Parliamentary Sovereignty Flashcards
What did Sir Ivor Jennings say about Parliamentary Sovereignty (1959)?
He spoke about Parliament ‘banning smoking in the streets of Paris’ - He was recognising that Parliament could pass any law that it wished irrespective of how absurd it was or how unlikely it was to be obeyed in practice.
UK courts do not have the power to strike down or invalidate an Act of Parliament - What case establishes this?
The case of Dalkeith Railway Co. v. Wauchope (1842) is often cited as an example of the courts rejecting the possibility of judicial review or invalidation of legislation. In this case, the House of Lords held that the court could not question the validity of an Act of Parliament or declare it unlawful.
Historical Development of Parliamentary Sovereignty
During the English Civil War (1642-46), debates emerged regarding the extent of royal power versus the authority of Parliament.
Chief Justice Coke’s statement in The Case of Proclamations (1611) affirmed that the King’s prerogative is limited by the law of the land, emphasizing the role of legal constraints on royal authority.
This period marked a crucial shift in recognizing Parliament as the primary legislative body and establishing the principle of parliamentary sovereignty.
Role of the King in Legislation
The King’s prerogative power could not override legislation enacted by Parliament alone, as stated in The Case of Proclamations.
However, the King still played a vital role in the legislative process by giving assent to laws passed by Parliament.
Traditional Understanding of Parliamentary Sovereignty
Legally unlimited legislative power of UK Parliament.
Evolved through history, with Parliament gaining power over the Crown.
Not a rule created by judicial decisions, but a fundamental legal and constitutional principle.
Two examples of how parliamentary sovereignty is recognised in case law
(1) British Railways Board v Pickin [1974]
(2) R. (Jackson) v Attorney General [2005]
British Railways Board v Pickin [1974]
- In this case, the issue at hand was the compulsory acquisition of land by British Railways under an Act of Parliament.
- The claimant argued that the Act was invalid because it violated their rights under the European Convention on Human Rights.
- However, the court held that it had no power to question the validity of an Act of Parliament. The case reinforced the principle of parliamentary sovereignty, emphasising that the courts do not have the authority to invalidate legislation.
R. (Jackson) v Attorney General [2005]
- The House of Lords considered the validity of the Parliament Act 1949 process used to pass the Hunting Act 2004, which banned hunting with dogs.
- The appellant argued that the 1949 Act process was invalid because it did not have the approval of the House of Lords.
- However, the House of Lords held that they did not have the authority to question or invalidate an Act of Parliament on constitutional grounds, reaffirming the principle of parliamentary sovereignty.
Can Parliament limit future Parliaments with its unlimited power?
According to Dicey, parliamentary sovereignty cannot limit future sovereignty.
Dicey’s view asserts that the unlimited power of Parliament does not extend to binding future Parliaments.
This interpretation reflects the traditional understanding of parliamentary sovereignty.
Uncertainty regarding the scope of parliamentary sovereignty
There is ongoing debate about the limitations of parliamentary sovereignty.
Scholars and legal experts differ in their perspectives on whether parliamentary sovereignty can impose restrictions on future Parliaments.
This uncertainty highlights the complex nature of parliamentary sovereignty and its relationship to the authority of future legislative bodies.
Democratic Justification of Parliamentary Sovereignty
Based on the principle of popular sovereignty (power of the people).
Ensures that political power resides with the people.
Allows elected representatives in Parliament to make decisions that reflect the will of the majority and uphold democratic principles.
Human Rights Act 1998 - Interpretive Duty
Section 3(1) of the Human Rights Act imposes an interpretive duty.
Primary and subordinate legislation should be read and applied in a way that aligns with the rights protected by the European Convention on Human Rights.
Courts have a responsibility to interpret laws in a manner that upholds human rights, to the extent possible.
Human Rights Act 1998 - Declarations of Incompatibility
Section 4(6)(a) of the Human Rights Act allows courts to issue declarations of incompatibility.
A declaration of incompatibility signifies that a specific provision is incompatible with Convention rights.
However, the declaration does not invalidate or impact the validity, operation, or enforcement of the provision in question.
Human Rights Act 1998 and Parliamentary Sovereignty
- The HRA preserves parliamentary sovereignty but allows for review of legislation’s human rights compatibility.
- Courts can review the substantive content of an Act of Parliament, such as in the Nicklinson case on assisted dying.
- The Nicklinson (2014) case involved a legal challenge seeking the recognition of the right to assisted dying under human rights law.
Lord Neuberger on Judicial Decision-Making
In his F.A. Mann Lecture, Lord Neuberger highlighted the threefold impact of the Human Rights Act 1998.
Judges are increasingly involved in deciding moral and political issues due to human rights cases.
They are also responsible for interpreting legislation in line with human rights and notifying Parliament when legislation cannot be made compatible with human rights, except for prisoners’ voting rights.
