Parliamentary Sovereignty Flashcards
What is parliamentary sovereignty?
Parliament is the supreme law-making body.
* No Parliament may be bound by a predecessor or may bind a successor.
* No person or body may question the validity of an enactment of Parliament.
No substantive restrictions on Parliament
Parliament can also legislate, if it wishes, contrary to fundamental rights (though note the effect of the HRA since 2000). In your separate materials on the rule of law, we saw this point made by Lord Hoffmann in 2000 in the ex parte Simms case when he set out his so-called ‘legality principle’.
There can be consequences of course if Parliament takes such action but it can do so, if there is a majority to pass such legislation.
Parliament can also legislate contrary to international law – there are instances, such as in the cases of Mortensen v Peters and Cheney v Conn where the UK courts have clearly enforced the UK statute rather than international law.
Additionally, Parliament can pass legislation that has retrospective effect, even though this is not seen as desirable in rule of law terms. Examples include the War Damages Act 1965 and the War Crimes Act 1991.
Repeal
Express repeal occurs when legislation is passed that expressly states an intention that an earlier Act should be replaced. For example, the Interception of communications Act 1985 was expressly
repealed and replaced by the Regulation of Investigatory Powers Act 2000.
Express repeal often happens when there is a drive to consolidate and simplify legislation. For example, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995 were all expressly repealed and replaced by the Equality Act 2010.
Implied repeal operates on a more subtle level and is a key feature of the second element of Dicey’s theory on sovereignty.
This comes about (in the absence of express repeal) if a new Act is partially or wholly inconsistent with a previous Act. If so, the previous Act is repealed to the extent of the inconsistency. This is known as implied repeal because Parliament is deemed to have implicitly intended the later Act to repeal the earlier one in this situation. This implicit intention arises from a presumption that Parliament would not intend two incompatible statutes to be given effect at the same time - it would intend to give effect to the later statute, as this is the most recent expression of its will.
The courts will only draw the implication that Parliament intended to repeal an earlier statute where two statutes are irreconcilable.
Effect of implied repeal
The significance of implied repeal for parliamentary sovereignty is that Parliament cannot bind its
successors so as to prevent a statute from being impliedly repealed by a later one which is incompatible with it.
Implied repeal is a reflection of the traditional view that sovereignty takes a ‘continuing’ form, and that each new Parliament (with a fresh mandate) should have equal freedom of manoeuvre in
creating new legislation.
The theory was borne out in the cases of Vauxhall Estates v Liverpool Corporation [1932] 1 KB 133 and Ellen St Estates v Minister of Health [1934] 1 KB 590, which both involved compensation for
landowners whose property had been compulsorily purchased under legislation passed after the First World War.
In both cases, the defendants were told that their compensation was to be assessed according to the terms of the Housing Act 1925. They argued, however, that the assessment should be calculated according to the (more generous terms) of the Acquisition of Land Act 1919. The 1919
Act had expressly stipulated that its provisions were to prevail over any other statutes (thereby trying to prevent future implied repeal). The courts denied that the 1919 Act was intended to have that effect but, significantly, they added that, even if this had been the intention, the 1919 Act still could not have prevented the 1925 Act
from impliedly repealing it, as Parliament is not able to bind its successors. The terms of the later 1925 Act were therefore applied.
Note a more modern and very significant proviso to this part of the theory, as set out by Laws LJ in the case of Thoburn v Sunderland City Council [2002] EWHC 195 (Admin).
Enrolled Bill rule
This ‘rule’, applied historically by the courts, effectively means that if a bill has been enrolled - ie it has become an Act of Parliament - it is impossible to go behind that. Any departure from normal
procedure during the passage of the bill cannot be corrected by the courts.
This approach was evident in two significant cases: Edinburgh and Dalkeith Railway v Wauchope (1842) 8 ER 279 (HL) and Pickin v British Railways Board [1974] AC 765. In the latter case, Lord Morris said:
When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the Statute Book at all.
Procedural limitations
One of the issues that has arisen has been whether it is possible for Parliament to introduce procedural requirements to make it harder for subsequent parliaments to change the law, for instance by requiring prior popular approval for repeal in a referendum.
