6 - Parliamentary Sovereignty

Question 1

What is Parliamentary Sovereignty?

Answer 1

Parliamentary Sovereignty refers to the principle that Parliament has unlimited legislative competence.

Courts have since upheld that Acts of Parliament are the supreme form of law in the UK.

Question 2

What are the three basic rules of the powers of Parliament according to Dicey?

Answer 2

Parliament is the supreme law-making body.
No Parliament may be bound by a predecessor or bind a successor.
No person or body may question the validity of an Act of Parliament.

Dicey’s conception of sovereignty emphasises the absence of legal limitations on Parliament’s legislative power.

Question 3

How is Parliament the supreme law-making body?

Answer 3

Parliament has the right to make any law whatsoever, with no substantive limitations on the legislation it can enact.
This includes the ability to pass laws that may be unjust or impractical.

Question 4

What does ‘no subject limitations’ mean in relation to Parliament?

Answer 4

The principle implies that Parliament can enact legislation regardless of its moral or practical implications.

Parliament has the authority to pass laws that conflict with public international law, as seen in Cheney v Conn [1968], where the court held that a Parliamentary enactment could not be deemed illegal despite its conflict with international treaties.

Question 5

What are the implications of ‘no geographical or temporal limitations’ for Parliament?

Answer 5

Parliament can legislate beyond the UK’s jurisdiction, even if it conflicts with international law.
In Mortensen v Peters (1906), the court upheld UK law despite international law prohibiting fishing in territorial waters.

Additionally, Parliament can enact retrospective laws, as demonstrated by the War Damage Act 1965, which nullified a prior House of Lords decision.

Question 6

What does it mean that no Parliament may be bound by a predecessor or bind a successor?

Answer 6

This principle indicates the absence of constitutional safeguards in the UK, allowing a single Act of Parliament to dramatically change the constitution.

Parliament can repeal or enact new laws without being constrained by previous legislation.

Question 7

What is express repeal in the context of Parliamentary Sovereignty?

Answer 7

Express repeal occurs when a new Act explicitly states it replaces an earlier Act, as seen with the Regulation of Investigatory Powers Act 2000 repealing the Interception of Communications Act 1985.

This often happens when legislation is consolidated, exemplified by the Equality Act 2010 replacing multiple prior Acts regarding discrimination.

Question 8

What is implied repeal and its effect on Parliamentary Sovereignty?

Answer 8

• Implied repeal occurs when two statutes are irreconcilable as a new Act conflicts irreconcilably with a previous Act without an explicit statement of repeal.
• The earlier Act is considered repealed to the extent of the inconsistency, reflecting that Parliament does not bind its successors.
• This principle maintains that new Parliaments should have equal freedom to legislate, as illustrated by the cases Vauxhall Estates v Liverpool Corporation and Ellen St Estates v Minister of Health.

Question 9

What is the significance of the idea that no person or body may question the validity of an Act of Parliament?

Answer 9

No entity has the right to override or invalidate legislation passed by Parliament.

Acts of Parliament are viewed as the highest form of law, meaning neither the process nor the substance of legislation is subject to judicial review.

Question 10

What is the enrolled bill rule?

Answer 10

The enrolled bill rule states that once a bill becomes an Act of Parliament, it cannot be questioned or overturned by the courts, regardless of procedural irregularities - demonstrates the separation of powers.

This rule was evident in cases such as Edinburgh and Dalkeith Railway v Wauchope and Pickin v British Railways Board, where the courts upheld the finality of enacted legislation.

Question 11

Provide a summary of parliamentary sovereignty and its importance as the underlying principle of the UK constitution.

Answer 11

The key components of Dicey’s theory include:
- Parliament as the supreme law-making authority
- The inability of Parliament to bind itself
-The associated concept of implied repeal
- The inability of any other body or person to question an Act of Parliament

Question 12

What is the Diceyan understanding of parliamentary sovereignty and its significance in the UK constitution?

Answer 12

• Parliamentary sovereignty is a primary element in shaping the traditional character of the UK constitution.
  It establishes the supreme authority of statute law.
• The apparent impossibility of entrenchment of constitutional basics means that the UK has a highly flexible constitution.
• This flexibility enhances the political character of the UK constitution, where political drivers of change are more significant than fundamental legal constitutional rules.

Question 13

What are the main legal and political limitations to the sovereignty of Parliament as proposed by Dicey?

Answer 13

Dicey argued that Parliament has unlimited legal powers, with no substantive or procedural limitations on its legislative powers.

However, over time, debates have emerged that challenge this idea. Issues of sovereignty have played a significant role in major political events, including the UK’s separation from the EU.

Question 14

Can Parliament introduce procedural limitations to make it harder for future Parliaments to change laws, and what is this idea called?

