#14968 - Parliamentary Sovereignty - Constitutional Law

PARLIAMENTARY SOVEREIGNTY

AV Dicey (1885): sov of Parliament as “the dominant characteristic of our political institutions” – 2 claims

1. Positive claim: Parliament can make any law

2. Negative claim: no one can impugn the validity of an Act of Parliament

Lord Bingham in R(Jackson) v AG (2006): doctrine constitutes the bedrock of the British constitution

Dicey recognised both “internal” and “external” political limits on the lawmaker

• Internal limits = rules and practices of Parliament + pol and moral pressures imposed by consti conventions, patronage and party discipline

• External limits = what those subject to the law are prepared to accept

Dicey’s version of doctrine of Parl sov increasingly being questioned:

The basis of Parliamentary sovereignty

Without written constitution, basis of Parl sov is unclear no logical reason, although may be practically desirable why there should be a single legal sovereign with unlimited power

• Perhaps only feasible explanation is political: sufficient general acceptance of Parl sov by officials including courts and by the public generally to make the doctrine effective – Lord Hope in Jackson

• Effectiveness only basis of any constitution

However, Lakin (2008): too uncertain doctrine, implausible to suppose that officials + public have accepted it

• Argues doctrine is a myth only the law itself can determine what is legally valid

Wade (1955): parl sov derives from political event, the 1688 revolution, from which Parl emerged triumphant over the Crown – political principle standing outside and above legal system, giving it its validity

Lord Bridge in Factortame (1991) took the view that Parl sov can be altered by statute – if so then doctrine is no more than a provisional working arrangement

Whatever view is taken, courts have to address any uncertainties in the doctrine, where relevant to any case before them – however, according to conventional doctrine, Parliament can undo any court decision.

Meaning of an Act of Parliament

Parl sov concerns only lawmaking power, specifically only Act of Parliament – three levels of rule

1. Basic definition: document that received assent of Queen, Lords and Commons – Courts bound by a document that appears to have received the necessary assent

2. Under Parliament Acts 1911 and 1949 if the Commons so decides and subject to important exemptions, a bill can become law without the consent of HoL after a prescribed delaying period – Courts can decide whether the bill falls within 1911 Act

3. Complex network of rules of composition and internal procedures of each House – matters of Parliamentary privilege, cannot be investigated by courts

Conventional doctrine of Parliamentary Sovereignty

1. Freedom to make any kind of law

Dicey claimed that Parl can make any laws it wishes, irrespective of fairness, justice and practicality

Can enact laws that are grossly immoral or unjust:

• Lord Reid in Madzimbamuto (1959): often said would be unconstitutional for Parl to do something where most people would regard it as highly improper for moral or pol reasons BUT does not mean it is beyond its power to do

2. Parliament cannot be overridden

Int bodies do not have the power in English law to declare an Act of Parliament invalid – IL can alter legal rights in the UK only if adopted by Parliament

In the event of a conflict between a Statute and other kind of law, statute must always prevail

3. Parliament cannot bind its successors

In a sense, limit on Parliament but also means that Parl cannot be restricted by a previous statute, so preserving parl sovereignty idea that no Parl should be able to tie the hands of a future Parl

Statute cannot be protected again repeal

• Ellen Street Estates (1934): legislature cannot bind itself as to the form of future legislation where a later statute conflicts with an earlier one, the latter one will be seen to “impliedly repeal” the earlier one in the absence of express words.

Lord Laws Thoburn (2002): constitutional statute so important that would be protected from implied repeal

• In this way, Parliamentary sovereignty might be reconciled with RoL

Challenging parliamentary sovereignty

1. Devolved authorities

Devolution legislation of 1998 does not directly affect Parliamentary sovereignty

• Gives large law making power to bodies in Scotland, Wales + Northern Ireland but does not prevent Parl from legislating on matters within devolved powers or from removing any devolved powers

Powers of devolved legislatures = delegated can be challenged by JR and overridden by statute

• However, AXA General Insurance (2012): because Scottish Parliament is democratically elected, court will override an Act of Scottish Parliament only in extreme circumstances where it violates RoL

Parliament restricted by convention from intervening in affairs of devolved legislatures + G. Little (2004): pol pressures may lead to legal sovereignty being surrendered in favour of a federal arrangement

2. Manner and form theory: Entrenchment

Authors like Jennings (1959): put forth redefinition theory to circumvent the rule that Parl cannot bind its successors by saying that Parliament can impose procedural (“manner and form”) restrictions on itself, since the legislature must be constituted + regulated by legal rules.

