(4) Self-Limitations and Self-Embracing Sovereignty

Question 1

Can parliament’s powers be restricted by the decisions of its predecessors?

Answer 1

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.

Question 2

How is the idea of continuing sovereignty a potentially problematic one?

Answer 2

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?

Question 3

How may Parliament legislate to the contrary of previous enactments? (evidence of continuing sovereignty)

Answer 3

1. 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
2. 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of old legislation, where it conflicts with more recent enactments, on the grounds that the older legislation has been repealed by implication - If two inconsistent Acts be passed at different times, and if obedience cannot be obeyed without derogating from the first, it is the first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’.

Question 4

Can Acts of Parliament be protected from future repeal?

Answer 4

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’.

Question 5

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?

Answer 5

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.

Question 6

What is the competing school of thought to continuing sovereignty?

Answer 6

Self-embracing sovereignty - this advances the argument that Parliament can in fact place certain limitations on the use of its own powers.

Question 7

Under self-embracing sovereignty what restrictions are Parliament permitted to place upon itself?

Answer 7

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.

Question 8

What are the three typical types of limitation to the power of Parliament that may occur under the self-embracing theory of sovereignty?

Answer 8

1. Limitations of manner
2. Limitations of form
3. Limitations of substance

Question 9

What are limitations of manner?

Answer 9

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.

Question 10

What is an example of a restriction of manner?

Answer 10

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.

Question 11

What are limitations of form?

Answer 11

Limitations of this nature would perhaps specify a particular form of words need be used to repeal a legislative measure.

Question 12

What is an example of a restriction of form?

Answer 12

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.

Question 13

What are the shared characteristics of restrictions of manner and form?

Answer 13

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.

Question 14

What are limitations of substance?

Answer 14

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).

Question 15

How reconcilable are the various limitations (manner, form and substance) with the notion of legislative sovereignty?

Answer 15

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.

Question 16

How did Heuston formulate the idea of self-embracing sovereignty?

Answer 16

1. Sovereignty is a legal concept – the rules of which identify the sovereign and prescribe its composition and functions are logically prior to it
2. 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.
3. 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)
4. 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.

Question 17

In practice, how does the self-embracing theory of sovereignty allow Parliament to limit its own legislative power?

Answer 17

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.

Question 18

What case is used in support of the notion that Parliament can be subject to manner and form requirements?

Answer 18

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.