A possible scenario may arise where Parliament may choose to implement prospective legislation that may not be fully in accordance with existing statute such as the European Communities Act 1972 or the European Communities (Amendment) Act 2002, and as such, Parliament′s unfettered law–making power will not have fully transferred all rights to European bodies under the respective statutes. The reasoning given for the dismissal of this application suggests that abrogation of power may be permissible in certain situations. In McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs, at, Lady Justice Arden suggested that the principle that it was not permissible to transfer responsibility for law making and government away from the United Kingdom did not necessarily vitiate Parliamentary supremacy. Parliamentary governing power and the responsibility for law-making should not be abrogated by the transfer of responsibility away from the United Kingdom. The fundamental right of the British people to be governed by an elected legislature and the executive of the United Kingdom should not be violated by anything more than a vesting of law-making responsibility in a delegate power through an Act of Parliament. This would itself be irrational and would constitute an unconstitutional delegation of power to a foreign government." Constitutionality ".It would require the Defendant to abrogate decision-making responsibility for the level of ex gratia payments in the UK and defer to the resourcing decisions by the government of another sovereign state operating under different fiscal constraints and policy circumstances.
In contrast, the Defendant's Summary Grounds of Defence claimed that implementing Recommendation 6(h) would be impractical and unworkable, and asserted that: The claimant suggested that Government had abrogated their responsibility: ″In basing the Decision on its own assessment of fault the Government has taken an irrelevant consideration into account and thereby abrogated its responsibility to the victims to compensate them adequately for living with HIV and/or Hepatitis C.″ The claim form, dated 18 August 2009, originally included the additional ground that Government took into account irrelevant considerations. , there was reference to abrogation in the 2009 legal papers of both the defendant and the claimant which led up to the hearing the following year. In the judicial review R (on the application of Andrew Michael March) v Secretary of State for Health which challenged the UK Department of Health's decision not to implement Recommendation 6(h) of the Archer Independent Inquiry
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