Parliamentary sovereignty

Question 1

Bogdanor’s vision of the constitution

Answer 1

“What the Queen in Parliament enacts is law.”

Question 2

Diceyan orthodoxy limbs

Answer 2

Positive: Parliament possesses unlimited lawmaking power
Negative: no other body has the authority to challenge the validity of an Act of Parliament

Question 3

The positive aspect

Answer 3

This gives rise to the aspect of the constitution that no law has special constitutional rights over others - no statute is supreme over others.
Legal entrenchment is thus an impossibility as Parliament can make and unmake any law… including those made by previous Parliaments.
Jennings supported this.
While this forms the ‘bedrock’ of the UK constitution (as bingham stated in Jackson) the umlimited power is hypothetical. “The more deeply the subject is explored, the more one is inclined to suspect that the bedrock will turn out to be quicksand.” (Wade)

Question 4

The negative aspect

Answer 4

The courts cannot strike down legislation for being unconstitutional. This is found in the Bill of Rights Act 1688.

Question 5

The origins of the sovereignty doctrine

Answer 5

Democracy?
While this may give grounding to the continued relevance of sovereignty, it was not the initial one as voters were limited severely (only 10% of the population could vote at the time.
Monarch v Parliament
The 1688 Glorious Revolution occurred in which parliamentarians overthrew the Catholic Monarch James II of England and replaced him with Protestant Monarchs William and Mary. Prior to this the Monarch had great power in levying taxes, suspending laws, legislating by proclamation etc. The courts also claimed that they could control acts of Parliament (Dr. Bonham’s Case (1609)) thus creating a confused state of affairs. After the overthrow the Bill of Rights 1689 and Act of Settlement 1701 established Parliament as supreme, vesting it in most powers (using the army, free elections to parliament, stating that nothing is above parliament, etc). The legislative supremacy of Parliament was thus established.

Question 6

Distinction between legal and political sovereignty

Answer 6

Dicey recognised that Parl was only hypothetically sovereign as in practice it would never enact such heinous acts as those which it was legally entitled to do.
Politically parl is well restricted - parl is democratically elected so a party will not be elected again if it works against the will of the population.
“It is often said that it would be unconstitutional for the United Kingdom parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper…” (Madzimbamuto v Lardner-Burke [1969]).
It was similarly noted by Baroness Hale in R v Attorney General ex p Jackson [2006] that “the constraints upon what parliament can do are political and diplomatic rather than constitutional.”

Question 7

Political restraints re Scottish Devolution

Answer 7

The Scotland Act 1998 was a statute just like any other so could - in theory - be repealed tomorrow in the Dangerous Dogs Act 2015. Likewise Parliament could unilaterally legislate in a matter devolved to Scotland as under s28(7) they are entitled to do so.
However under political restraints parliament would probably require a referendum to repeal it as it was voted in by 75% of the population in a referendum (as Bogdanor suggests). Also the Sewel convention notes that Parliament will not legislate in devolved matters without Scotland’s consent which forms another political restraint. Thus, “For power devolved… will be power transferred; and it will not be possible to recover that power except under pathological circumstances” – Bogdanor

Question 8

Jennings on legal sovereignty

Answer 8

He was a leading critic of Dicey stating that sovereignty is a legalconcept, showing only how the courts will enact legislation set down by parliament. He thus prefers the term legislative supremacy.

Question 9

Can Parliament bind itself?

Answer 9

The traditional answer is no, but this creates a paradoxical question as technically parliament can do anything. The orthodox response, supported in Dean of Ely v Bliss (1842) is that in the event of a statute clash, the latter will prevail no matter what.
However in order to repeal legislation, express words to that effect must be given (Ellen Street Estates v Minister of Health [1934]). Nonetheless in this case the latter statute was given effect despite the earlier act requiring express words to repeal it.

Question 10

Can a statute be entrenched?

Answer 10

Under orthodoxy - no.
The Union of Ireland Act 1800 sought to bind the churches of England and Ireland ‘forever’ but this was repealed in the Irish Church Act 1869.
Similarly in Ellen Street Estates the earlier act sought to exempt itself from repeal but the courts denied this as “The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation…”

Question 11

Self-embracing sovereignty

Answer 11

Dicey was firmly against this, but Jenning stated that “the legal sovereign may impose legal limitations upon itself, because its power to change the law includes the power to change the law affecting itself.”
This can only be done by express provisions

Question 12

Examples of self embracing sovereignty

Answer 12

• s1 of the Northern Ireland Act 1998: NI “shall not cease to be [a member of the UK] without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section…” This is a restriction on the MANNER.
• A restriction of FORM of legislation is seen in the Canadian Charter of Rights and Freedoms but is not seen in the UK constitution

Question 13

Limits on substance

Answer 13

This is impossible as per the UK constitution.

