of general public importance and it is in the interest of justice requires it where there are 'exceptional circumstances' warranting a direct appeal, to the Supreme Court of Judicature 1873 Vict 36 & 37 c.66 in accordance with the Administration of Justice (Miscellaneous Provision) Act 1934.

                                                          
All digital or hard copy information held with my details i.e. Gary and Stafford and Account Number : 5000988080 any other relevant unique information relating to me personally.
 
                               Yours faithfully Gary and Stafford 

                                Great Seal :

                                General Executor Seal :

                                Date : 16/11/2018

  
Before the Reformation, it was considered to be a religious duty for all Christians to undertake the seven corporal works of mercy. These were deeds aimed at relieving bodily distress: in accordance with the teaching of Jesus (Matthew 25 vv. 32-46) people were to
feed the hungry
give drink to the thirsty
welcome the stranger
clothe the naked
visit the sick
visit the prisoner
bury the dead
After the Reformation and the establishment of the Church of England, many of the old values and moral expectations disappeared so it became necessary to regulate the relief of poverty by law. During the reign of Elizabeth I, a spate of legislation was passed to deal with the increasing problem of raising and administering poor relief.
1552 — Parish registers of the poor were introduced so that there was an official record of those who fell into the category of 'poor'
1563 — Justices of the Peace were authorised and empowered to raise compulsory funds for the relief of the poor and, for the first time, the poor were put into different categories
those who would work but could not: these were the able-bodied or deserving poor. They were to be given help either through outdoor relief or by being given work in return for a wage.
those who could work but would not: these were the idle poor. They were to be whipped through the streets, publicly, until they learned the error of their ways.
those who were too old/ill/young to work: these were the impotent or deserving poor. They were to be looked after in almshouses, hospitals, orphanages or poor houses. Orphans and children of the poor were to be given a trade apprenticeship so that they would have a trade to pursue when they grew up.
1572 — the first compulsory local poor law tax was imposed making the alleviation of poverty a local responsibility
1576 — the idea of a deterrent workhouse was first suggested although nothing was done at this point
1597 — Justices of the Peace once more were authorised and empowered to raise compulsory funds for the relief of the poor and the post of 'Overseer of the Poor' was created. The position continued after the 1834 Poor Law Amendment Act
1601 — the 'Elizabethan Poor Law' was passed
Provisions of the Elizabethan Poor Law of 1601
It [43 Eliz I Cap. 2], consolidated all the previous legislation into one massive law and made provision for
a compulsory poor rate to be levied on every parish
the creation of 'Overseers' of relief
the 'setting the poor on work'
the collection of a poor relief rate from property owners
The law required each parish to elect two Overseers of the Poor every Easter: those who were elected were unpaid and often were unwilling appointees who acted under the supervision of the JPs. However, the means of poor relief did provide a way of controlling the 'lower orders' and reinforced a sense of social hierarchy. The Elizabethan Poor Law were appropriate for the society of the time.
The duties of the Overseers were to
work out how much money would be needed for the relief of the poor and set the poor rate accordingly
collect the poor rate from property owners
relieve the poor by dispensing either food or money
supervise the parish poor-house
Two types of relief were available
Outdoor relief: the poor would be left in their own homes and would be given either a 'dole' of money on which to live or be given relief in kind - clothes and food for example. This was the norm.
Indoor relief:
the poor would be taken into the local almshouse
the ill would be admitted to the hospital
orphans were taken into the orphanage
the idle poor would be taken into the poor-house or workhouse where they would be set to work
Part of the 1601 Law said that poor parents and children were responsible for each other, so elderly parents were expected to live with their children for example. However, everyone in need was looked after at the expense of the parish, which was the basic unit of poor law administration. There were 15,000 parishes throughout England and Wales, each based on a parish church. However, no mechanism was introduced to enforce any of the measures stated by the 1601 Act and the operation of the poor law was inconsistent. The legislation did not set down any administrative standards so parishes were at liberty to interpret the law in any way they wished. There were great differences between parishes which varied between extreme laxity and extreme stringency in the interpretation of the law. Some towns, such as Bristol, Exeter and Liverpool, obtained local by-laws that established corporations of the poor: their responsibilities extended over several of the urban parishes within their jurisdiction.
The Elizabethan legislation was intended to help the 'settled' poor who found themselves out of work (for example) because of illness, or during a hard winter or a trade depression. It was assumed that these people would accept whatever work or relief the parish offered, whether that was indoor or outdoor relief. Neither method of assistance was seen as punitive or harsh. It was intended to deter or deal with the 'sturdy beggars' who were roaming the roads, robbing travellers and generally posing a threat to civil order. The increase in the numbers of beggars was probably the historical background to the nursery rhyme
Hark! Hark! The dogs do bark!
The beggars are coming to town:
Some in rags, some in tags
And one in a velvet gown
The first adaptation of the 1601 Act came in 1607 and provided for the setting up of Houses of Correction in each county. Here, work was provided for the unemployed at local rates of pay; work could be forced on the idle and on vagabonds. The Houses of Correction were not part of the Elizabethan system of poor relief and were totally separate from the parish poor houses because the law made a clear separation between the settled and 'wandering' poor.
The 1601 Elizabethan Poor Law continued with further adaptations — for example the 1662 Settlement Act, Gilbert's Act (1782) and the Speenhamland system of 1795 — until the passing of the 1834 Poor Law Amendment Act and formed the basis of poor relief throughout the country for over two centuries. It was a fair and equitable system run for and administered by local people at a time when the population was small enough for everyone to know everyone else and his/her circumstances. This meant that the idle poor were known as such and would be given short shrift at the hands of the Overseers of the poor.
One of the later complaints about the 1601 Act was that the basis of the law was that it rated land and buildings but not personal or movable wealth. Consequently it benefited the industrial and commercial groups in society who did not fall within the parameters of the legislation and so did not pay into the poor rates unless they also happened to own landed property.
    
