Chapter 6: Parliamentary Sovereignty

Question 1

What is parliamentary sovereignty?

Answer 1

Concept that Acts of the UK Parliament are the highest form of law and prevents the judiciary adjudicating on the validity of primary legislation

Question 2

What is the term and the outcome when the judiciary adjudicates on the validity of primary legislation?

Answer 2

If courts refuse to look behind the text of a statute to consider allegations of procedural impropriety during the legislative process are sometimes referred to as the ‘enrolled Bill rule’

But If the proper parliamentary procedure has been followed, courts cannot question the validity of that Act of Parliament

Question 3

What are the 3 cases that show courts must obey and can’t question the validity of the act of parliament

Answer 3

1. Pickin v British Railways Board [1974]
2. Edinburgh & Dalkeith Railways v Wauchope [1842]
3. Jackson v Her Majesty’s Attorney General [2005] UKHL 56

Question 4

What is the quote that A.V Dicey used to describe parliamentary sovereignty/legislative supremacy

Answer 4

Parliament has the “right to make or unmake any law whatever.”

Meaning there is no limits to the subject matter which Parliament can legislate/make law on

Question 5

What are the constitutionalist views on whether PS shoudl remain the dominanat principal in the British Constitution?

Answer 5

Political constitutionalists

• believe that parliamentary supremacy is, and should continue to be, the centrepiece of the British constitution, it enables elected representatives to have the final say over the laws for citizens

Legal constitutionalists

• Disagree seeing parliamentary supremacy as a dangerous arrangement that puts our liberties at risk, in that it places no legal constraints on the politicians’ ability to make law

Question 6

How does PS apply to Parliaments in the UK?

Answer 6

PS applies only to the UK (England) Parliament, not to the other legislatures in the United Kingdom. (meaning only Westminster Parliament is the highest)
The Scottish Parliament, Northern Ireland Assembly, and National Assembly for Wales are each created by an Act of the UK Parliament.

Thus, Acts of the Scottish Parliament and of the Northern Ireland Assembly, and Measures of the National Assembly for Wales, may be held to be invalid by the courts (e.g. UKSC)

Question 7

Can courts quash delegated legisation? What is the case that supports this?

Answer 7

No. PS prevents courts from quashing delegated legislation.

R v Secretary of State for Home Department Ex Parte Simms and O’Brien [1999] UKHL 33

• Held - HOL held that the Prison Rules (delegated legislation) made under the Prison Act 1952 which gave the power to prison governors to refuse permission to prisoners to have oral interviews with journalists (as part of a campaign to show that there had been a miscarriage of justice) were ultra vires the Act

Question 8

What did the HOC European Scruitiny Committee state regarding PS in its Tenth Report?

Answer 8

Rather than the term Parliamentary sovereignty the better and more apt term is ‘legislative supremacy of Parliament’ whereby the power of the Queen-in-Parliament to legislate is subject to no legal limitations, and the courts have no power to review the validity of Acts of Parliament.

This doctrine is always considered to be subject to the limitation that Parliament is unable to bind its successors.

Question 9

What are the 2 powers/abilities of PS?

Answer 9

1. Legislation of parliament has no limit on subject matter
2. Parliament can’t be bound by its predecessors or successors

Question 10

What are the 5 points/examples that legislation of parliament has no limit on subject matter

Answer 10

1. Parliament can legislate to alter the succession to the throne
2. Parliament is free to legislate retrospectively
3. Parliament may legislate with extra territorial effect contrary to the general principles of international law
4. Treaties can only take effect under the authority of an Act of Parliament
5. Fundamental rights cannot be overridden by general or ambiguous words of an Act

Question 11

What are the 3 Acts that support how Parliament can legislate to alter the succession to the throne

Answer 11

• Declaration of Abdication Act 1936
• Parliament Acts of 1911 and 1949 - Resulted in a shift of power between the two Houses
• Succession to the Crown Act 2013 - most recent Act that changed the primogeniture rules

Question 12

What are the 2 Acts that support the fact that Parliament is free to legislate retrospectively

Answer 12

• War Damages Act 1961
• War Crimes Act 1991

Question 13

What are the 3 Acts that support the fact that Parliament may legislate with extra territorial effect contrary to the general principles of international law

Answer 13

• Territorial and Extraterritorial Extent of Criminal Law 1978
• Continental Shelf Act 1964
• Criminal Justice Act 1988

Question 14

What are the 2 cases that support the fact that Treaties can only take effect under the authority of an Act of Parliament. What are the 2 other cases that are to be contrasted with?