Question 14

Self embracing sovereignty in practice

Answer 14

Sovereignty is a legal concept but provides a distinction between rules that govern procedure and legislative competence. Thus parliament can restrict and change the composition and procedure of making legislation, but not the area of power. Likewise the courts cannot question parliament on the latter but can on the first two.

Question 15

Trethowan [1932]

Answer 15

This Australian case showed how Parliament can bind future parliaments as to the manner and form of enacting future legislation - it required a referendum to remove the Legislative Council and when parliament tried to remove the legislative council without a referendum, the courts struck it down.

There is reluctant to apply this principle to the UK as the New South Wales Parliament was a limited legislature, unlike Parliament in the UK.

Question 16

What is an Act of Parliament?

Answer 16

A bill approved by the Commons and the Lords and granted a royal assent from the Queen.
The Parliament Acts provide an exception to this rule.
It is at the top of the legal hierarchy in the UK. Devolved legislation carries lesser authority, as does secodary legislation and common law.

Question 17

Can the courts question acts of parliament?

Answer 17

“no court of justice can inquire into the mode in which it was introduced into parliament…” so long as it was passed by the Commons, Lords and given the Royal Assent (Edinburgh and Dalkeith Ry v Wauchope [1842]).
Likewise “it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal” (Cheney v Conn [1968]).
Therefore the courts would not accept that parliament had been misled in the enactment of a statute in British Railway Boards v Pickin [1974]. The courts are only concerned with the enforcement of laws.

Question 18

Can Parliament redesign itself?

Answer 18

Yes - the Parliament Acts 1911 and 1949 are examples of this.
Prior to this, the Lords could amend or reject bills if not in agreement. They kept frustrating measures of the Liberals (as they were primarily conservatives) and when they rejected a money bill, the Liberals introduced the Parliament Act 1911. This act reduced the lords ability to delay money bills to a month, stripped their veto power and reduced Parliament’s life from 7 to 5 years.
The 1949 Act reduced powers further.
Therefore in s2(1) of the Parliament Act, bills can become legislation if passed by the Commons and awarded the Royal Assent, notwithstanding that the Lords have rejected the Bill.

Question 19

Acts passed under the Parliament Acts procedure

Answer 19

War Crimes Act 1991
European Parliamentary Elections Act 1999
Sexual Offences (Amendment) Act 2000
Hunting Act 2004

Question 20

Jackson v Attorney General [2005]

Answer 20

This case concerned the Hunting Act 2004 which was rejected by the House of Lords. However Bingham noted that the question turned on the validity of the 1911 Act procedure.

Question 21

Jackson reasoning

Answer 21

Jackson argued as follows:

• 1911 Act created a way for creating delegated legislation
• 1949 Act was delegated legislation as it was created under the 1911 procedure
• 1949 Act was thus ultra vires as it was impossible for delegated legislation to expand its powers allocated under the parent statute
• Thus all subsequent legislation was void as it was created on illegal terms of the 1949 Act

Question 22

Defence reasoning

Answer 22

That under s2(1) of the 1911 Act it stated that the procedure would create ‘acts of parliament’ and not delegated legislation

Question 23

Jackson Judgment

Answer 23

The courts found the act to be valid legislation as both the 1949 act and subsequent 2004 hunting act were acts of parliament and thus not questionable by the courts.
The 1911 merely placed a manner and form requirement on Palriament which they obliged by.
The court of appeal judged that the Parliament Acts procedure could not be used to effect massive constitutional change but the House of Lords disagreed, stating that the only limits to the Acts were those expressly stated in it (money bills and extending the life of Parliament). Hale noted that it was always obvious that the act could effect constitutional change as it had done with the Government of Ireland Act 1922, passed under the procedure.

Question 24

Implications to Jackson

Answer 24

Manner and form requirements are legitimate in the UK constitution - implicit in the judgment and explicitly stated by Steyn and Hale.

