#17237 - Parliamentary Sovereignty - GDL Constitutional and Administrative Law

Madison in the Federalist Papers argued some values were too important for ordinary politics

Entrenchment

• Procedural Entrenchment - procedurally protected law (e.g. a super majority required)

• Substantive Entrenchment – laws that cannot be repealed.

West Virginia on v Barnette US Supreme Court (1943)

• Justice Robert H. Jackson: forceful defence of free speech and constitutional rights generally as being placed “beyond the reach of majorities and officials.”

US the the sovereign lawmaker is 'the people'

• The people are: 2/3 majority in Congress or 2/3 of States to propose and 3/4 of state legislatures to ratify

Sovereignty in the UK – four ideas:

• 1) The Crown (cf. James I)

• 2) Parliament (Parker – tripartite structure represents estates of the realm)

• 3) Common Law (Dr Bonham’s Case (1610))

  • Coke LJ “When an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it”

• 4) Natural Law

  • Day v Savadge (1615) per Hobart CJ: “even an Act of Parliament, made against natural equity, as to make a man judge in his own case, is void in itself”

Post 1688 there was a presumption that Parliament was sovereign lawmaker (Blackstone (mid C17) and Dicey (late C19))

• Civil War (1688) and Declaration of Right settled this dispute

• Alleged James II had infringed upon liberties by levying taxes and suspending laws without Parliaments consent. Implication people naturally possess these liberties.

• James was deposed and replaced by William of Orange and Mary

  • A condition of doing this was accepting that sovereign legal power lay with Parliament.

Blackstone’s Theory (1765)

• American revolutionary time - If [the legislature] will positively enact a thing to be done, the judges are not at liberty to reject it – Judges not above legislature

• Bernard Bailyn argues Americans wanted to search for the seams along the fabric of

Diceyan Orthodoxy

• Two elements to his statement of constitutional parliamentary sovereignty.

  • 1) The positive limb: Parliament can enact legislation on any subject matter whatsoever;

  • 2) The negative limb: no court possesses the legal power to overturn or refuse to apply an Act of Parliament

• Therefore

  • There is no distinction in substantive terms between ordinary and fundamental laws enacted by Parliament

  • There is no distinction in procedural terms between ordinary and fundamental laws enacted by Parliament

• City of London v Wood [1701]

  • “an Act of Parliament can do no wrong, though it may do several things that look pretty odd".

The Enrolled Bill Rule (Wachope; Lee v Bude and Pickin)

• Edinburgh Railway v Wauchope (1842)

  • Landowner affected by a private Act of Parliament authorising compulsory purchase of land for the construction of a railway, tried to argue court should declare act void for failing to give sufficient notice.

  • Lord Campbell thought that judging the constitutional adequacy of proceedings in either the Commons or the Lords was entirely beyond the court’s powers.

• Lee v Bude and Torrington Railway (1871)

  • Wile J: “if an Act of Parliament has been obtained improperly it is for the legislature to correct it by repealing it: but so long as it exists as law, the Courts are bound to obey it”

• British Railways Board v Pickin.

  • Mr Pickin alleged that British Rail had steered a private Bill through Parliament without giving the necessary notices to affected landowners.

  • Lord Reid explicitly denied that the courts had any power to question the legality of a Bill’s passage through Parliament.

    • Enrolled bill Rule: once a bill is on the statute books it cannot be altered by anyone other than parliament.

The Doctrine of Implied Repeal

• Vauxhall Estates Ltd v Liverpool Corpn [1934] and Ellen Street Estates Ltd v Minister of Health [1934]

  • Acquisition of Land Act 1919 s.7

  • The landowners affected sought to have compensation assessed on the basis used in the 1919 Act.

  • Housing Acts of 1925 and 1930 made these provisions less generous.

    • Cannot procedurally entrench act - 1919 Act: “as inconsistent with this Act those provisions shall cease or shall not have effect”

  • Distinguished express and implied repeal - ‘functionalist’ approaches to parliamentary sovereignty

    • Summarily rejected at appeal: the judges adopted instead a formalist approach that the courts unquestioningly obey the most recent Act of Parliament.

• Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590

  • Scrutton LJ: “Parliament can alter an Act previously passed…by enacting a provision which is clearly inconsistent with the previous Act”

    • Thus Parliament can impliedly repeal any previous act – it is the latest statement that prevails in court, Parliament can bind itself.