Answer 14

• Treacy v DPP
• R v kelly [1988]

Contrast with

• Rees Mogg
• Miller I

Question 15

What case supports the fact that fundamental rights cannot be overridden by general or ambiguous words of an Act

Answer 15

In the absence of express language or necessary implication to the contrary, therefore, the courts presume that even the most general words were intended to be subject to basic human rights

Case

• Pierson v Secretary of State for Home Department Parliament [1988]

Question 16

What is the doctrine that employs the fact that parliament can’t be bound by its predecessors or successors

Answer 16

Doctrine of implied repeal

Question 17

What is meant by the Doctrine of implied repeal? What are the cases that exercised this doctrine?

Answer 17

Where a later statute is inconsistent, but not expressly repeal an earlier one, the court would apply the former as the latest expression of Parliament’s will and deem the latter as impliedly repeal

Case

• Vauxhall Estates v Liverpool Corporation [1932]
• Ellen Street Estates v Minister of Health [1934]

Question 18

What kind of statute does the doctrine of implied repeal not apply to? What is the case that shows this?

Answer 18

The Doctrine of Implied Repeal does not apply to constitutional statutes

Case

• Thoburn v Sunderland CC [2002]

Question 19

What are the 2 limitations of PS?

Answer 19

• Effectiveness of political significance of PS
• Devolution

Question 20

What are the issues on ‘Effectiveness’ of political significance of PS? Who is the academic which explains this?

Answer 20

Sir Ivor Jennings’s example

1. Parliament legislating to ban smoking on streets of Paris, such a statute would be ‘valid’ as it has passed through the proper parliamentary procedure
2. Although it will not be ‘effective’ in that no Parisian would abide by an English law
3. The criterion of ‘effectiveness’ is an important constraint on Parliament’s powers – albeit extra –legal, sovereignty is by the possibility of popular resistance

Question 21

What are the issues on devolution?

Answer 21

• The Scotland Act, Government of Wales Act and Northern Ireland Act 1998 have established a system of self-government
• In varying degrees, for Scotland, Wales and Northern Ireland respectively whereby Westminster remains free to legislate over ‘reserved matters’ with devolved powers no matter the devolved government’s competence (even if the gov doesn’t agree)

Question 22

What are the devolutionary issue with Scotland Act 1988 that shows that Westminster parliament shows PS?

Answer 22

• Section 29 of the Scotland Act 1988 regulates competence of the Scottish Parliament
• Section 29(2)(b) states that provisions are outside its competence if it involves ‘reserved matters’
• Section 28(7) of the Scotland Act makes it clear that it “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”

Question 23

What are the devolutionary issues with Northern Ireland Act 1988 that shows that Westminster parliament shows PS?

Answer 23

1. With the birth of Northern Ireland came along the Northern Ireland Assembly. With the escalation of unrest in the 1960s and the 1970s, power was returned to Westminster
2. The Northern Ireland Act 1998 ensuing re-devolved power to a Northern Ireland Assembly** only for it to be suspended and the power retracted by Westminster**
3. The power of the Assembly was restored in 2019

• Section 1 of the Northern Ireland Act 1998 declares that Northern Ireland “in its entirety remains part of the UK and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purpose.”
• However, Bradley and Ewing assert that political constraints against breach of this guarantee provide a greater safeguard than reliance on litigation to confirm that the 1998 Act had limited the powers of future Parliaments

Question 24

What is the case that shows the devolved powers are inferior to Westminster

Answer 24

AXA General Insurance Ltd. v HM Advocate [2001] UKSC 46 UK

Problem

• UKSC had to decide whether the Scottish Parliament exceeded its legislative competence in enacting the Damages (Asbestos-related Conditions) (Scotland) Act 2009

Facts

1. The insurers firstly argued that the legislation breached their Article 1 Protocol 1 Property Rights contrary to Section 29(2)(d) of the Scotland Act, by rendering their money liable to expropriation by claimants. The Court recognised this as an A1P1 claim and the insurers as victims under Article 34, but nonetheless held that the Act pursued, proportionately, a legitimate aim of addressing what the Scottish Parliament had determined to be a social injustice. The Court was unconvinced by points about retroactivity, as no insurer had demonstrated reliance on Rothmann
2. The second ground of challenge lay in the contention that the legislation was an irrational exercise of legislative authority, and thus unlawful at common law. At first instance, in Axa, it was held that like any statutory body, the Scottish Parliament could be reviewed on common law grounds

