#3120 - Parlimentary Sovereignty - GDL Constitutional and Administrative Law

- Traditional analysis: no legal limits to legislative competence of Parliament.

• since 1688 Glorious Revolution: Parliament enacts legislation, formal assent of Crown.

• Dicey: ‘continuing theory of Sovereignty of Parliament’ – ‘right to make or unmake any law whatsoever’ + ‘no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’.

  • 1. Parliament is the supreme law-making body

  • 2. No Parliament may be bound by a predecessor or may bind a successor.

  • 3. No person or body may question the validity of an enactment of Parliament.

1. Parliament is the supreme law-making body: may make any law.

• [Dicey]: no substantive legal limits regarding legislation Parliament may enact – ‘make any law whatsoever’ (but: clear political limits).

• no subject limitations: Parliament can legislate on any subject, no matter how absurd, unjust, impractical.

  • [Sir Leslie Stephens] (1882): e.g. law ordering death of all blue-eyed babies.

  • can alter own constitution: Septennial Act 1715 (altered terms of office); Parliament Acts 1911 + 1949 (limited power of HoL, a constituent body).

  • could legislate against human rights: R v SS for Home Department ex parte Simms [2000] – [Ld Hoffman] obiter.

• no geographical limitations: Parliament can legislate for territory beyond jurisdiction of UK, even if this produces conflict with international law.

  • Mortensen v Peters [1906]: court bound to apply Herring Fisheries (Scotland) Act 1889, even though fishing restricted beyond 3-mile international law limit.

  • Cheney v Conn [1968]: legislation not constrained by Geneva Convention.

• no temporal limits: Parliament can pass laws which are retrospective as well as prospective.

  • War Damages Act 1965: effect of retrospectively nullifying HoL decision in Burmah Oil Co v Lord Advocate [1965].

  • statutes valid until repealed: e.g. Treason Act 1351 could still be enforced.

2. No Parliament may be bound by a predecessor or bind a successor: may repeal any law.

- Traditional view: Parliament can never be bound by or bind another Parliament.

• [Dicey]: Parliament can ‘unmake any law whatsoever’.

• rationale: each Parliament must enjoy same unlimited power not bound by predecessors + cannot bind successor.

• repeal – 2 forms:

  • 1. express repeal: legislation expressly states intention to repeal earlier Act.

    • e.g. Regulation of Investigatory Powers Act 2000: repeals Interception of Communications Act 1985.

  • 2. implied repeal: previous Act repealed to extent of inconsistency with new.

    • e.g. Vauxhall Estates v Liverpool Corporation [1932] + Ellen St Estates v Minister of Health [1934]: court bound to apply Housing Act 1925 over Acquisition of Land Act 1919 (even though stipulated provisions were to prevail over any others to be passed).

    • [Maugham LJ] (Ellen St): ‘impossible for Parliament to enact that in a subsequent statue dealing with the same subject matter there can be no implied repeal’.

    • but: new view – may not apply to ‘constitutional statutes’ (e.g. HRA 1998, ECA 1972).

• BUT: debate – can Parliament limit its own power? (3 potential areas: substantive, manner, form).

- 1. Substantive: can Parliament bind as to content of future legislation?

• The Union Legislation: argument that Acts of Union intended to be higher form of law substantively entrenched.

  • theory: Acts of Union enacted by English + Scottish/Irish Parliaments, not UK Parliament UK Parliament limited by constitutional document.

    • [J Mitchell]: UK Parliament ‘born unfree’.

  • cases: some support in obiter comments.

    • McCormick v Lord Advocate [1953]: [Ld Cooper] obiter – unlimited sovereignty ‘English’ principle not inherited by UK Parliament.

    • Gibson v Lord Advocate [1975]: [Ld Keith] obiter – argument could be made that legislation in breach of Act of Union (e.g. Art XVIII: changes to private law must be for utility of Scottish subjects’).

  • but: arguments weak: UK Parliament has altered many principles in Acts of Union [Dicey]: no higher legal status than any other Act.

• Grants of Independence: Act of Westminster 1931 s4 – Parliament will not legislate for Dominions without request + consent substantive + procedural restriction.

  • theory vs. political reality.

    • British Coal Corp v The King [1935]: [Ld Sankey] obiter – in theory, Parliament can still legislate, but: ‘that is theory and has no relation to realities’.

    • Blackburn v AG [1971]: [Ld Denning] obiter – ‘Freedom once given cannot be taken away. Legal theory must give way to practical politics’.

  • but practicality irrelevant? UK courts must still uphold laws.

    • Manuel v AG [1983]: [Megarry VC] – UK courts must still enforce; valid even if not practically enforceable.

- 2. Manner: can Parliament prescribe manner in which legislation passed/repealed?