The Vagabonds Act of 1530 (22 Henry VIII c.12) was an act passed under Henry VIII and is a part of the Tudor Poor Laws of England. In full, it was entitled an "Act how aged, poor and impotent Persons, compelled to live by Alms, shall be ordered; and how Vagabonds and Beggars shall be punished.”
  
  
  

True Timeline of Slavery 

Let us stick to what we know makes it simple to understand 
  
Property Held By Foreign Powers
The General Executor and Guardian is empowered with the Rights and authority defined herein to grant by warrant and letters patent to Beneficiaries, Fiduciaries or Agents, one (1) or more of those rights possessed by Our Estate, whether or not the associated property is in direct possession of Our Estate subject to these Degrees; and
Where certain Property or Rights belonging to Our Estate is held, possessed or claimed for use by a foreign State, it shall be the obligation of the General Executor and Guardian to ensure a Claim of Right is duly lodged within the records of Our Estate and that Notice of the Claim of Right including an extracted copy be provided to the officials of the foreign state seeking the return or surrender of the false Claim and possession, where beneficial Rights have not been granted. If such Claim is ignored, it shall be the duty of the General Executor and Guardian to seek any and all forms of legitimate and lawful remedy including assistance through Our allies; and
    
By the Power and Authority of Our Right of Ius Testamentum, we hereby give, grant, devise, convey, vest and entrust all Our powers and authority by the present Sacred Instrument and Great Charter to the Office of General Executor and Guardian as Sovereign over Our entire known and unknown Estates. We, hereby revoking any and all previous authorities, powers of attorney, powers of guardianship, agency or personal representation whether explicit or implied, presumed or knowingly granted by signature, name, fair use or some other legal device. Furthermore, we hereby fulfill and dissolve any all previous trusts, oaths and bonds of former trustees associated with the granting of all previous authorities, powers of attorney, powers of guardianship, agency or personal representation whether explicit or implied, presumed or knowingly granted by signature, name, fair use or some other legal device. Therefore, no one shall be permitted to occupy or hold or claim any office, agency, power, employment or authority over any part of the Superior Estate except through the expressed written authority of the General Executor and Guardian; and
    