This thus accepts the self embracing sovereignty theory as a clear limit has been placed on Palriament.

Question 25

Primary legislation and other sources of law

Answer 25

Parliament is supreme, thus its law displaces all domestic and international law. There are, however, various presumptions used by the courts to recognise constitutional rights and constitutional statutes protected at common law.

Question 26

Primary legislaton and the common law

Answer 26

Statute is superior. Dicey noted that the common law is subordinate to statute.
Many acts of parliaments are to codify, clarify or expand on areas of the common law. Three examples are the
- Larceny Act 1916
- Contempt of Court Act 1981
- Defamation Act 1996
These are three well known examples of this phenomenon. It is less common, but not impossible, for statute to override individual judicial decisions, such as in the Burmah Oil case with the War Damages Act 1965.

Question 27

Primary legislation and international law

Answer 27

Hunt asserts that the courts cannot hold a statute void on grounds of contravening a treaty.
Thus in Mortensen v Peters [1906] a Norwegian fishing boat was carrying out illegal fishing activities between 7 and 5 miles off Scottish shores. International law gave the UK jurisdiction 5 miles off their shores, but an Act of Palriament made the activities illegal up to 7 miles off their shores. It was thus stated that “we have nothing to do with the question whether the legislature has or has not done what foreign powers may consider a usurpation… For us an Act of Parliament… is supreme and we are bound to give effect to its terms…”
However, in the event of an ambiguity in the statute, the courts will presume that they have legislated in a way compatible with their internaitonal law obligations (R v Lyons [2002]).

Question 28

Primary legislation and a constitutional principle

Answer 28

They have not been of such significance to displace an act of parliament yet.
This was seen in the criminal case of R v Jordan p[1967] who contended that the Race Relations Act 1965 restricted his freedom of speech to be racist - the courts could not even argue with the statute, let alone invalidate it.

Question 29

HRA 98

Answer 29

This act gives grounds for parliament to interpret strongly human rights into statute but does not allow them to strike legislation down

Question 30

Anisminic v Foreign Compensation Commission [1969]

Answer 30

The HL found on a 3:2 majority that the ouster clause was invalid in this instance as there is such a strong constitutional principle of being adjudicated on by the courts. Lord Reid stated that “no case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity…” This came close to disapplying a statute however as s4(4) was pretty clear.

Question 31

The interpretative powers of the courts

Answer 31

The various interpretative presumptions are:

• The presumption that parliament was acting with its international obligations in mind
• Domestic statute is not to apply outside the jurisdiction unless plain words state so
• Statutes will not be enforced retroactively unless specific words state so (as in Phillips v Eyre).
• Reading into law so as to give it effect in line with the HRA

Question 32

Recognition of fundamental common law rights

Answer 32

These presumptions by the courts have led to the courts restricting legislation from interfering with common law rights, prior to the enactment of the HRA.

Question 33

ex p Witham [1998]

Answer 33

the Lord Chancellor, by secondary legislation, increased court fees and removed the exemption to those on income support. A challenge was brought by Witham who could not afford to proceed with a defamation claim and brought an action for judicial reivew. Laws LJ made the judgment, striking down the statutory instrument, noting the meta-constitutional nature of the common law and that it can only be abrogated by express Parliamentary words.

Question 34

ex p Simms [2000]

Answer 34

Two prisoners who contested their innocence were of interest to journalists - police powers conferred in the Prison Act 1947 which allowed them to regulate and manage prisons prevented journalists from publishing information from the prisoners and the courts found a breach of freedom of expression. Hoffman found that “even the most general words were intended to subject to the basic rights of the individual.”

Question 35

Lord Cooke of Thorndon’s constitutional rights

Answer 35

Writing extra judicially:

• The right of access to a court
• The right of access to legal advice
• The right to communicate confidentially with a legal adviser under the seal of legal professional privilege
• The right of participation in the democratic process
• Equality of treatment
• Freedom of expression
• Religious freedom
• The right to a fair trial

These are now codified in the HRA, stymieing the development of common law rights.

Question 36

Constitutional statutes

Answer 36

Those which are protected by implied repeal from Parliament, as recognised by Laws LJ in Thoburn v Sunderland CC [2003].