  • Maugham LJ: “The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation”

Relationship with International Law

• Mortensen v Peters [1906]

  • 1889, the British Parliament passed the Herring Fishery (Scotland) Act, made it an offence to catch herring in the Moray Firth without a licence.

  • Mortensen was a Danish captain of a Norwegian Trawler breached these laws, argued that this breached international law which limited jurisdiction to three miles off coast.

  • Lord Salvesen: “In this court we have nothing to do with...whether an Act of the legislature is ultra vires … For us, an Act of Parliament…is supreme and we are bound to give effect to its terms”

• Treaties are negotiated and formally entered into by the Crown (or ‘the government’) through its prerogative powers, not by Parliament.

  • Treaty signed by the British government can only have legal effect in Britain if it is incorporated into British law by an Act of Parliament.

• Cheney v Conn [1968] 1 WLR 242

  • Cheney claimed that some of his tax money was being used to build nuclear weapons, contrary to the principles of the Geneva Convention, a treaty the British government had signed.

  • Argued illegal for Parliament to enact a statute that raised money so that such weapons could be built.

  • His case rested on sections of the Treaty that remained unincorporated.

  • Ungoed-Thomas J: “[W]hat the statute itself enacts cannot be unlawful, because what the statute says is itself the law, and the highest form of law that is known to this country.

Jennings Thesis: we cannot find the doctrine of parliamentary sovereignty laid down in a statute.

Distinguishes between continuing and self-embracing theories of parliamentary sovereignty.

• Continuing theory maintains that the sovereign Parliament is a perpetual institution, Parliament need pay no heed at all to what its predecessors have done. (Diceyan)

• Self-embracing theory holds that Parliament’s sovereignty includes the power to bind itself and its successors.

‘Rule of Recognition’ – why do the courts recognise statute as the highest form of law?

Three steps to Jenning’s thesis

• 1) The rule of recognition is a common law concept.

• 2) Statute is legally superior to the common law.

• 3) Parliament can therefore enact legislation changing the rule of recognition and requiring the courts to accept that some Acts are protected from repeal by a simple majority vote.

Manner and Form Entrenchment

• Trethowan v Attorney-General for New South Wales (1932)

  • New South Wales Parliament was created by a British statute; ‘The Constitution Statute 1855’.

  • 5 of British statute, the Colonial Laws Validity Act 1865, statutes enacted by certain colonies that sought to alter their own ‘constitution, powers or procedures’ would have legal effect only if passed ‘in such manner or form’ as the law then in force in the colony demanded.

  • New government argued that successive New South Wales Parliaments, just like the British Parliament, were not bound by any legislation passed by their predecessors

  • Trethowan argued that this must comply with the manner and form requirement.

  • Court held in T’s favour.

• Harris v Donges (No.1) (Minister of the Interior South Africa) (1952)

  • 1909 the British Parliament passed the South Africa Act, s.152 - Removal of voting rights on grounds of race requires 2/3 majority of 2 houses sitting together

  • Nationalist government: The Separate Representation of Voters Act 1951

  • Harris argues that this is an invalid law under 1909 South Africa Act, South African Parliament takes a Diceyan position.

  • Judgment hinges on two presumptions

    • 1) sovereign country need not have a sovereign legislature (e.g. US withholds some power from its legistlature)

    • 2) country can have a sovereign Parliament without according sovereignty to a simple majority procedure.

• After Harris (No.1) South African government created a new governmental institution to hear appeals from the Appellate Division brought by the government only. Only appellee could appear before the court.

• Harris (No.2) court held that any legislation dealing with procedurally entrenched clauses must be reviewed by a ‘court’. The new High Court of Praliament was not a ‘court’ as it was neither independent nor staffed by legally qualified judges.

  • Parliament responded with two acts: one increased the size of the appellate court (filling it with a majority of gov. supporters) and one increased the size of the Senate (filling it with government supproters)

• Collins (Harris No.3) Harris gives up but co-plantiff collins continues.

  • The new court (including 4 of the original judges) uphold each Act

  • One dissentient – Oliver Schreiner – invalidates them all as part of a ‘scheme’ to subvert the entrenched clauses.

• Wade: if one...