Where clear written evidence exists of a fiduciary capacity or fiduciary relation between Our Superior Estate and a foreign Agent and that Agent then refuses to obey a direction by the Minister-General, then such an Agent is not only guilty of bad faith but gross dishonor. If the foreign State, entity or Corporation then fails to reprimand and remedy such action then such failure to act shall be ecclesiastically, lawfully and legally construed as Public Notice and Official Record that the Rule of Law and Justice in that foreign State has ceased to exist; and
    
The General Executor and Guardian is empowered with the Rights and authority defined herein to grant by warrant and letters patent to Beneficiaries, Fiduciaries or Agents, one (1) or more of those rights possessed by Our Estate, whether or not the associated property is in direct possession of Our Estate subject to these Degrees; and
Where certain Property or Rights belonging to Our Estate is held, possessed or claimed for use by a foreign State, it shall be the obligation of the General Executor and Guardian to ensure a Claim of Right is duly lodged within the records of Our Estate and that Notice of the Claim of Right including an extracted copy be provided to the officials of the foreign state seeking the return or surrender of the false Claim and possession, where beneficial Rights have not been granted. If such Claim is ignored, it shall be the duty of the General Executor and Guardian to seek any and all forms of legitimate and lawful remedy including assistance through Our allies; and
  

I Adrian Duncan And Frost being stopped by 1 policy enforcer PC Constable BEETON 1134, on the 16/11/2018 forcibly detained & arrested and against my will in police custody £1,000 per minute Being physically forced under duress and threaten with physical force to contract,

without my consent. Here are the following terms and conditions of my contract of the AGENT of ADRIAN DUNCAN FROST as follows from the date 17/11/2018 , £20,000 per violation and thereafter £5,000 per day until my information or personal data or intellectual property is removed and returned. The removal or damage of property from my ownership without my consent and without lawful excuse £25,000 per violation and then £5,000 per day until my property is returned
My being questioned, interrogated, harassed, made fearful or a threat made against me, and assaulted. £25,000 per violation My self being handcuffed, wrongfully arrested, transported, assaulted or battered or attacked, incarcerated or subjected to any adjudication process that is outside common law jurisdiction £500,000 per violation
My self being attributed anything that I did not actually say or write or do, in the event that by written or spoken communication are tampered with £500,000 per violation
My self being refused or denied immediate access to an appropriate adult of my choice and or to a doctor and or legal advisor £250,000 per violation
My self having to suffer the effects of what has become known as a non lethal or less than lethal weapon, including but not limited to, taser, PAVA spray, Mace, Baton , Asp and or any other device or weapon or tool £500,000 per violation My self being subjected to West yorkshire Police and or its agents, fabricating evidence and or planting of evidence against myself in an attempt to pervert the course of justice. £1,000,000 My self being wrongfully identified as any legal fiction without my consent or knowledge £10,000 per violation My home being raided and or entered by force
without my consent and without lawful excuse, £100,000 per violation per officer or West Yorkshire police employee and or their agent, excluding costs to repair damages to my home, which will be invoiced to you later.
My self-having to suffer slanderous or malicious or libellous allegations which West Yorkshire Police or its agents inform my neighbours, friends or local community £ 25,000 per violation. My self being forced to undergo any ingestion of energies or substances forced into or onto my body, whether in the guise of medication or not, without my expressly notarised consent. £1,000,000 per violation Myself to be abused verbally or physically causing distress or pain or humiliation £500,000 per violation for any wrongful allegation or false claim made against myself £1,000,000 per violation
My self being strip searched and humiliated against my consent £25,000 per violation for myself to endure any court cases due to West Yorkshire Police officer’s or their employee’s and or their agent’s misconduct £1,000,000 per day in court. Thank you for your business. These terms and conditions may be adjusted without warning and the terms may be added to in the future. 17th Nov 2018 Without prejudice and with all Natural and inalienable rights reserved.
Kind regards
Adrian Duncan And Frost  

