(4) Parliamentary Sovereignty Flashcards
What is Parliamentary Sovereignty?
The legally unlimited power of Parliament to enact legislation on any topic, in any form of words and at any time of their choosing.
What was Dicey’s definition of Parliamentary Sovereignty?
‘The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’
What are the two distinct aspects of Dicey’s definition?
Positive Aspect - Parliament can ‘make or unmake any law’
Negative Aspect - ‘[n]o person or body … [possesses] a right to override or set aside the legislation of Parliament’
What follows from Parliament’s ability, according to Dicey, to make or unmake any law?
If there is no law Parliament is incapable of changing it can be said that no one statute can be considered more important than any other piece of primary legislation. Thus, there is no distinction between ordinary and constitutional laws.
How does Parliament’s unfettered legislative power effect the idea of entrenchment?
The idea of entrenchment is also seemingly incompatible with Parliamentary Sovereignty, for under this doctrine Parliament are unable to impose such limitations upon itself.
How are Acts of Parliament immune to review by anyone bar Parliament itself?
In the UK, unlike in other countries, even the highest judicial body – the Supreme Court – lack the authority to invalidate legislation passed by Parliament, even where it appears to violate the terms of the constitution.
What did Jennings say about the power conferred upon Parliament by the positive and negative aspects together?
He said, that in theory - Parliament may remodel the British constitution, prolong its own life, legislate ex post facto, legalise illegalities … entirely without legal remedy’. In practice it’s slightly more complicated.
What are the issues with the origins of Parliamentary Sovereignty?
- There is no codified constitution from which it can be said to stem
- It cannot be said to come from an entrenched constitutional document
- It cannot be said to come from the Common Law for this would place the Courts above Parliament
What do some academic commentators argue is the basis for Parliamentary Sovereignty?
For some contemporary commentators the importance of Parliamentary Sovereignty stems from its democratic nature. Parliament should be the dominant force in the constitution because of its largely democratic mandate – the majority of the members of it are elected by the public.
What is the flaw with the democratic foundation argument of Parliamentary Sovereignty’s origins?
While such a position explains why Parliament continues to be of relevance and importance it perhaps fails to explain the origins of Parliamentary Sovereignty as Parliament historically has not been able to boast such democratic features/associations.
How did the relationship between Monarch and Parliament develop the notion of Parliamentary Sovereignty?
The seventeenth century struggles between Parliament and the Monarchy, in part, gave rise to the idea of Parliamentary Supremacy. These disputes centred around where ultimate constitutional authority should reside – the Monarch of Parliament.
What was the significance of the Glorious Revolution 1688 and the Act of Settlement 1701 in developing the modern constitution?
These two pieces of legislation together cemented the transition from monarchical to parliamentary government and established the ultimate supremacy of parliament over the competing source of constitutional authority in the state – the Monarch.
Do Parliament enjoy completely unfettered legislative power?
In Dicey’s definition Parliament may theoretically legislate to achieve any aim – there is not an implication, however, that there are no restrains upon Parliament when attempting to do so.
How may Parliament be subject to restraints when seeking to pass legislation?
Dicey’s definition was very much a legal one – Parliament’s legally unfettered power may, however, be subject to political conditions. Indeed, Dicey’s position can be said to ‘denot[e] only an absence of legal limitations, not the absence of all limitations or, a more appropriate word, inhibitions on Parliament’s actions’.
What is the importance of these potential political restraints on Parliament’s legislative power?
These political conditions or expectations serve to practically prevent Parliament from passing given enactments – this tempers the potential absolutism of Parliament’s legal power.
Can the courts find Acts of Parliament invalid under Parliamentary Sovereignty?
No, the courts have made clear that they are unable to Acts (say found to be morally abhorrent by the general public) to be invalid.
What did Baroness Hale say about the restrictions on Parliamentary Sovereignty in the Jackson Case?
She noted – ‘the constraints upon what Parliament can do are political and diplomatic rather than constitutional’.
What is the process of devolution?
Essentially, Devolution is the process of delegating power from a central legal authority (Parliament at Westminster) to a subordinate body (Scottish Parliament).
How does devolution potentially create issues in regards to Parliament’s sovereignty?