Held

1. Lord Hope endorsed his position in Jackson that the ROL was the peremptory principle of UK constitutional law, and not PS. The UKSC also held that it was not the common law judicial review of the Scottish law, which was in issue, but an** issue of the legislative supremacy of Westminster Parliament**
2. However, in the end, the UKSC restrained itself to the issue at hand, agreeing that it was for the elected and accountable Scottish Parliament, rather than for judges, to decide what constituted rational social policy
3. Thus, the scope of judicial intervention was restricted

This case helps us understand that in the end, PS still reigns supreme in the the law, not ROL (judiciary)

Question 25

What is the bill that showed devolutionary issues with reserved matters?

Answer 25

Scottish Independence Referendum Bill

1. The Scottish Government drafted a Bill to hold a 2nd referendum on independence. The legislative powers of the Scottish Parliament are limited by the Scotland Act 1998
2. While it can legislate on devolved matters, It can’t pass bills relating to ‘reserved’ matters to the UK Parliament
3. Held - UKSC held it was outside the competence of the Scottish Parliament

Question 26

What is the Bill that showed devolutionary issues with devolved matters?

Answer 26

Gender Recognition (Scotland) Bill (GR (S) Bill)

1. The bill sought to streamline the process by which transgender individuals in the UK can legally apply to change the gender listed on their birth certificate, completing the final stage of the Scottish legislative process in December 2022
2. However, in early 2023, Alister Jack, the Secretary of State for Scotland, said he was planning to make an order under Section 35 of the Scotland Act 1998
3. Section 35 order would make the GR (S) Bill cannot proceed in its current form and would need to be amended and presented for reconsideration in the Scottish Parliament if it is to continue
4. This is the first time that the power under Section 35 has been used in almost 25 years of devolution

Question 27

What is the devolutionary issue with regards to the Sewel convention?

Answer 27

• Applies when the Westminster Parliament wants to legislate on a matter within the devolved competence of the Scottish Parliament, National Assembly for Wales that if the Westminster Parliament legislates over Northern Ireland Assembly
• Under the terms of the convention, the UK Parliament will ‘not normally’ do so without the relevant devolved institution having passed a legislative consent motion
• However not binding on the Westminster Parliament

Question 28

What is the case that showed the Sewel Convention was not binding/legally enforceable?

Answer 28

R (Miller) v Secretary of State for Exiting the European Union [2017] Supreme Court

Question 29

What is the connection between HRA 1998 and PS?

Answer 29

The manner which ECHR was incorporated into HRA was designed in a way to preserve Westminster’s sovereignty

Question 30

What was said by Lord Hoffman on the application of HRA with PS in R v Secretary of State for the Home Department, Ex Parte Simms and O’Brien [1999] UKHL 33

Answer 30

Lord Hoffmann stated

• Parliamentary sovereignty means that Parliament can choose to legislate contrary to fundamental principles of human rights. That the HRA will not detract from this power
• Constraints upon its exercise by Parliament are ultimately political, not legal

Question 31

What are the 4 important sections in the HRA 1998 regarding legislation? What do each of them state?

Answer 31

Section 3 of HRA

• To create legislation that adheres/interprets, as far as possible, to conform with human rights
• If legislation is done without clear and specific words, the shadow of HRA still remains

Section 4 of HRA

• HRA enables the higher courts to only issue a “declaration of incompatibility” when it is impossible to construe primary legislation in such ways as to be harmonious with the Convention rights

Section 10 of HRA

• Then the relevant minister may then amend the offending legislation by means of ‘fast tracking’ parliamentary procedure to bring it in line with Convention rights

Section 19 of HRA

• Requires that a minister in charge of a Bill in either House, before second reading, make a statement to the effect that either the Bill does comply with Convention rights
• Or that, although such a statement could not be made, the government; nevertheless, wishes to proceed with the Bill

section 3 & 4 most important

Question 32

What are the 3 cases where HRA was able to ‘win over’ PS in construing ouster clauses

Answer 32

• R v A [2001] UKHL 25
• Ghaidan v Godin-Mendoza [2004] UKHL 30
• **(FC) v Secretary of State of Home Department [2004] **

Question 33

R v A [2001] UKHL 25

Answer 33

Lord Steyn -

“It is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principles of Parliamentary sovereignty. In case of incompatibility, which cannot be avoided by interpretation under Section 3(1), the courts may not disapply legislation. The Courts may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action.”