• Legislation would be entrenched by specifying an extra procedure to amend or repeal it

Majority of judges seemed to support theory in Jackson: asked to invalidate the Hunting Act 2004, which had been enacted without the consent of the HoL under the Parliament Act 1949, itself passed under 1911 Act

• 9 Law Lords held that Acts passed under the Parliament Acts were not delegated legislation but full statutes 1949 Act was therefore a proper Act of Parliament and the Hunting Act was lawful

  • Endorsed the possibility of Parliament redefining itself

  • Lord Steyn: definition of Par = matter that Parliament itself would change + Baroness Hale: if Parliament can do anything, it can “redesign itself either in general or for particular purpose”

  • Lord Hope: emphasised that courts must acknowledge political reality – here that laws made under Parl Acts have consistently been regarded as full statutes.

• Majority held that there were no limitations to be read into 1911 Act preventing itself from being altered so as to reduce delaying period 1949 Act + Hunting Act therefore valid

• Disagreement as a matter of interpretation on whether Parl Acts can apply to a bill altering 1911 Act

  • s2 – 1911 Act does not apply to the following:

    • Bill to prolong the life of Parliament beyond 5 years

    • Private bill (i.e. concerning specific persons or places) + bill to confirm provisional order

    • bill introduced in the HoL

  • Lord Bingham + Baroness Hale: no limitation other than those expressly set out limitations could be overcome by using Parl Acts to alter the 1911 Act itself to remove them

  • However majority suggested that this manoeuvre would be unlawful subverting the clear intention of the 1911 Act

• CA had suggested that bill making fundamental consti changes (such as abolishing HoL or violating basic demo rights) could not be passed under Parl Acts, seen as implicitly limiting such change

  • Lords Bingham and Nicholls: no such limitations although former drew attention to the fact that Parl Acts weaken the checks and balances over a powerful executive

  • Lord Steyn went furthest: fundamental violations fo the RoL might be rejected by courts

3. European Union Law

European Communities Act 1972 poses contemporary challenge to orthodoxy of parl sovereignty

• ECJ insisted in Costa v ENEL EU law supremacy over domestic law insisting that MS had in transferring powers to the Community necessarily limited their own sovereign authority

• s2(4): UK law takes subject “subject to EU law” EU law as authoritative provisions

Differing perspectives on the 1972 Act:

• Along traditional line: since a Statute made EU law binding in the UK, a Statute can reverse this

  • Ordinary implied repeal doctrine excluded: Laws LJ Thorbun “constitutional statute”

  • Lord Diplock in Garland v British Rail (1983): statute that unambiguously states that it is to override EU law will prevail

• Conversely, can be argued that 1972 Act imposed a duty on the courts to give priority to EU law

  • Jackson: Lord Hope and Baroness Hale treated EU law as modifying parl sovereignty

Factortame: clash between Spanish fishermen and UK gov. EU law entitled EU members to fish freely in the seas around MS but the Merchant Shipping Act 1988 which restricted fishing to boats flying the UK flag

• Initially, HoL refused to grant an injunction to prevent the Act being enforced no power to grant an injunction against the Crown to prevent the enforcement of an Act of Parliament

• ECJ held that UK court should enforce the law

• Factortame (No2): HoL fell into line and disapplied the UK Statute

  • Its obligation to comply with a principle of Community law, as affirmed by ECJ, required it to deny effect to the terms of an Act of Parliament

Responses to Factortame: revolution view

• Wade’s revolution: doctrine of implied repeal was violated as 1988 Act was disapplied under the ECA 1972 signalled constitutional revolution as 1972 Parliament succeeded in binding 1988 parliament, thus restricting its sovereignty

Responses to Factortame: the evolution view

• Laws in Thoburn: not a constitutional revolution, Parl retained its power to repeal the ECA s2(4) has established a rule of construction for later statutes so that any later statute has to be read in light of EC law, no possibility of implied repeal contingent entrenchment

  • No true delegation of sov in legal terms,...