Question 37

Thoburn v Sunderland CC [2003]

Answer 37

There was a clash between UK and EU legislation - the use of weighing measures in teh sale of goods.
Laws LJ recognised the constitutional rights in Simms and Witham, and further recognised constitutional statutes which either (a) conditions the relationship between the individual and the state or (b) enlarges or diminishes the scope of fundamental constitutional rights.

Question 38

How to repeal constitutional statutes

Answer 38

Laws in Thoburn: “Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to affect the repeal or abrogation?.. the ordinary rule of implied repeal does not satisfy this test.”

This permits a degree of common law entrenchment of statutes, giving the UK the benefit of most elements of a written constitution (Laws).

This however is only a manner and form requirement on the legislation as parliament is still competent to legislate in any field whatsoever.

Question 39

Can the courts strike down an Act of Parliament?

Answer 39

Dr Bonham’s Case (1609) suggests yes although Pickin v British Railway Board [1974] asserted that “since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.”
Lord Woolf has stated extra judicial that they can - the parl acted so unthinkably then the courts too would act unprecedentedly.
Baroness Hale supported it with her dicta in Jackson.

Question 40

Contemporary challenges to Parliamentary sovereignty

Answer 40

• Membership of the EU

- The HRA

Question 41

Membership of the EU

Answer 41

• Joined with the European Communities Act 1972 which made EU provisions enforceable in domestic courts

Question 42

EC Act 1972

Answer 42

• s2(1): gives automatic effect to eu law in domestic system
• s2(4): eu law is supreme and all future UK legislation would be passed subject to eu law, undermining the process of repeal
• seriously undermines Dicey’s constitution, prima facie overruling the concept of parliametary sovereignty

Question 43

How is EU law to be interpreted?

Answer 43

There was initial confusion: Denning in Felixstowe Dock and Railway v British Transport Docks Board [1976] stated that a UK statute ‘will dispose of all discussion about the Treaty. These courts will then have to abide by the statute without regard to the treaty at all.’

Denning later overruled this in Macarthy’s v Smith [1980]: ‘In construing our statute, we are entitled to look at the Treaty as an aid to its construction: and even more, not only as an aid but as an overriding force. If… our legislation is deficient… then it is our bounden duty to give priority to Community law.’

UK law, in the event of a clash, was not invalidated: it just was not used (disapplied).

Question 44

A voluntary limit on Parl sov?

Answer 44

Yes - as seen in the Factortame litigation

Question 45

Factortame (No 1)

Answer 45

A group of Spanish fishermen did ‘Quota Hopping’ which was incorporating vessels in the UK and then using UK fishing quotas to fish. Parliament passed the Merchant Shipping Act 1988 which stated that fishing vessels are to be owned as British by 75%.
The effect on the Spanish fishers was catastrophic - they could not fish.
Factortame challenged the statute against directly effective EU law of the right to non-discrimination on the basis of nationality.
The courts applied an interim injunction which was shot down in the Court of Appeal as the courts could not do this under UK law - the House of Lords referred it to the ECJ.

Question 46

ECJ response to Factortame No 1

Answer 46

The ECJ considered two questions:
Was the act incompatible with EU law and what should happen? Yes statute was incompatible (could not be ameliorated through interpretation) and was discriminatory. It referred to Simmenthal which ‘renders automatically inapplicable any conflicting provisions of… national law’
The second question was whether the national courts have the competence to set aside national provisions: yes they did, under a European power (while under a British power this is impossible).

Question 47

Factortame (No 2)

Answer 47

In the second Factortame case the ECJ held the provisions of the MSA had to be disappled in the litigation.
This is where the important Lord Bridge speech comes from.

Question 48

Lord Bridge in Factortame (No 2)

Answer 48

He noted that the disapplication of UK law in favour of EU law was a ‘novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament’.
However, he argued that this view is wrong as it was evident before the UK joined the EU and Parliament was clearly knowledgeable of this limit on sovereignty and they accepted it by enacting the ECA 72.

Question 49

Wade on Factortame

Answer 49

Parliament evidently bound itself as to substantive legislative capabilities - it cannot legislate contra EU law in any circumstance.
He also argued that the ECA 72 overrode the MSA 88 so the traditional view of implied repeal and the Diceyan vision of Parliamentary sovereignty was defeated. He noted that if this does not constitute a revolution, then “constitutional lawyers are Dutchmen.”