This rule of construction gives the U.K., according to Justice Laws, “most of the benefits of a written constitution,” while “preserv[ing] the sovereignty of the legislature and the flexibility of our uncodified constitution.”84 Where a court concludes that Parliament does expressly legislate against a constitutional statute, it therefore indicates that Parliament has acted in an unconstitutional, if strictly legal, way. This interpretive process reconciles the rule of law with parliamentary sovereignty, while a declaration of unconstitutionality would openly acknowledge that, in the view of a court, a conflict had arisen between them.85

Under the reasoning of Thoburn, outright amendment or repeal of the Human Rights Act itself, for example, would require that Parliament unambiguously do so in order to restrict or “dis-incorporate” convention rights. Even in that event, the Magna Carta, Bill of Rights 1689, and Great Reform Bill constitutionally establish basic rights principles such as habeas corpus, a right to petition, and a right to vote. Constitutional statutes in this way insinuate themselves into the common law, with both mutually informing and reinforcing each other.86 Through their normative force, the principles enshrined in these special statutes have a value beyond their explicit text, elevating them above ordinary statutes and setting them in a substantive rule-of-law framework that restrains government power independently of the HRA.

Like conventions, some fundamental statutes go beyond particular rights in order to define the government's institutional structures and regulate democratic decision-making processes. The Parliament Acts, the Act of Settlement, and the Constitutional Reform Act 2005 (not yet in force)87 do just this, while the Acts of Union and the devolution acts respect the values of regionalism. While not directly affecting individual rights, these structurally significant statutes do so indirectly by establishing the institutional mechanisms or regional levels through which Parliament and the government must act. Institutional mechanisms prevent institutional or personal concentrations of power, which might permit decision makers to interfere arbitrarily, oppressively, or undemocratically with individual rights. Regionalism mitigates the overcentralization of   
government power for the same ends, by promoting some degree of regional equality, identity, or decision-making autonomy for the U.K.’s constituent national communities.

The decision in Jackson v. Attorney General88 not only illustrated the importance that fundamental statutes have but went so far as to suggest, in dicta, that, conceivably, they could legally limit parliamentary power under some circumstances. In Jackson, the appellants argued that the Hunting Act 2004, passed under the procedures of the Parliament Act 1949, was not actually an act of Parliament because the 1949 act itself was not legally valid. The appellants argued that the government of the day had secured passage of the Parliament Act 1949 improperly through the procedures of the Parliament Act 1911, which, correctly construed, did not permit the House of Commons to reduce further the legislative power of the House of Lords without that chamber's consent. The Lords disagreed with the appellants’ argument and declared both the 1949 Act and the Hunting Act to be valid acts of Parliament, finding that the Parliament Act 1911 changed the definition of primary legislation and so gave power to the House of Commons to pass any statute whatsoever under its procedures without the consent of the Lords  

Section 2(1) of the 1911 Act, however, expressly made one notable exception on the use of its procedures, excluding from these any bill extending the life of Parliament beyond five years. Although unnecessary for deciding the case before them, some Lords of Appeal speculated on the hypothetical issue of whether or not the House of Commons could use the Parliament Act 1949 to amend section 2(1) of the 1911 Act, so as to permit the Commons to extend the life of Parliament beyond five years without the consent of the House of Lords. Lord Bingham expressed an opinion that the House of Commons, in this way, could indirectly achieve what it could not directly legislate under the unamended 1911 Act.89 Lord Nicholls disagreed, however, arguing that section 2(1) necessarily implied that the House of Commons could not indirectly extend the life of Parliament by first amending section 2(1),90 leading to a conclusion that any bill purporting to do so by this two-step procedure could not be an act of Parliament and would, therefore, be legally invalid. 
 
