7. CON LAW: SEPARATION OF POWERS Flashcards
PARLIAMENTARY SOVEREIGNTY
The traditional doctrine of PSov was described by A V Dicey in Introduction to the Study of the Law of the Constitution and encompasses three principles:
- P is the SUPREME LAW-MAKING BODY
- no P may bind a successor or be bound by a predecessor
- no person or body has the power to override legislation passed by P
The doctrine still applies today though it has been substantially modified and limited, particularly by the HRA 1998, EU law, Devolution and the JUD.
There is a distinction to be drawn between P’s theoretical legal power and the limitations on its power in practice.
PSov: P IS SUPREME LAW MAKING BODY - DOCTRINE
P is theoretically the supreme law making body, with the power to legislate
PROSPECTIVELY AND RETROSPECTIVELY
- P can pass retrospective legislation. EG the War Damage Act 1965 overriding the court’s decision in (Burmah Oil v Lord Advocate)
ON ANY MATTER IT CHOOSES
- P can legislate in contravention of human rights provided that it uses express words to do so (R v SoS HD ex p Simms)
BEYOND ITS JURISDICTION
- P can pass legislation which has effect beyond the jurisdiction of the UK
- – P extended British territorial waters beyond recognised international limits (Mortensen v Peters)
- – P legislation is superior to international treaty obligations (Cheney v Conn), though, NB European Communities Act 1972.
PSov: P IS SUPREME LAW MAKING BODY - CHALLENGES
POLITICAL REALITY
- there are really political limits as to what legislation P may pass or repeal.
EU LAW
- directly effective in the UK (s.2(1) ECA 1972), P must give effect to legislation originating from outside the UK.
- BREXIT, for time being EU law remains vital in many areas. And will most likely continue to be as such for a considerable time.
DEVOLUTION
- Despite that under s.28(7) Scotland Act 1998 P retains powers to “make laws for Scotland”, Scotland has been given the power to legislate on a range of matters, such as education, training, health, environment, tourism, sport, heritage, justice and law.
- Westminster P retains right to legislate on foreign affairs, defence, immigration, welfare and energy.
- In theory, the power of P has not been reduced, though in practice, it would be almost impossible to regain the power that have been delegated to the Scottish PArliament. Further devolution occurred via the Scotland Act 2016.
PSov: NO P MAY BIND A SUCCESSOR/BE BOUND BY A PREDECESSOR - DOCTRINE
P is exceptional as the supreme law making body and cannot bind itself (cf. AG for New South Wales v Trethowan); Harris v Minister of the Interior), being free to repeal legislation through either
- EXPRESS REPEAL, or
- – where new legislation EXPRESSLY states that it is repealing previous legislation
- IMPLIED REPEAL
- – new legislation will AUTO impliedly repeal any conflicting provisions in previous legislation without any need to refer to them, regardless of whether the previous legislation states that it cannot be repealed (Vauxhall Estates v Liverpool Corp; Ellen Street Estates v Minister of Health)
PSov: NO P MAY BIND A SUCCESSOR/BE BOUND BY A PREDECESSOR - CHALLENGES
The principle of implied repeal has been challenged by the notion of PARTIAL ENTRENCHMENT and CONSTITUTIONAL STATUTES
Certain statutes have arguably acquired a ‘constitutional’ status and CANNOT be impliedly repealed (Thoburn v Sunderland CC per Laws LJ)
- Magna Carta 1215
- Bill of Rights 1689
- HRA 1998
- Scotland Act 1998
No act of P can extend to a Dominion (former colony) without the request and consent of that dominion (s.4 Statute of Westminster 1931)
- P has the RIGHT to repeal this statute (Manuel v AG per Megarry VC), though IN PRACTICE it would be almost impossible (Blackburn v AG per Lord Denning)
Judicial Comments
- There is apparently no reason why P should not be able to redefine itself both “upwards” and “downwards” (i.e. be able to bind future Ps) (R(Jackson) v AG per Baroness Hale)
PSov: NO PERSON/BODY HAS THE POWER TO OVERRIDE LEGISLATION PASSED BY P - DOCTRINE
Traditionally, no person or body may review or override an ACT passed by P with respect to either:
THE PROCEDURE IN WHICH AN ACT IS PASSED
- under the ‘enrolled bill rule’, the manner in which P passes its legislation cannot be reviewed as the court assumes that an act which has been passed was passed using the correct procedure (Pickin v British Railways Board)
- the rule even applies where P breaches its own rules in passing the legislation (Edinburgh v Wauchope)
THE SUBSTANCE OF THE ACT
- no court can ever review or alter the substance of an Act of P (ex p Canon Selwyn) and an Act of Parliament is superior to international laws and treaties (Cheney v Conn)
PSov: NO PERSON/BODY HAS THE POWER TO OVERRIDE LEGISLATION PASSED BY P - CHALLENGES
EUROPEAN COMMUNITIES ACT 1972
- any act of P must be “construed and have effect subject “ to directly applicable Community law (s.2(4)), thus, the meaning of a statute may be DISTORTED in favour of a Community meaning.
- PURPOSIVE INTERPRETATION
- – Previous Legislation: to give effect to s.2(4) ECA 1972, the courts have been prepared to take a purposive interpretative approach to bring previous UK legislation in line with Community law (Macarthy’s v Smith), which can involve departure from the prima facie meaning of UK legislation (Garland v British Rail Engineering)
- – New legislation: the courts have been prepared to DISTORT the meaning of UK legislation passed to give effect to EU legislation (Pickstone v Freeman)
- In conflicts between UK and EU law, UK legislation can be disapplied to both EU (Factortame) and UK nationals (ex p Equal Opportunities Commission)
- However, if, and to the extent the UK leaves the EU, EU law may well still apply.
HRA 1998
- While the HRA does not reduce P sovereignty in any formal sense, it has acted to reduce P’s power PRACTICALLY by permitting courts to:
- – make s.4 declarations of incompatibility, which, though not legally binding (s.4(6) HRA 1998), usually result in P amending a statute accordingly.
- – interpret UK legislation “as far as possible” to bring it into line with EU law. In certain instances, this interpretative power has been taken so far as to effectively re-write legislation (R v A)
The JUD
OBITER COMMENTS in (R(Jackson) v AG)
- the courts seem to be increasingly prepared to challenge PSov, at least in its absolute form. Judges made the following OBITER comments:
— “the courts may have to qualify a principle established on a different hypothesis of constitutionalism [other than PSov]” Lord Steyn
— “PSov is no longer, if it ever was, absolute” Lord Hope
- The courts may be prepared to intervene where a statute violates the Rule of Law (AXA v Scottish Minister)
PSov: CONCLUSION
The traditional doctrine of PSov, while intact legally and still the fundamental principle of the UK constitution, has been substantially modified and limited, particularly in PRACTICAL terms.