Answer 14

The traditional view is that while Parliament can create special procedures for amending laws, these procedures are not binding on future Parliaments.

Question 15

How have Commonwealth cases influenced the debate on whether Parliament can bind itself?

Answer 15

Certain Commonwealth cases have raised questions about Parliament’s ability to bind itself.

In Attorney General for New South Wales v Trethowan (1932), the New South Wales legislature had a law requiring a referendum to abolish its upper chamber.

The Privy Council ruled this requirement was binding, suggesting that some legislatures might be able to create such limitations.

Question 16

What criticisms exist regarding the ‘manner and form’ argument in the context of parliamentary sovereignty?

Answer 16

Critics argue that the New South Wales legislature was created by the UK Parliament and was therefore not sovereign, making its legal position different.

The ‘manner and form’ entrenchment seems applicable mainly to subordinate legislatures.

Nonetheless, the European Union Act 2011 introduced a ‘referendum lock’ that required a referendum for certain changes, raising further questions about procedural limitations.

Question 17

What have courts said about Parliament’s ability to set procedural limitations on its legislative powers?

Answer 17

The debate about procedural limitations continues in court discussions. In Thoburn v Sunderland City Council (2002), it was asserted that Parliament cannot dictate the manner of future legislation.

However, in Jackson v Attorney General (2005), some judges were open to the idea that Parliament could require specific procedures for certain laws.

Question 18

How has parliamentary sovereignty been affected by legal and political changes in the UK?

Answer 18

The traditional view of parliamentary sovereignty has faced challenges due to significant legal and political developments.

Parliament itself has created limitations through constitutional reforms that are only binding as long as future Parliaments choose to maintain them.

Issues like devolution, the European Communities Act 1972, and the Human Rights Act 1998 have influenced this relationship.

Question 19

How does the case Ex parte Simms relate to parliamentary sovereignty and fundamental rights?

Answer 19

In R v SoS Home Department ex parte Simms (2000), Lord Hoffmann acknowledged that Parliament can enact laws that limit fundamental rights, but it must clearly state this intention.

Courts will assume Parliament did not intend to restrict rights unless explicitly stated, as fundamental rights cannot be overridden by vague language.

Question 20

What insights did the court provide about the nature of parliamentary sovereignty in its obiter remarks in Jackson?

Answer 20

The court acknowledged that while parliamentary sovereignty is dominant, it is not absolute.

Lord Hope stated that it is incorrect to say Parliament’s legislative freedom has no limits. Lord Steyn warned that Parliament’s supremacy might be questioned if it attempts to enact “oppressive and wholly undemocratic legislation,” suggesting that courts may need to consider whether certain legislation can be abolished by a sovereign Parliament.

Question 21

What issues arise when Parliament tries to exclude court jurisdiction through ouster clauses?

Answer 21

Tensions exist when Parliament includes ouster clauses in legislation to prevent courts from reviewing government actions. The courts have consistently rejected these clauses since the landmark case Anisminic (1969), viewing them as contrary to the rule of law.

Example: In Anisminic v Foreign Compensation Commission (1969), an ouster clause aimed to prevent court challenges to the commission’s decisions. The House of Lords ruled that the clause did not stop Anisminic from challenging the decision, establishing a precedent against the validity of ouster clauses in restricting judicial review.

Question 22

Provide a summary of how the principle of sovereignty has helped shape the UK constitution.

Answer 22

• The traditional Diceyan theory of parliamentary sovereignty has come under pressure as a result of several significant legal and political developments.
• There has been an ongoing and unconcluded debate over whether “manner and form” entrenchment of legislation is possible in the UK constitution, based on comparison with Commonwealth cases.
• The judiciary recognises the ultimate sovereignty of Parliament but can use its powers of interpretation to err on the side of rights protection in the common law.
• More radically, some in the judiciary have shown they are willing to assess and question whether the traditional theory of parliamentary sovereignty is or should still be dominant.

This has been considered through a close look at the Jackson case.

Question 23

What is legislative supremacy in the context of the EU, and how does it interact with UK law?

Answer 23

Legislative supremacy asserts that Parliament is the supreme legal authority in the UK, capable of creating or repealing any law.

However, EU membership imposed limitations on this supremacy, as EU law could override conflicting UK legislation.

The European Communities Act (ECA) 1972 facilitated this relationship, incorporating EU law into UK law.

Question 24

What role did the ECA 1972 play in the UK’s treaty obligations to the EU?

Answer 24

• The ECA 1972 was enacted to incorporate the UK’s obligations under the Treaty of Rome (1957) into domestic law.
• It established that EU law would have effect in the UK, creating a legal framework for the application of EU treaties.
• Section 2(1) of the ECA allows EU regulations to have direct effect, while Section 2(4) requires national law to be construed in line with EU law.

Question 25

How did the ECA influence CJEU jurisprudence regarding the primacy (supremacy) of EU law?