Question 50

Allan on Factortame

Answer 50

He argues it was more of an evolution than revolution. Parliament knew full well that it would be bound by acts of the EU. He also argued that Parliament can pull the UK out of the EU at any moment, so their binding is completely voluntary. They were thus merely applying settled constitutional doctrines to novel circumstances.

Question 51

Tomkins on Factortame

Answer 51

According to Tomkins, the courts in Factortame were operating under a European jurisdiction where the EU is the supreme power. The courts were not operating under English law under which Parliament is sovereign and its acts unquestionable.
Tomkins derives this from the view of Lord Bridge that under English law there is no authority to set aside an Act of Parliament however under European law there is - the two systems operate in parallel, and under English law Parliament remains the sovereign authority and under English jurisdiction the courts have no power to strike down statutes.

Question 52

Laws LJ on Factortame

Answer 52

Because the ECA 72 and the MSA 88 do not legislate on the same topic, there is no question of implied repeal being defeated. Nonetheless, the common law recognises the ECA as being a constitutional statute so it is exempt from implied repeal nonetheless.

Question 53

European Union Act 2011

Answer 53

s18 clarifies that EU law has supremacy over UK law but not because of its sui generis nature, but because Parliament permits it to do so.

Question 54

Could parliament act contra to EU law?

Answer 54

Under Denning in Macarthy’s v Smith [1979] if parliament by express words overrides EU provisions then ‘it would be the duty of our courts to follow the statute of our parliament.’ (Allan notes that this imposes a requirement of form (express wording) on future legislation to override EU law).
Contrarily, Bingham LJ in Factortame (No 1) states that for the period of the UK’s membership of the EU it is the ‘duty of the national court to give effect to [applicable EU law] in all circumstances’.

Goldsborough maintains that for as long as the UK retain the power to withdraw from EU, parliament is sovereign.

Question 55

The Human Rights Act 1998 effect on Parliamentary sovereignty

Answer 55

Parliament is not under an obligation to act compatibly with the convention (s6) though all other public authorities are. The Communications Bill 2005 was passed without the ‘statement of compatibility’ from a minister stating that the act was human rights compatible, having no legal effect on the act.
A court declaration of incompatibility (s4) of statutes has no effect on the validity of the law and it leaves a complete legal power within parliament to relegislate on the matter. It only puts political pressure on parliament to amend the law.

Question 56

HRA comparison to USA, Canada, Germany

Answer 56

COmpared to these bills of rights, the HRA is a weak instrument - it leaves in the hands of the judiciary the legal power to protect human rights whereas in these jurisdictions laws can be struck down by courts for interfering with human rights.Thus s4 maintains parliamentary sovereignty, but if the HRA were like these other entrenched bills of rights then parliament would lose its sovereignty.

Question 57

Effect of s3

Answer 57

s3 places something of a restraint on parliamentary sovereignty. The case of R v A [2001] showed how the courts can literally overrule an act of parliament through a strong interpretation of the statute to make it convention compliant. Lord Cooke called this a direct usurpation of parliamentary sovereignty as it is “was powerless to achieve its intention, however clearly articulated”.

However, this case is seen as soemthing of an anomaly and such strong interpretations have not taken place since. The courts only read into statutes where the provision is not seen as fundamental to the statute and does not interfere with the very essence of the act (Ghaidan v Mendoza [2004]).

Question 58

Dicta in Jackson on parl sov

Answer 58

The views of various judges are as follows, where from Bingham to Hale Diceyan orthodoxy is increasingly disregarded:

• Lord Bingham: ‘the bedrock of the British constitution is, and in 1911 was, the supremacy of the crown in parliament… Then, as now, the Crown in parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished.’
• Lord Nicholls: ‘[t]he proper interpretation of a statute is a matter for the courts, not Parliament.’
• Lord Hope: he noted that the courts could ‘define the limits’ of Parliament’s legislative power, despite the sovereignty of Parliament dominating the constitution.
• Lord Steyn: he suggested that parliamentary sovereignty remained the ‘general principle of our constitution’ but it was not any longer ‘uncontrolled’. He went on to say that ‘[the courts] may have to consider whether this is a constitutional fundamental which even a sovereign parliament acting at the behest of a complaisant house of commons cannot abolish’.
• Baroness Hale: she suggested that the courts would treat with particular suspicion and might even reject Parliament attempting to interfere with individual rights or abolish judicial review.