Most interesting, however, was the decision of Lord Steyn. He agreed with Lord Bingham that the House of Commons could use the procedures of the two Parliament acts to amend section 2(1) of the 1911 Act so as to permit the Commons to extend the life of Parliament without consent of the House of Lords. However, he explored the constitutional implications of such unicameral authority in the House of Commons. Under this interpretation of section 2(1), “the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation.”91 Although the supremacy of Parliament remained the “general principle” [italics original] of the constitution, it was not absolute. Lord Steyn mused: “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 a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”92 Lord Steyn's warning raised doubts about the orthodox doctrine of parliamentary sovereignty and the constitutional responsibility of the courts to enforce a statute, should a government introduce legislation manifestly at odds with liberal democracy.93 While one might not wish to speculate about or doubt the doctrine of parliamentary sovereignty, as did some of the Lords in Jackson, the case, nonetheless, reveals the special status that some statutes have in constructing the rule-of-law framework within which Parliament legitimately exercises its power.  

Jackson also drew attention to regionalism, alongside bicameralism and the separation of powers, as a constitutional principle enshrined in fundamental statutes. Lord Hope re-affirmed the Acts of Union as constitutionally significant statutes, leading him to opine that “here too it may be said that the concept of a Parliament that is absolutely sovereign is not entirely in accord with the reality.”94As Lord Hope recognized in his citations, some judges have questioned whether the Acts of Union might not, in some circumstances, even legally limit Parliament's sovereignty rather than provide only unenforceable but normative baselines.95  

In any case, as illustrated by Thoburn, the Acts of Union or any other fundamental statute need not limit Parliament's sovereign power legally in order to generate higher-order principles that guide a court's statutory interpretation and support a nonbinding declaration of unconstitutionality. Furthermore, as with any fundamental statute, the higher-order status of the Acts of Union would not necessarily foreclose a judicial distinction between their material and immaterial breach, allowing Parliament to amend them in ways that would not undermine their normative principles.96 The justiciability of a claim that Parliament has violated a fundamental statute, and the suitability of a declaration as a remedy in the case, would depend, accordingly, on the nature and seriousness of the alleged breach. With the Acts of Union, for example, some breaches might be minor or nonjusticiable,97while others will be of a constitutional order; for example, if “the United Kingdom Parliament passed an Act purporting to abolish the Court of Session or the Church of Scotland or to substitute English law for the whole body of Scots private law.”98 This emphasis on principle, rather than strict text, results from the higher-order nature of fundamental statutes, which, like conventions or common law rights, make up a substantive rule of law that, at once, constrains and accommodates parliamentary power.99
  
Other statutes, in addition to the Acts of Union—the Scotland Act, the Northern Ireland Act, and the Government of Wales Act—establish quasi-federal principles promoting regional autonomy and democratic governance. The Scotland Act, however, is perhaps the most interesting of the three statutes, in giving back to Scotland a parliament that can make primary legislation on devolved issues. Scotland's history as an independent nation with its own Crown and Parliament, and its having voluntarily united with England and Wales, arguably enhances the constitutional status of the Scotland Act by setting it within a unique historical and political context.100 Although it retains sovereign power to legislate for Scotland, the Westminster Parliament will refrain from doing so without consent of the Holyrood Parliament. This political practice quickly achieved constitutional status as the Sewel Convention, revealing an interesting relationship between conventions and fundamental statutes.101 Along with the Acts of Union, therefore, the Scotland Act, Northern Ireland Act, and Government of Wales Act represent constitutional principles of devolved decision making that Parliament is constitutionally bound to respect.102
    
Accordingly, should Parliament expressly amend or repeal a constitutional statute, as it did previously in suspending the Northern Ireland Act 1998 following the impending breakdown of the Good Friday Agreement,103 the courts would then have to determine whether the interference so undermined the statute's underlying principles that it would justify a declaration. The Northern Irish situation, for instance, suggests the delicate political issues that courts would confront in deciding not just what alterations to constitutional statutes are serious or minor but also whether they are consistent with the statutes’ principles. For example, the U.K. Parliament took the extreme step of authorizing the suspension of devolved government under the Northern Ireland Act 1998, doing so in order to salvage the peace process and ensure stable, peaceful self-government in the region for the long term. From this perspective, the suspension of Northern Irish government arguably would have been constitutional in the sense of being consistent with the principles of devolution, although the Northern Ireland Act itself (for various reasons) might not have “constitutionally embedded” itself as quickly or as firmly as, say, the Scotland Act seems to have done.  