This idea is what is known as entrenchment by ‘manner and form’. The orthodox Diceyan view is that, while a parliament could pass a statute that required a special
procedure for its amendment or repeal, this requirement would not be binding on a successor parliament.
Additionally, the courts would not consider a challenge to the subsequent incompatible statute because of the ‘enrolled bill rule’ laid down in Pickin v British Railways Board [1974] UKHL 1.
Reflections on ECA and sovereignty
Following the departure of the UK from the EU, it is clear that the impact on parliamentary sovereignty was a significant but temporary one.
The fact that the courts enforced principles of EU law over domestic statutes – illustrated most notably in Factortame – shows that it is possible for one parliament (in 1972) to have bound future parliaments in a substantive way.
However, the binding effect only lasted for as long as Parliament – as a continuing institution – wished to be bound by it. And the parliament elected in December 2019 did not…
Ultimately, therefore, Parliament can impose limitations upon itself, but the principle remains, because it cannot prevent future parliaments removing those restrictions (assuming, of course,
that it is still politically possible to do so).
- 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.
- Following the UK’s accession to the EEC, the UK courts initially took a purposive approach to the application of Community law.
- 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 European Court of Justice.
’Principle of legality’
When looking at the rule of law, the modern judiciary has sought to protect rights and freedoms through the way in which it carries out its role in interpreting legislation.
Key case: R v SoS Home Department ex parte Simms [2000] 2 AC 115
In this case, Lord Hoffmann made the significant observation, which he referred to as the principle of legality, that:
Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. 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.
Exclusion of court jurisdiction
One of the most notable ways in which the courts have modified the application of legislation in order to protect rights has occurred in issues relating to the courts’ own rights to determine judicial review challenges.
As will be seen in more detail in other materials, there have been legislative attempts to ‘oust’ the courts’ rights to scrutinise governmental actions and decisions through judicial review.
‘Ouster clauses’ are sometimes included in legislation in order to try to prevent decisions made using the relevant statutory powers being reviewed in court.
The courts’ attitude towards these has been universally hostile and has been evident since the late 1960s since the leading case of Anisminic.
Key case: Anisminic v Foreign Compensation Commission [1969] 2 AC 137
In the context of this case, s 4(4) of the Foreign Compensation Act 1950 provided that: The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.
Anisminic Ltd. wished to challenge a decision of the FCC on the basis that it had misconstrued the legal effect of the statutory framework under which it operated. The law lords held that the
ouster clause did not prevent it from challenging the FCC’s decision. Lord Reid stated that:
It is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of
the court.
Ouster clauses – and sovereignty
The subsequent history of governmental attempts to include ouster clauses in legislation has been a generally fractious one. The courts see ouster clauses as an affront to its constitutional purpose of holding the Executive to account, and, as in Anisminic, they have tended to use highly purposive forms of statutory
interpretation to bypass the apparent intention of Parliament in the original legislation. This approach is illustrated in cases such as R v Home Secretary, ex parte Al Fayed [1997] 1 All ER 228 and, more recently, in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC
22. Extra-judicial disapproval of the tactical device of ouster clauses also tends to be vociferous, notably during debate over the Asylum and Immigration (Treatment of Claimants) Bill in 2003-4.
Legality principle expanded
The legality principle was not established in the Simms case, even though it is usually associated with it, given the significant influence of Lord Hoffmann’s speech.
It can be traced to a series of cases in the 90s, starting with R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994] QB 198 which concerned prison rules permitting the interception of legal correspondence between a prisoner and his lawyers. The Court of Appeal held that these interfered with a constitutional right to the free flow of communications between a solicitor and a client about contemplated legal proceedings.
And it also made clear that this interference could only be authorised by express words in the statute or by necessary implication.
Witham
This approach was also used in R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779 to challenge the scale of court fees set by the Lord Chancellor under the authority of a statutory instrument. Witham wished to sue for defamation but could not afford the court issue fee of £500, as he was
unemployed. (His request for a waiver of the fee was dismissed.) He sought judicial review of the Lord Chancellor’s decision in setting the court fees. He argued
that his right of access to the court was being denied by the scale of fees and the court’s refusal to waive them. It was held that the Act did not authorise the Lord Chancellor to set fees at such a level that
access to the courts, a fundamental right, was denied. The statutory instrument was declared to be ultra vires the Act.