Answer 25

The ECA established the premise that EU law takes precedence over conflicting national law, as reinforced by the European Court of Justice (ECJ).

The principle of primacy was affirmed in Costa v E.N.E.L., where the ECJ stated that EU law cannot be overridden by domestic law.

This principle was pivotal in maintaining the uniform application of EU law across member states.

Question 26

What was the significance of early case law in establishing the primacy of EU law?

Answer 26

Early cases like Van Gend en Loos established the concept of direct effect, allowing individuals to invoke EU law in national courts.

These rulings laid the groundwork for the acceptance of EU law’s supremacy, challenging traditional notions of parliamentary sovereignty in the UK.

The evolution of these principles set a precedent for future cases involving conflicts between EU and national law.

Question 27

What was the significance of the Factortame case in relation to EU law and UK parliamentary sovereignty?

Answer 27

The Factortame case highlighted the tension between UK law and EU law regarding fishing rights.

The House of Lords ruled that the Merchant Shipping Act 1988 had to be set aside to comply with EU law, affirming the principle of EU law’s primacy.

This case marked a turning point in UK law, illustrating that parliamentary sovereignty could be constrained by EU obligations.

Question 28

How did Factortame (No. 2) further impact the relationship between EU law and UK law?

Answer 28

In Factortame (No. 2), the House of Lords ruled that the UK courts had the authority to grant interim relief against national legislation that contravened EU law.

This ruling reinforced the supremacy of EU law and established that UK courts could not enforce domestic laws conflicting with EU obligations.

It demonstrated a shift in the balance of power, emphasising the constraints placed on parliamentary sovereignty by EU law.

Question 29

What were the developments in UK law following the Factortame ruling?

Answer 29

Following Factortame, UK courts increasingly recognised the primacy of EU law, leading to further cases where EU obligations were upheld over national law.

The decisions reinforced the understanding that Parliament had effectively limited its sovereignty through the ECA 1972.

This era marked a significant shift in the relationship between UK and EU law, with courts prioritising EU law in areas of conflict.

Question 30

What did Laws LJ state in the Thoburn case regarding parliamentary sovereignty and the tension with EU Law?

Answer 30

In Thoburn v Sunderland City Council, Laws LJ distinguished between “ordinary” and “constitutional” statutes, arguing that the ECA 1972 is a constitutional statute. This is now the view of the judicial mainstream.

He asserted that constitutional statutes are not easily repealed by ordinary legislation, thus preserving the fundamental principles of parliamentary sovereignty.

Further, he noted that EU law was able to prevail over incompatible domestic statutes because an exception had been created to the doctrine of implied repeal.

This case highlighted the ongoing tension between maintaining parliamentary authority and adhering to EU law.

Question 31

How has the departure from the EU impacted the understanding of parliamentary sovereignty in the UK?

Answer 31

Post-Brexit, the ECA 1972 has been repealed, restoring full parliamentary sovereignty and allowing the UK to reclaim legislative powers previously constrained by EU law.

While Parliament can now amend or repeal laws without regard to EU obligations, the legacy of the ECA and the primacy of EU law continue to influence discussions on sovereignty.

The transition has reaffirmed that while Parliament is supreme, the conditions under which it exercised its sovereignty during EU membership will continue to shape legal debates.

Question 32

Provide a summary of the constitutional significance and impact on parliamentary sovereignty of the UK’s membership of the European Union.

Answer 32

• The UK constitution is ‘dualist’, meaning that international agreements must be enacted in domestic legislation before they can take effect in domestic law.
• Via the ECA 1972, European Union law was effectively incorporated into domestic law, and was given supremacy. (The ECA 1972 has now been repealed.)
• The key case of Factortame made it clear that EU law could override or ‘disapply’ conflicting UK statutes enacted after 1972.
• Subsequent cases went further by disapplying provisions within statutes that clearly conflicted with EU law, even without a reference to the ECJ.
• The UK’s departure from the EU and the repeal of the ECA 1972 show that, even though UK Parliaments after 1972 were ‘bound’ by their predecessor, ultimately it was still possible for Parliament (as a continuing institution) to remove the limitations that had been applied.

Question 33

What is devolution in relation to parliamentary sovereignty?

Answer 33

Devolution refers to the UK Parliament devolving powers to:
- Scottish Parliament (1998)
- National Assembly for Wales (1998)
- Northern Ireland Assembly (1999)

These bodies can legislate on devolved matters, but core national powers like foreign and fiscal matters remain with Westminster.

Legal sovereignty still resides in Westminster (e.g., s. 28(7) Scotland Act 1998).

Devolution impacts are more political than legal, but it hasn’t legally undermined Westminster’s sovereignty.

Question 34

How does devolution limit Dicey’s view on unlimited parliamentary sovereignty?

