4 (1) (C) of the Act, which provides a defence to such an action where ‘the state

of scientific and technical knowledge at the time (time of supply) was not such

that a producer of products of the same description as the product in question

might be expected to have discovered the defect if it had existed in his

products while they were under his control’. Section 5 of the Act also limits

damages under the Act to £5,000. Gervase claims that he has suffered injuries

worth £10,000 due to his being unable to pursue his job as a self-employed

taxi driver for six weeks.

The Act was passed to implement the EC Purchasers Protection Directive

(fictitious). Gervase wishes to rely on Art. 7 (e) of the Directive which provides

a defence only where ‘the state of scientific and technical knowledge at the

time when he put the product into circulation was not such as to enable

the existence of the defect to be discovered’. Advise Gervase as to the rules

by which any conflict between the Act and Directive will be resolved and the

procedures involved.

Part III

Governmental Institutions

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10 Parliament

Strictly speaking, Parliament is a meeting, summoned by the monarch

under the royal prerogative of the two separate Houses – the House

of Lords and the House of Commons – with the purpose of proposing

laws to the Crown and consenting to the Crown’s requests for money.

Today, as a result of the development of conventions favouring

democracy the role of Parliament is primarily to sustain the executive,

hold the executive to account and to approve legislation. Parliament

also acts as a way of translating the popular vote into the appointment

of an executive, since, again by convention, whoever commands a

majority in the House of Commons is entitled to form a government.

As we shall see, by virtue of the distortions of the electoral system, a

popular majority does not necessarily translate into a parliamentary

majority. In recent years the effectiveness and standing of Parliament

has probably weakened in that members of Parliament may lack the

will and resources to be independent of the executive and have there-

fore allowed political power to accrue to the executive.

10.1 Historical Development

The word ‘Parliament’, which in origin meant merely a parley or

conference, entered into official language about the middle of the

thirteenth century. It described formal conferences between the king

and the elite members of society. Broadly, the history of Parliament is

that of a power struggle between the Crown and Parliament and

between the two Houses of Parliament. The House of Commons has

triumphed over the Crown in the sense of the monarch, and over the

House of Lords, but the Crown in the sense of the executive appears

for now to be the winner.

The House of Lords was the earliest part of Parliament. The House

of Lords was the king’s great council of advisers, summoned and

dismissed by the king. The Lords were originally the great landowners

of the realm, ‘tenants-in-chief ’, created as such by the monarch and

transmitting to their descendants their property and the titles and

power that went with it. Membership also included church dignitaries.

There was also an ‘inner’ council of close advisers exercising execu-

tive functions. This developed into the Privy Council which retains

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210 General Principles of Constitutional and Administrative Law

residual functions today but whose executive role has mainly been

taken over by the cabinet which is by convention nominally responsible

to Parliament.

The ‘pure’ feudal system did not survive the thirteenth century. Land

became freely disposable, and wealth and influence could be amassed

through commerce and professional skills. This made it possible for

people other than the hereditary landowners to aspire to political

power, and led to the rise of the House of Commons, the origins of

which lay in the occasional practice of the king of summoning leading

persons from the wider community to assist in settling appeals from

local courts, and to provide him with information.

The king increasingly used the Commons to provide support in his

continuing disputes with the nobility. In particular the representatives

were useful tax-gatherers, and in 1254 Henry III began the practice of

summoning the Commons to seek financial support particularly for

overseas adventures. The Commons consisted of property owners: the

knights from the shires and (after 1265) the burgesses (leading citizens)

from the boroughs. During the reign of Edward III (1327–77), parlia-

ments were summoned more regularly and the Commons began the

practice of submitting a list of demands and grievances before they

agreed to vote taxes to the king. They also began to distance themselves

from the Crown and the Lords by meeting separately.