• traditional view: no limits in theory or practice.

  • theory: statute requiring special procedure for amendment/repeal binding can be repealed in usual way.

  • practice: Enrolled Bill doctrine – Pickin v British Railways Board [1974]: courts have no power to declare Act invalid (although cf. Jackson).

• but: new view: HRA 1998 + ECA 1972 – Parliament binding successors.

  • e.g. R (on app. of Jackson) v Attorney General [2005]: [Baroness Hale] obiter: ‘Parliament has, for the time being at least, limited its own powers’

• + previous occasions:

  • Att-Gen for New South Wales v Trenthowan and Others [1932]: requirement for referendum before Bill to abolish upper House (imposed by Constitution (Legislative Council) Amendment Act 1929) binding entrenchment possible.

    • but: because NSW deemed to be legislative body having subordinate powers (although [Dixon J] obiter: could also apply to UK Parliament).

  • R (on app. of Jackson) v Attorney General [2005]: HoL – Parliament able to use s2(1) Parliament Act 1911 to modify itself Parliament Act 1949 (overturning CoA – Parliament cannot use 1911 Act to make major changes).

    • also NB: court distinguished Pickin – able to scrutinise Act of Parliament.

- 3. Form: can Parliament require future statute to adopt specific words to repeal?

• yes – strong argument: HRA 1998 + ECA 1972 – ‘read in’ in to subsequent statutes unless Act express in intention to overrule.

• but: not v. onerous – limited entrenchment at best.

3. No person/body may question the validity of an enactment of Parliament

- Traditional view: nobody can question validity of Acts, in particular courts + Crown.

• pre-1688: courts asserted right to strike down legislation contrary to common law (natural right + reason)

• post-1688: statute overrules common law – courts respect supremacy of Parliament.

  • no judicial review: either of 1. procedure: irregularity in way statute went through Parliament; or 2. substance: contents of statute.

  • BUT: debate.

- Procedure: no judicial review of manner in which legislation has been passed?

• traditionally no review:

  • Edinburgh and Delkeith Rly v Wauchope [1842]: procedural irregularity cannot void act – [Ld Campbell]: ‘all that a court of justice can look to is the parliamentary roll’, cannot inquire into manner in which Act passed.

  • Pickin v BRB [1974]: enrolled bill rule.

• but R (on app. of Jackson) v Att-Gen [2005]: HoL – court has jurisdiction to decide if Act valid.

  • background: Parliament Act 1949 used procedure in Parliament Act 1911 to amend the 1911 Act.

  • [Ld Bingham]: Pickin distinguished (had been passed by both Houses, unlike 1949 Act).

  • [Ld Hope]: ‘no absolute rule that the courts could not consider the validity of a statute’

- Substance: no judicial review of the content of legislation?

• 1. statute may alter the Constitution.

  • Ex p Cannon Selwyn [1872]: Irish Church Act 1869 can disestablish church, contrary to Act of Union with Ireland. [Cockburn CJ]: no judicial body can question validity of an Act.

• 2. statute overrides public international law

  • Cheney v Conn [1968]: Finance Act 1964 valid even if conflict with Geneva Convention. [Ungoed-Thomas J]: statue ‘prevails over every other form of law’.

• 3. statute not subject to fundamental constitutional principles

  • R v Jordan [1967]: argument that Race Relation Act 1965 contravened constitutional freedom of expression not allowed.

Current issues: 4 particular challenges to traditional theory of Parliamentary Sovereignty.

• 1. Devolution

• 2. Human Rights Act 1998

• 3. EU membership

• 4. obiter debate in Jackson

- Challenge 1: Devolution

- Scotland Act 1998: new Scottish Parliament – right to legislate on some issues.

• but: s28(7): UK Parliament still sovereignty to legislate for Scotland if it desires.

• no strict reduction in sovereignty, but political: would be difficult to take power back.

- Challenge 2: Human Rights Act 1998

- Formally: no reduction in legal sovereignty of Parliament from HRA 1998.

• 1. s4 HRA: courts cannot strike down primary legislation, only declare incompatible with ECHR s4(6): Parliament not required to change incompatible statute.

• 2. HRA itself could be repealed – ordinary Act.

• BUT: practical reduction of sovereignty? – declarations of incompatibility + interpretation of law.

- Declarations of incompatibility: practical terms – courts can suspend statutes.

• political consequences: effectively oblige Minister to arrange for amendment.

• + Act practically ineffective until amended: every time applied, a person could have recourse to ECtHR.

- Interpretations of Law: practical terms – courts can change meaning of statutes.

• s3 HRA: courts required to interpret legislation to be compatible with ECHR.

  • v. significant scope: ‘as far as possible’ vague qualification.

• application: R v A (Complainant’s...