The point is, faced with Parliament's express amendment or repeal of any of the terms of a constitutional statute, a court will be faced with two choices with regard to making a declaration. First, a judge must cautiously distinguish the constitutional from the unconstitutional alteration of a fundamental statute, looking beyond strictly textual alterations to overarching constitutional principles and the legislative purposes motivating the amendments in question. This assessment will require a teleological approach to constitutional adjudication. Taking again the example of the suspension of the Northern Irish government, Parliament's actions might arguably have been constitutional regarding the devolution project as a whole, especially given that devolution was itself in an early, somewhat experimental stage.104 Furthermore, legislative changes to fundamental statutes might also be consistent with emerging constitutional norms, valuably amending “out-of-date” ones.105 Just what standards a judge would apply in distinguishing constitutional from unconstitutional alterations of fundamental statutes—and in deciding whether a declaration would be appropriate in the latter case—will require further elaboration by the courts. For now, however, it may be said that where Parliament has expressly and seriously contravened not only the terms but the spirit of a constitutional statute in an unjustifiable, disproportionate, or wanton way, courts can legitimately consider declaring the interfering law to be unconstitutional, leaving it for Parliament and the public to consider the ramifications of the offending actions.  

The second approach toward declaring some infringement of a fundamental statute unconstitutional is strictly and more simply rooted in the text. That is, if Parliament expressly amends or repeals a fundamental text in any way, a court could consider making a declaration of unconstitutionality, highlighting the inconsistency of the resultant law with the special statute and then leaving it for parliamentary reconsideration through the political processes. With this second approach, a declaration of unconstitutionality would flow more directly from an interpretive conflict between contradictory, new legislation and the existing constitutional text, just as it would with the infringement of common law rights or conventions. Unlike with those rights or conventions, however, the hard text of fundamental statutes leaves less room for flexible judicial interpretation of the constitutional norms involved, or for their reconciliation with potentially conflicting, subsequent legislation. This could make a strict approach to judging a conflict between new legislation and a fundamental statute, perhaps, undesirable. The lack of flexibility might also make it more problematic for judges who, on wider principles, might be indisposed to declare the changes in question to be unconstitutional, especially as otherwise there would be no “amending procedure” by which the permanent alteration of a written constitutional norm could be achieved.  

The above questions notwithstanding, Britain's new constitutional jurisprudence has now developed in a way that logically points toward a declaration of unconstitutionality based upon special textual provisions. Discerning the standards to be applied in distinguishing a constitutional from an unconstitutional breach is the next step on the path of legal development already chosen by the courts. While courts have long recognized certain documents to have special constitutional significance for purposes of statutory interpretation, the decision in Thoburn settled the fact that courts will now require Parliament to amend or repeal constitutional statutes by express language only.  

The interpretive approach toward these statutes is, therefore, the same as that taken toward common law rights and conventions. Whether protecting individual rights directly or indirectly through the establishment of institutional structures and respect for regionalism, constitutional statutes establish the norms by which courts must assume Parliament exercises its supreme legislative power. Thus, “[i]t is possible to achieve the same practical effect as entrenchment whilst preserving continuing parliamentary legislative supremacy.”106 Where a court finds that Parliament does clearly wish to amend or repeal a fundamental statute—at least in a material way that offends that statute's transcendent principles—the interpretive process points toward a conclusion that Parliament has legislated in an unconstitutional way. This, in turn, leads to and justifies a nonbinding declaration to that effect.  

Is a Constitutional remedy foreclosed?