On an orthodox reading, devolution is compatible with parliamentary sovereignty because it involves the delegation of power from Westminster by statute, rather than the division of it, so ‘does not affect the power of the Parliament of the UK to make laws for Scotland’, if Parliament wished to legislate in an area of devolved competence, or restrict the competence they grant, they need only enact subsequent legislation. However, practically this is more complicated as constitutional conventions may present a barrier to this.
How does Bogdanor suggest the devolution of power to Scotland by the 1998 Scotland Act may limit Parliament’s legislative power?
As the 1998 Act was passed by 75% of the Scottish electorate at a referendum Bogdanor has suggested it has an ‘extra validity’. Therefore he suggests that a similar Scottish endorsement ought to be required for Parliament to repeal or significantly amend the scheme of devolution. This ‘political entrenchment’ seems to place a restriction of sorts upon Parliament’s ability to legislate to limit the powers available to the institutions of devolved government.
How does The Sewel Convention threaten the unfettered legislative power of parliament?
Essentially, this constitutional convention holds that Parliament will not ordinarily legislate on a devolved issue affecting Scotland unless the consent of the Scottish Parliament has been gained in an advance via a legislative consent motion. Thus limiting the legislative power of Parliament.
How severe is the infringement posed by the Sewel Convention?
Despite being formalised by the Scotland Act 2016 the Sewel Convention remains operative as a ‘political restriction on the activity of the UK Parliament’ and thus wouldn’t be judicially-enforced – as established by the Supreme Court in the Miller Case.
Why does Jennings suggest the label of Parliamentary Supremacy is more appropriate than Parliamentary Sovereignty?
He argued that If we are to acknowledge the potential for various political restrictions upon Parliament the label of sovereign may perhaps be inappropriate - ‘If [we are to acknowledge a source of political authority that may restrict Parliament’s legislative latitude] legal sovereignty is not sovereignty at all. It is not supreme power.’
How do the courts potentially limit the absolute sovereignty/supremacy of Parliament?
While it is the role of Parliament to legislate, it is the role and duty of the courts to interpret and apply legislation – ‘it is always for the courts, in the last resort, to say what is a valid Act of Parliament’.
Can parliament’s powers be restricted by the decisions of its predecessors?
According to Dicey the answer would be a resounding no – this account suggests that each general election results in the formation of a new Parliament with the exactly the same sovereign powers as that before it. This idea is known as ‘continuing sovereignty’ – the only limit on Parliament is that it cannot limit its own powers.
How is the idea of continuing sovereignty a potentially problematic one?
The potential circularity of the legal sovereignty debate becomes apparent – if Parliament is truly sovereign and can legislate to achieve anything – why can it not legislate to bind itself?
How may Parliament legislate to the contrary of previous enactments? (evidence of continuing sovereignty)
- The legislative process of express repeal may see Parliament legislate to override previous enactments, either partially or in their entirety - e.g. Constitutional Reform Act 2005
- The legislative process of implied repeal essentially allows for the repeal of old legislation, where it conflicts with more recent enactments, on the grounds that the older legislation has been repealed by implication - If two inconsistent Acts be passed at different times, and if obedience cannot be obeyed without derogating from the first, it is the first which must give way’.
Can Acts of Parliament be protected from future repeal?
Given that Parliament are unable to bind themselves, protecting a statute or provision from repeal is seemingly legally impossible. Nonetheless, Parliament have enacted legislation that purports to apply in perpetuity. An example was s 1 of the Scotland Act 2016 declaring the Scottish Government and Parliament to be a ‘permanent part of the UK’s constitutional arrangements’.
What did LJ Maugham say in the case of Ellen Street Estates v Minister of Health on the issue of Acts of Parliament being protected from future repeal?
In this case LJ Maugham seemingly complied with Dicey’s vision of ‘continuing sovereignty’ saying previous Acts of Parliament could not place restrictions of form (to achieve repeal) on later ones.
What is the competing school of thought to continuing sovereignty?
Self-embracing sovereignty - this advances the argument that Parliament can in fact place certain limitations on the use of its own powers.
Under self-embracing sovereignty what restrictions are Parliament permitted to place upon itself?
According to this ‘new’ view of sovereignty Parliament may place procedural restrictions upon itself which don’t completely preclude the prospect of parliament legislating in a particular way, but rather ensure Parliament do so in a certain way to achieve a certain aim. This view stems from the idea that Parliament’s power to change the law should include the power to change the law affecting itself.
What are the three typical types of limitation to the power of Parliament that may occur under the self-embracing theory of sovereignty?