Issue

1. Concerned the interpretation of Section 41 of the Youth Justice and Criminal Evidence Act 1999 which prohibited previous sexual history of the complainant in a case involving a sexual offence from being elicited in evidence by a D in light of Article 6 HRA 1998 wherein the courts, as public body under section 6 HRA had to ensure the right to a fair trial
2. In interpreting Section 3 Lord Steyn went beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative process
3. Parliament placed on a court a duty to strive to find a possible interpretation compatible with Convention rights

Takeaway

1. It was much more radical than the ordinary method of interpretation which permitted (allowed) a departure from language of the Act to avoid absurdity
2. Interpreting section 4 HRA (DOI) was a measure of last resort, as such majority allowed the evidence of previous sexual history contrary to the clear meaning of section 41 to make it complaint/relevant with Article 6 HRA 1998
3. Thus the courts could read in words to change the meaning of legislation to make it comply with convention

Question 34

Ghaidan v Godin-Mendoza [2004] UKHL 30

Answer 34

Context

1. Originally, the 1977 Act stated that where a tenancy was in the name of one party to a marriage (it was usually in that of the husband), the other could not be evicted
2. That was later extended to cover unmarried men and women (in situations which the survivor had lived the tenant ‘as his or her wife or husband’)

Issue

1. Question was whether that protection also covered gay couples if the phrase was interpreted so as to be compatible with Convention rights under section 3 HRA 1998

Held (unanimously)

1. HOL held that it would be contrary to Article 14 taken together with Article 8 to deny Mr Godin-Mendoza the right to succeed to a statutory tenancy
2. Majority held that it was possible to read it in way that it was compatible, and that the gay partner was granted the right to statutory tenancy

Question 35

(FC) v Secretary of State of Home Department [2004]

Answer 35

Facts

1. Appellants challenged the lawfulness of their indefinite detention under the Anti-Terrorism, Crime and Security Act 2001,which enabled the internment without trial of foreign nationals whom the Home Secretary suspected were terrorists
2. There were no similar powers over British citizens. The Government had derogated from (opted out of) its obligations under Article 5, as provided for by the Convention where there is “a public emergency threatening the life of the nation.” No other European country had done this in the wake of ‘9/11’

Held

1. Seven Law Lords ruled that indefinite detention without trial was unlawful because it was a disproportionate interference with liberty (Article 5) and equality (Article 14)

Question 36

What are the 8 constituional statutes that are not suject to repeal? Who are the academics that agreed to this?

Answer 36

Lord Neuberger and Lord Mance (with 5 other judges agreed) that “constitution instruments” included

1. Magna Carta 1215
2. Petition of Right 1628
3. Bill of Rights 1689
4. Act of Settlement 1701
5. Acts of Union 1701
6. European Communities Act 1972
7. Human Rights Act 1998
8. Constitutional Reform Act 2005

Question 37

What is the distinction between “ordinary statutes” and “constitutional statutes”? What was the case that distinguished this?

Answer 37

In ** Thoburn v Sunderland CC**, constitutional statutes are

• Condition the legal relationship between citizen and state in some general, overarching manner, or
• Enlarges of diminishes the scope of fundamental constitutional rights

Question 38

What was the first act that was accorded the special status of “constitutional statute”?

Answer 38

European Communities Act 1972

Question 39

What was the case that used the HRA 1998 on grounds that it can’t be subjected to reapeal

Answer 39

With the HRA, Lord Hoffman stated in R v Secretary of State for Home Department Ex Parte Pierson

“in the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

Question 40

What are the 2 cases that suport that constitutional statutes are not subject to reapeal?

Answer 40

R (HS2 Action Alliance Ltd.) v Secretary of State for Transport [2014] UKSC 3

Thoburn v Sunderland City Council [2002]

Question 41

R (HS2 Action Alliance Ltd.) v Secretary of State for Transport [2014] UKSC 3

Answer 41

Lord Neuberger and Lord Mance rebranded the concept of constitutional statute as “constitutional instruments”

Facts

• Action groups challenged the parliamentary bill procedure that was being used for facilitation of the project, on grounds that it contravened requirements of the Environmental Impact Assessment Directive in EU law

Held

• UKSC held that there was no contravention

Question 42

Thoburn v Sunderland City Council [2002]

Answer 42

In the obiter of Lord Reed

1. Confirmed that the impact of EU membership on sovereignty was a matter of constitutional law
2. Which would be** resolved by the UK courts** as Laws LJ had observed in the Thoburn

Question 43

What are the acadmic veiws on constitutional statutes?