Until the Human Rights Act, no court had ever declared formally, as a remedy, that an act of Parliament violated individual rights. Of course, one might say that courts, once, were less protective of fundamental rights, more deferential to the political branches, and made little distinction between constitutional law and statutory law than is now the case.107 Breaking with this more radical formalistic tradition, judicial recognition of substantive, higher-order values has risen in the past decades, along with a more assertive view of the judiciary in guarding the rule of law. It is noteworthy, nevertheless, that no British court has ever explicitly disavowed the power to grant a declaration that Parliament has violated constitutional principles.  

That said, some pre-HRA challenges to government action did seek declaratory relief, potentially raising this kind of constitutional conflict. In Malone v. Metropolitan Police Commissioner108 and R. v. Secretary of State for the Home Department, ex parte Brind,109 courts refused to issue declarations that the Crown had violated convention or common law rights unlawfully; this was under circumstances where doubt might have arisen about the compatibility of the statute with fundamental rights. These two cases are often cited as showing the lack of rights protection before the HRA, as well as the unavailability of a judicial remedy for rights infringements.110 These cases, then, have the greatest potential for undermining the argument that courts have the authority to make a declaration of unconstitutionality against Parliament. A reexamination of these cases, however, shows that they did not categorically reject a declaratory power in situations where a government infringes basic rights but only denied the higher status of the particular rights at issue. Malone and Brind, despite refusing to declare that the Crown had infringed any fundamental rights, actually left open the possibility that such declarations might issue against either it or Parliament under appropriate circumstances.  

In Malone, the claimant sought declarations that, among other things, the police had tapped his telephone in the absence of statutory authorization, in contravention of rights at common law, and against section 8 of the unincorporated ECHR. The Chancery court refused to grant the declarations. Sir Robert Megarry V.C. made clear that declarations were available only as to “rights and liabilities that are enforceable in the courts, and not merely moral, social or political rights or liabilities that are not.”111 In the case before him, Sir Robert found that rights under the convention were nonjusticiable—and so unenforceable—because they arose under a treaty unincorporated into domestic law.112 Furthermore, the claimant had no legally recognizable rights of property, privacy, or confidentiality at common law that wiretapping would violate.113 The claimant simply had no legal rights that would support the desired declaration that the wiretapping warrant was

unlawful.114Moreover, Malone concerned wiretapping ordered by the executive and done without (but not contrary to) either common law or statutory authority; in the absence of any prohibitions against it, the tapping was lawful.115Malone, therefore, did not even address the issue of whether a declaration would be inappropriate or impossible as a remedy, where an act of Parliament itself violated a fundamental common law right. The closest Sir Robert came to analyzing the idea of a fundamental right was to reiterate that the court's declaratory power was “confined to making declarations on matters that are justiciable in the courts.”116 However, there existed no plausible domestic rights in the case—either under common law or the convention, and thus the situation failed to present a justiciable controversy. Accordingly, Malone left open the possibility that, in other circumstances, a court might indeed consider declaratory relief, where a statute and some constitutional right could not be reconciled.  

Brind also concerned a request for a declaration that the Crown had violated an individual's fundamental rights; the request was made under the unincorporated convention alone, without any appeal to common law. Like Malone, Brind did not reject outright the idea of constitutional rights and did not categorically preclude a court's making the kind of declaration sought by the claimant. In Brind, the home secretary exercised a statutory power to order that the BBC and Independent Broadcasting Authority refrain from broadcasting any matter spoken by persons representing proscribed terrorist organizations. The applicants claimed that this order was ultra vires by arguing that the home secretary had a legal duty to comply with section 10 of the convention, to be imputed into the primary legislation under which the order was made. The House of Lords rejected that argument. While Lord Donaldson recognized the similarities between many common law and convention rights, he noticed that “in this case we are invited to grapple with the fundamental question of the effect of the Convention as distinct from any common law to the like effect.”117Brind rested upon the status of convention rights only and did not address the apparent conflict between the authorizing statute itself and rights at common law. Like the Chancery court in Malone, the House of Lords found that the convention was a legally unenforceable treaty. The Lords admitted that English courts would consider the convention when construing ambiguous statutory language but dismissed its relevance where the statute's meaning was clear.118 In Brind, however, Parliament's intent was quite apparent and to find an implied intention that the executive must comply with the convention would be to incorporate the treaty “by the back door.