- Limitations of manner
- Limitations of form
- Limitations of substance
What are limitations of manner?
These types of restrictions would typically require a particular legislative procedure to be adopted before a particular legislative provision might come into effect or might be effectively repealed.
What is an example of a restriction of manner?
An example of a restriction of manner can be seen in s 1 of the Northern Ireland Act 1998 which stipulates that NI cannot separate from the UK without a majority vote in a referendum.
What are limitations of form?
Limitations of this nature would perhaps specify a particular form of words need be used to repeal a legislative measure.
What is an example of a restriction of form?
An example of a restriction of form is apparent in s 33(1) of the Canadian Charter of Rights and Freedoms – this ‘notwithstanding clause’ enables suspension of the Charter in respect of particular pieces of legislation.
What are the shared characteristics of restrictions of manner and form?
Limitations of manner and form essentially place procedural hurdles in the way of Parliament achieving certain legislative objectives – the relevant objectives are still achievable provided the relevant process is adhered to – thus there restrictions are of process rather than substance.
What are limitations of substance?
Limitations of substance are more complex. Substantive restrictions are those that prevent Parliament from legislating on an entire topic and/or from achieving a particular aim (regardless of manner/form).
How reconcilable are the various limitations (manner, form and substance) with the notion of legislative sovereignty?
No legislature could argue to possess legislative sovereignty where limitations of substance are present – limitations of manner or form are, however, more reconcilable with this concept.
How did Heuston formulate the idea of self-embracing sovereignty?
- Sovereignty is a legal concept – the rules of which identify the sovereign and prescribe its composition and functions are logically prior to it
- There is a distinction between rules which govern, on the one hand, (a) the composition, and (b) the procedure, and, on the other hand (c) the area of power, of a sovereign legislature.
- The courts have jurisdiction to question the validity of an alleged Act of Parliament on the grounds 2(a) and 2(b) but not on the ground 2(c)
- This jurisdiction is exercisable either before or after the Royal Assent has been signified – in the former case by way of injunction, in the latter by way of declaratory judgement.
In practice, how does the self-embracing theory of sovereignty allow Parliament to limit its own legislative power?
The self-embracing theory of sovereignty posits that Parliament may limit its own power, not by placing substantive restrictions on the topics on which legislation may be passed, but through the procedural limitation of making the validity of future legislation contingent on certain manner and form requirements.
What case is used in support of the notion that Parliament can be subject to manner and form requirements?
The Australian case of Attorney General for New South Wales v Trethowen. The difficulty in applying this case in the domestic context is that the case concerns a explicitly limited legislature rather than one that purports to be sovereign.
How do courts distinguish between Primary Legislation and those that hold less significance?
Historically this was done by looking to the parliamentary roll, the vast majority of Acts of Parliament will now bear the following words of enactment;
‘Be it enacted by the Queen’s most Excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: - ‘
Upon distinguishing primary legislation to the courts have authority to challenge or question Acts of Parliament?
If the customary words are present, it is not for the court to question the process by which such legislation was adopted or pose any other question regarding the authority of the act. The Courts are concerned only with the enforcement of the end result, the processes and procedures by which the Act came to be on the statute book are matters for Parliament itself.
What are the means by which Acts of Parliament may be passed?
It is an oversimplification to suggest the only means by which primary legislation can be enacted is through consent of the House of Commons, Lords and Monarch. Indeed, since 1911 there has been a procedure which allows the House of Commons to propose Bills for Royal Assent without agreement from the House of Lords.
What prompted the initiation of the 1911 Act?
The Parliament Act that allowed for this alternative means of enacting Primary Legislation came to be following a dispute between a liberal government who saw a Conservative dominated House of Lords greatly limit there ability to legislate. Following a threat by the Liberal government to persuade the King to pack the House of Lords with Liberal Peers, the House of Lords agreed to the Parliament Act which saw a reduction to it’s powers and enabled this alternative legislative procedure.
How did the 1911 Parliament Act curtail the power of the House of Lords?
Previous powers of veto were done away in place of powers of delay. Following this it was established that any Public Bill that wasn’t (a) a Money Bill or (b) a Bill which purported to extend the life of parliament beyond five years may - following its rejection in two successive session by the upper house - become an ‘Act of Parliament’ without consent from the House of Lords. The House of Lords was transformed from a house of veto to a house of deliberation and revision.