Answer 43

According to Colin Munro (Emeritus Professor of Constitutional Law, University of Edinburgh)

• There’s now a special category of harder-to-amend constitutional legislation. Yet such legislation is not hard to amend, given that all that is needed is express words of repeal

According to M Elliott and R Thomas, “Public Law” (2nd ed.) (p. 42)

• “Therefore, it remains the case that the UK lacksany meaningful hierarchy of statutory law that enables fundamental constitutional arrangements to be given a degree of legal permanence.”

Question 44

What is the role of the Judiciary in the doctrine of PS (common law)?

Answer 44

The courts are allowed to, where parliament legislates contrary or disregards the role of judges in upholding the ROL; judges are allowed to construe ouster clauses to declare that the legislation is not upholding the fundamental principles of the constitution, ROL. (the ‘twin pillars’ of the BC)

Question 45

What was the important statement given by Lord Woolf in 1995?

Answer 45

Lord Woolf in 1995 argued

• “if Parliament did the unthinkable” and legislated without regard for the role of the judiciary in upholding the rule of law, the courts might wish to make it clear that “ultimately there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold.”

Question 46

What was stated by Lord Carnwarth in regards to the case held by Lady Hale in R (on the application of Cart) v Upper Tribunal (Secretary of State and Ors. [2011]

Answer 46

Lord Carnwarth

• stated that the question in any case is ‘the level of scrutiny required by the rule of law’, set on a basis which as stated by Lady Hale in R (on the application of Cart) v Upper Tribunal (Secretary of State and Ors. [2011]
• It is both ‘principled and proportionate’ or Lord Dyson that “what scope of judicial review… is required to maintain the rule of law; it being a matter for the courts to determine what that scrutiny should be.”

Question 47

What are the 6 cases that support the Judiciary’s role to the doctrine of PS?

Answer 47

1. R v Secretary of State for Home Department Ex Parte Simms and O’Brien [1999]
2. R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262
3. R (Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22
4. Anisminic v Foreign Compensation Commission [1969]
5. R v Secretary of State for the Environment Ex Parte Ostler [1976]

Question 48

Who stated the matter on the role of judges and PS in R v Secretary of State for Home Department Ex Parte Simms and O’Brien [1999]?

For human rights

Answer 48

Lord Hoffman stated

• If parliament chooses to legislate contrary to fundamental principle of human rights, the HRA will not detract/be overturned by the Act
• Statutes are only containing upon its exercises that are political, not legal
• However the principle of legality means that fundamental rights cannot be overridden by general or ambiguous words
• Where there is absence of express language or necessary implication to the contrary, the courts must presume that even the most general words were intended to be subject to basic rights

Question 49

What was stated by Lord Steyn and Lord Hope in R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262

For judicial review

Answer 49

In the obiter by Lord Steyn and Lord Hope

• Indicate that PS has its limits, especially if it encroaches/interferes with ROL
• Since the ‘twin pillars’ that are ROL and PS of the British Constitution (According to A.V Dicey)
• Since sovereignty of parliament is a common law concept, the House of Lords envisaged a situation that such a concept can be qualified if unnecessary inroads are made by Parliament violating the rule of law and the right to judicial review

Lord Steyn also stated that the judiciary might have to ‘qualify’ the principle of Parliamentary supremacy

• If/when Westminster seeks to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and the citizens

Question 50

R (Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22

Answer 50

Issue

• Supreme Court considered whether the supervisory jurisdiction of the High Court was ‘ousted’ by Section 67(8) of the Regulation of Investigatory Powers Act 2000 (“RIPA”)

Held

• Majority of 4:3, UKSC ruled that RIPA did not oust the supervisory jurisdiction for errors of law

Question 51

What did Lord Carnwarth state in Anisminic v Foreign Compensation Commission [1969] with regards to the determination being vitiated by error of law?

Answer 51

Lord Carnwarth stated

1. That the drafter of the legislation could have been in no doubt that a determination vitiated (weakened) by an error of law was no determination at all
2. Determination was to be read as a reference only to a legally valid determination. Any attempt to exclude judicial review had to be expressed in the ‘most clear and explicit words’
3. He also held that it was ultimately for the courts and not Parliament to determine the limits to the power to exclude review
4. That principle ‘is a natural application of the constitutional principle of the rule of law’