Brind, like Malone, therefore rejected the unincorporated convention as a source of domestic legal rights, which might otherwise support the declaration sought. As a result, the convention created no legal rights against which the statute could have been considered “incompatible,” in the later terms of the HRA. Essentially, both cases only reaffirmed the accepted English rule that unincorporated treaties and international law are no more than aids to statutory construction.120 Neither decision resolved a conflict between any act of Parliament and higher-order principles, for the simple reason that the courts found that the claimed rights did not exist in domestic law  

Malone and Brind, as the two most prominent pre-HRA cases where declarations based on fundamental rights were sought and refused, never actually dealt with a conflict between Parliament and a higher-order principle. Instead, both cases left open the possibility of such a conflict, as well as of declaratory relief in that event. If one objects that there is no direct precedent for a declaration against Parliament, neither is there any against it. Therefore, any reading of these cases as foreclosing a declaration of unconstitutionality as a constitutional remedy is too broad. Such a broad reading would, furthermore, be at odds with the new constitutional jurisprudence and the courts’ interpretive process—both of which now clearly point toward a declaration where higher-order principles and a statute are irreconcilable.  

Conclusion

In the years since the Human Rights Act came into force, courts have for the first time directly and substantively reviewed acts of Parliament against fundamental rights, incorporated in the form of the European Convention on Human Rights. Where Parliament violates those rights, the HRA allows courts to make nonbinding declarations of incompatibility; ideally, this will increase Parliament's political accountability for respecting human rights. However, the declaration made in cases such as A and Others (No. 1) and other decisions under the HRA have incited criticisms of both judges and of the act itself, prompting not-so-veiled threats that future amendment of the HRA is not a political impossibility. It is perhaps not too outrageous to fear that, one day sooner or later, Parliament might amend or even repeal the Human Rights Act so as to “dis-incorporate” convention rights.  

This article has argued, however, that such an unfortunate development would not extinguish the judicial power to declare acts of Parliament incompatible with constitutional norms, such as common law rights. Indeed, this constitutional remedy would be available even with the HRA in place; indeed, common law rights might offer greater protection than the ECHR, even as indigenous legal conventions and fundamental statutes can promote the systemic mechanisms of democratic government. Such a declaratory power resides in the courts by virtue of the interpretive process by which they apply a constitutional jurisprudence that exists and evolves independently from the HRA These multiple sources of higher-order law, subject only to express amendment or repeal, establish principles within a substantive rule-of-law framework that both constrains legislative power and gives legitimacy to the doctrine of parliamentary sovereignty. Courts, therefore, will not lightly find statutory conflict with these constitutional principles and will require that Parliament make a contrary intent unmistakably clear. Where a court finds that Parliament has indeed exercised its sovereign power against these principles, it will also, and necessarily, conclude that Parliament has acted unconstitutionally. The logical extension of this interpretive process is that courts can formally issue a declaration of unconstitutionality in the event of a constitutional conflict.  

No precedent precludes this constitutional remedy, nor would it undermine the doctrine of parliamentary sovereignty. Such a declaration, like its statutory counterpart under section 4 of the Human Rights Act, would be nonbinding and not affect the legal validity of a statute. A declaration of unconstitutionality would instead complement parliamentary sovereignty, within the liberal democratic context, by enhancing government's political awareness of its constitutional obligations and its accountability to the electorate. Resolution of the constitutional conflict, then, would be appropriately left to the democratic political process. With its sovereignty intact, the only objection Parliament could have to a declaration would be the desire to exercise its legislative power free from open and full accountability in the courts for violations of its constitutional obligations. And any attempt by Parliament to forbid a declaration—should a judge first be brave enough to take this important next step of constitutional jurisprudence—would be, no doubt, unconstitutional.