Answer 34

Dicey’s theory: Parliament can make or unmake any law.
- While legally devolution doesn’t contradict this, politically it limits practical reversibility.
- The Sewel Convention states Westminster will not normally legislate on devolved matters without consent from the relevant legislature, but this is not a legally enforceable rule.
- The UK Parliament could still legislate on devolved matters, or repeal devolution legislation altogether in legal terms.
- Policies like Brexit have created tensions between the UK government and devolved bodies, especially Scotland, where nationalist sentiment has grown.
- Reversing devolution could lead to a constitutional crisis due to political tensions.

Question 35

What is the impact of the Human Rights Act 1998 (HRA) on parliamentary sovereignty?

Answer 35

The HRA 1998 caused tension with Diceyan theory of parliamentary sovereignty by incorporating the European Convention on Human Rights (ECHR) into UK law.

Like with ‘EU law’, the HRA introduced a body of international law into the domestic legal system through statute, demonstrating how Parliament can limit its own sovereignty.

The HRA provides protections for human rights, but it does not legally prevent Parliament from amending or repealing the Act in the future, meaning sovereignty remains intact in legal terms.

Question 36

What is s. 2 HRA and how does it impact UK courts?

Answer 36

Section 2 HRA requires UK courts and tribunals to “take into account” the jurisprudence of the European Court of Human Rights (ECHR) when determining cases involving Convention rights.

Initially, UK courts followed this strictly, as seen in Lord Bingham’s “mirror principle” in R (Ullah) v Special Adjudicator [2004] UKHL 26.

More recently, UK courts have advocated for a ‘dialogue’ with Strasbourg, allowing some divergence to maintain the autonomy of English law where Strasbourg jurisprudence may not be fully relevant.

Question 37

What is s. 3 HRA and why has it been controversial?

Answer 37

Section 3 HRA requires that primary and subordinate legislation be interpreted in a way compatible with ECHR rights “so far as it is possible to do so.”

This has been controversial because it allows courts to interpret legislation in ways that might override Parliament’s original intent.

A notable example is R v A (Complainant’s Sexual History) [2002] 1 AC 45, where Lord Steyn interpreted the Youth Justice and Criminal Evidence Act 1999 in a way that allowed evidence of the complainant’s sexual history to ensure a fair trial under Article 6 ECHR.

Concerns have arisen over whether this interpretive power undermines Parliament’s legislative authority, but courts have confirmed it is only appropriate where it does not go ‘against the grain’ of the underlying policy.

Question 38

How does s. 3 HRA affect parliamentary sovereignty?

Answer 38

Section 3 HRA affects parliamentary sovereignty by giving the judiciary the power to interpret legislation in ways compatible with ECHR rights, even where it appears to conflict with Parliament’s intent.

This was seen in R v A (C.S.H.), where s. 41 of the Youth Justice and Criminal Evidence Act 1999 was interpreted in light of Article 6 of the ECHR.

Courts have stressed that such interpretations should not ‘go against the grain’ of the legislation, maintaining a balance between rights protection and parliamentary sovereignty.

Question 39

What is the function of s. 4 HRA?

Answer 39

Section 4 HRA allows courts to make a “declaration of incompatibility” when a statutory provision is incompatible with a Convention right.

This declaration does not invalidate the law but flags the incompatibility for the government, leaving it to political decision-makers to address.

While s. 4 gives the judiciary a significant role, it maintains parliamentary sovereignty as the government is not compelled to amend the law.

An example is the Belmarsh case [2004] UKHL 56, where the government re-evaluated its anti-terrorism policy following a declaration of incompatibility.

Question 40

What is the ultimate effect of the HRA on parliamentary sovereignty?

Answer 40

The HRA represents a balance between stronger rights protection and maintaining parliamentary sovereignty.

The Act has a dominant effect as a ‘constitutional statute’ but can be repealed by Parliament, as shown by the possibility of Brexit undoing earlier parliamentary decisions through the ECA.

As long as the HRA remains in place, it limits parliamentary sovereignty to the extent that rights protections must be respected, but this effect is ultimately reversible by Parliament.

Question 41

Provide a summary of the constitutional significance and impact on parliamentary sovereignty of the devolution process and the Human Rights Act.

Answer 41

• While the devolution arrangements do not undermine the ultimate legal sovereignty of the UK Parliament, there is arguably a practical, political limitation on the Westminster Parliament’s authority in this context.
• The Human Rights Act 1998, which incorporated the ECHR into domestic law, requires that domestic legislation must be interpreted, if possible, in a way which gives effect to the ECHR

Section 3 HRA
- If this cannot be achieved, a ‘declaration of incompatibility’ may be made.

Section 4 HRA
- The effect of a declaration of incompatibility is political rather than legal in that it is not the same as an invalidation of an Act of Parliament.