#3586 - Parliamentary Sovereignty - Constitutional Law

Should Parliament be sovereign?

• In theory Parliament can enact any sort of unjust law it wants. Political constitutionalists would argue that such moves would be met by extreme civil disobedience and so Parliament would not act like that. Legal constitutionalists believe the court needs to prevent the legislature from acting like this.

• Legal constitutionalism allows for a tyranny of the majority argument to be presented. This is inherently undemocratic, but thoroughly important! We rely on the majority to have a moral code, but if they do not then should someone intervene?

• Note that the judiciary in other countries are very political.

Parliamentary Sovereignty

• Parliament is legally sovereign. Parliament can make and unmake any law that it so wishes – in theory. On the flip side, nobody can legally ignore an Act of Parliament (Dicey defined it in the positive and negative).

• Can Parliament bind its successors? This is the big question, raised by HLA Hart.

Parliamentary sovereignty as a constitutional fixture

• Parliament can always repeal a previous Act. They can do so through express or implied appeal. Any legal provision that an Act cannot be repealed is without legal effect.

  • Express – they say they’re repealing the Act

  • Implied – they legislate on something already legislated on. The new legislation supersedes the old. Doctrine endorsed in Ellen Street Estates v Minister of Health.

The continuing theory

• Adheres to Dicey’s view. Parliament can make or unmake any law, nor can it bind its successors.

• Sovereignty is either continuing – a kind that cannot be undone – or self-embracing, in which case Parliament can surely undo its own sovereignty by altering the rule of recognition as we see it in the UK (put forward by Hart).

• Wade argues for continuing sovereignty:

  • Parliament’s power was acquired during the Glorious Revolution in 1688, after Parliament had been fighting with the monarch for constitutional primacy. The monarch and the courts agreed that they would not be able to dispense with Acts of Parliament. So Parliament did not create its own sovereignty by law, rather it is a political fact upon which the entire system of legislation is based. Wade refers to parliamentary sovereignty as ‘the ultimate political fact’ – it is not a legal fact and therefore Parliament does not have the power to undo it, for Parliament is only sovereign in the realm of law.

  • The rule of recognition. In the UK it is:

    • Common approval + Lords approval + Royal Assent + Not inconsistent with any provisions in a subsequent Act.

      • This renders an Act legally valid.

      • Wade says that we cannot change this rule of recognition. And we thus cannot entrench legislation. In countries where the rule of recognition is in a written constitution, it can be amended, but this is not possible in the UK because sovereignty is a political, not legal, fact.

• Evaluation (by Elliott):

  • Wade’s view is an exclusively historical explanation.

  • Incoherent – just because sovereignty isn’t granted by law doesn’t mean it can’t be legislated upon through law.

  • Says that Parliament cannot constrain itself. But it seems to have done:

    • ECA 1972. Wade claims that this might be a ‘constitutional revolution’, but this argument is not satisfying.

    • Parliament Acts. Discussed in:

      • Jackson – C claimed The Hunting Act 2004 was invalid because it was used using provisions of the Parliament Act 1949, which itself was invalid due to the fact it was passed using the 1911 Act. They argued the 1949 Act was secondary legislation that could be overruled by a court. The court disagreed – the 1911 Act made clear that Acts being passed under it were Acts of Parliament. Such acts could not be derogated from in a court

        • Lord Steyn said that the courts had laid down the principle of parliamentary sovereignty, and that if they needed to clarify it they could.

        • Baroness Hale said that she saw no reason if Parliament could redefine the rule of recognition upwards (endorsing the manner and form view), why it should not be able to revise it downwards (by removing the Lords) in order to create a full Act of Parliament.

The new view

• Also known as the manner and form theory. First seen put forward as an argument by Jennings, who argues that statute trumps the common law, so even if there is a common law tendency to do one thing, Parliament’s statute is ultimately sovereign – this applies to what the rule of recognition is, so the court can’t actually control the rule of recognition.

• Says that although Parliament cannot entrench absolutely, it can contingently entrench i.e. lay down criteria that have to be fulfilled in order to a future Parliament to alter their Act e.g. 2/3 majority instead of simple.

  • Good thing because it provides a middle ground between no entrenchment (where all laws are equal) and absolute entrenchment (where some laws may be beyond repeal).

• Supporters say it adheres to Parliamentary sovereignty because it still means that Parliament can enact, amend or repeal any law, just in a way that requires greater conditions to be met (just as normal actions require Commons majority).

• They argue that this is the current state of UK law. But this is not really true:

  • Ellen Street Estates - Acquisition of Land Act 1919 and the Housing Act 1925. The former Act said that future Acts which affected the same subject area would not have legal effect – they would have to use words of express repeal. They claimed that because the 1925 Act used no such words there was no implied repeal. The courts rejected this argument.

  • Thoburn agreed that being sovereign, Parliament cannot abandon its sovereignty – it can’t be bound any more by words precluding implied repeal as it can express repeal.

  • However, note dicta from Hale and Steyn in...