The independence of the Commons owed much to the Crown’s need

for money to prosecute foreign wars and to finance the dynastic con-

flicts with the barons that continued until the Tudor period. Although

Parliament was not originally a law-making body, by the sixteenth

century it became customary for the most authoritative statements

of the existing law to be made by the monarch with the advice of the

separate Houses of Lords and Commons: the three ‘estates’ who

claimed to represent the realm. From this it was an easy step to Parlia-

ment making new law. Nevertheless, Parliament only met when sum-

moned by the king, drastic changes in the law were rare, the Crown

had plenty of inherited revenues, and the Commons usually did as it

was told (Chrimes, 1967, Ch. 2).

The Tudor period (1485–1603) saw the monarchy at the height of

its power and Parliament became largely subservient to the executive.

The power and wealth of the great barons had been exhausted by many

years of civil wars and inter-family quarrels. The government was

efficiently carried on, particularly during the reign of Elizabeth I,

through professional civil servants, prerogative bodies such as the Privy

Council and its offshoot courts, and a sophisticated network of local

officials appointed by the Crown. This sowed the seeds for the struggles

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Parliament

of the seventeenth century between Crown and Parliament wherein the

king claimed the right to tax and to suspend and dispense with laws.

The common law courts equivocated on these matters. In 1642, how-

ever, Charles I conceded that English government comprised a mixture

of King, Lords and Commons (Answer to the Nineteen Propositions).

During the civil wars of 1642 to 1648 and the ensuing period of

republican government the ‘Long Parliament’ continued in a reduced

and frequently interrupted form. In 1660, Charles II was restored under

the constitution that was claimed to have existed at the beginning of the

civil war, this being a compromise between the Crown and Parliament.

His successor James I attempted to renew some of the claims to royal

supremacy that had led to the downfall of Charles I. Although James’s

religious policy was relatively liberal he was suspected of having a pro-

Catholic agenda, whereas Parliament was a bastion of protestantism.

James was deposed in 1688 by the threat of a Dutch invasion and

a new settlement formalised by the Crown and Parliament Recogni-

tion Act 1689. The group that established the 1688 settlement was

dominated by commoners but included 10 peers. The position of

Parliament was reinforced. Article 4 of the Bill of Rights 1688 forbade

the Crown to raise money without Parliament’s consent, and Article 9

enshrined the right of freedom of speech of Parliament and its mem-

bers. The Bill of Rights also required elections to the Commons. The

Act of Settlement 1700 outlawed royal pardons for those impeached by

the Commons, and forbade persons having offices or places of profit

under the king or securing promises from the Crown, from sitting in the

Commons. This last provision might have led to a genuine separation

of powers, but it was soon repealed to permit ministers to sit in the

Commons. The settlement had no need to make special arrangements

for the House of Lords, the role of which was generally accepted.

The eighteenth century saw the emergence of the ‘balanced con-

stitution’ in which monarch, Lords and Commons were supposed to

check each other but ended in popular agitation for democratic reform.

During most of this period the House of Lords was in practice the

dominant political force because its members had significant influence

upon elections to the Commons. The Commons was elected from a

small number of property owners and in most parts of England the

aristocratic landowners were in a position to manipulate elections.

The main developments of this period were the emergence of the

conventions of cabinet government and ministerial responsibility. The

monarch gradually ceased to run the executive in person and relied

upon a cabinet (which he still appointed) drawn from the ranks of

Parliament. This helped to ensure stable government in that the

212 General Principles of Constitutional and Administrative Law

cabinet had the confidence both of monarch and Commons. George

III (1760–1820) attempted to recover some of the Crown’s waning

influence and this provoked a response from the Commons which

asserted its independence from the Crown. Thereafter the party sys-

tem grew in strength and cabinets asserted the right to meet without

the monarch and to give advice to the monarch. Royal influence

diminished and it became established that the monarch must appoint

as prime minister the person who can command a majority of the

Commons, must act on cabinet advice and must dissolve parliament if

a government loses the support of the Commons. Nevertheless the

modern convention that the monarch always acts on the advice of

ministers was not firmly established until after the First World War.

From the middle of the eighteenth century the House of Commons

gradually became the dominant part of the legislature. Hume believed

that the Commons refrained from flexing its muscles and so unbalanc-