Parliamentary Sovereignty

Question 1

“Parliamentary Sovereignty”

Answer 1

Seen as central feature of UK constitution - simple, absolute and unalterable - even by parliament itself

Question 2

Elliott: PS

Answer 2

Principles of PS have changed markedly over the last 20 years

Question 3

Wade: PS

Answer 3

No legal limitations to its legislative competence

Question 4

Bradley: PS

Answer 4

Formal relationship between parliament and the courts

Question 5

Dicey: PS

Answer 5

Parliament has the right to “make and unmake any law whatsoever” and courts cannot hold laws as void/invalid/lacking in legal effect

Question 6

Madzimbamuto v Lardner-Burke - Lord Reid

Answer 6

Lack of legal as opposed to moral or conventional (political) restrains, but that does not mean its beyond parliament to do the immoral or unconventional - the courts would not hold the Act of Parliament invalid

Question 7

Bellamy

Answer 7

So there must be conventional restraints upon Parliament’s powers (referred to by Lord Reid) - is legislative supremacy parasitic upon the more general distinction between law and convention

PS = tame because of moral/conventional constraints

Question 8

Dicey’s 3 tenets of PS

Answer 8

1. (positive limb) Parliament has the right to make and unmake ant law whatsoever
2. (negative limb) No person or body is recognised by the law of England as having the right to override or set aside parliamentary legislation
3. Right/power of parliament extends to every part of the Queen’s dominion

Question 9

Historical extend of PS

Answer 9

Retroactive penal legislation, prolonged its own existence, transformed itself into a new body (Union Acts), altered law making procedure (Parliament Acts) and changed succession to the throne

Question 10

Munro: PS

Answer 10

(along the line of political constitutionalists and Lord Reid) Just because there is no judicial power to render acts of parliament void does not mean that the legislature is unlimited because subject to electors and the non-judicial process

Question 11

No longer true that no court can set aside an Act of parliament Dicey

Answer 11

1) Ex parte Factortame

2) Ex parte Equal Opportunities Commission

Question 12

3 categories of possible limitations on PS

Answer 12

1. Substance-based limitations: acts’ conflict with other legal systems or with fundamental constitutional principles
2. Form-based limitations: if courts decided what amounted to a valid act
3. Limitations of parliament by parliament itself

Question 13

Substance-based limitations

Answer 13

Could take one of three forms

a) refusal to apply statute
b) imposition of requirement for express words on parliament
c) restrictive interpretation of statute by courts

Question 14

Mortensen v Peters

Answer 14

UK domestic law overrides international law and treaty obligations

M (Norwegian fisherman) was charged with illegal fishing in the Moray Firth contrary to Herring Fishery Scotland Act 1889, which excluded the whole area even thought this was international waters and thus subject to completing treaty obligations

Question 15

Cheney v Conn

Answer 15

Confirmed Mortensen v Peters
Here, a taxpayer appealed against an assessment of income tax under Finance Act 1964 on the basis that the money would go towards construction of nuclear weapons, contrary to Geneva Convention

Question 16

Ex parte Brind

Answer 16

SUGGESTED moderate limitation on PS in that courts will strive to interpret statute consistently with UK’s treaty obligations

Question 17

R v Jordan

Answer 17

Held: Parliament was supreme and there was no power invested in the courts to question validity of Acts not even for the protection of constitutional principles (here, free speech)

Question 18

Express word requirement: Parliament must directly confront what it is doing, ambiguous words are not sufficient

Answer 18

Courts have been prepared to impose on Parliament very strong presumptions that P is not trying to breach certain fundamental principles

Question 19

Ex parte Simms

Answer 19

Lord Hoffmann: Principle of legality means that P must squarely confront what it is doing and accept the political cost –> fundamental rights cannot be overridden by ambiguous words

Question 20

Ouster clauses –> courts impose intention of protection of constitutional principles on P

Answer 20

Anisminic || ex parte Gilmore

Question 21

Ahmed v UK Treasury (first decision of SC)

Answer 21

Even most general words in a statute are subject to the basic rights of the individual

Question 22

Thoburn v Sunderland CC

Answer 22

Laws LJ: common law distinguishes between 2 types of statute

1) ordinary statutes (may be impliedly repealed)
2) constitutional statutes (may NOT be impliedly repealed)

Question 23

HS2 Action Alliance

Answer 23

2014: SC confirmed existence of constitutional statutes

Lords Neuberger and Mance - ECA 1972 and Art. 9 of the 1689 Bill of Rights are constitutional

Question 24

Allen on HS2 Action Alliance

Answer 24

Undermines Dicey’s notion of a “normative flatness” in which all statutes are equal

Question 25

Lord Woolf (1995 article)

Answer 25

Parliament could never oust JR - both P and courts are bound by RoL and could never transgress its requirement (that is review)

Question 26

Saga over the Asylum Bill 2003

Answer 26

Issue of ouster clauses nearly boiled to a head - Lord Phillips (the SC president) repeated Lord Woolf’s verbatim:
“If Parliament did the inconceivable, we might do the inconceivable as well”

Question 27

Form-based limitations on PS: ENROLLED BILL RULE

Answer 27

Courts will not entertain arguments that defects in internal legislative procedure invalidate what, on the fact of it, is a valid Act

Question 28

Edinburgh and Dalkeith Railway v Wauchope

Answer 28

OBITER - Lord Campbell:
“If according to Parliament an Act has passed both Houses and received royal assent, a court cannot enquire the manner in which it was intended to be introduced into parliament”

Question 29

Pickin v British Railways Board

Answer 29

Confirmed Enrolled Bill Rule (set out in Edinburgh) - Lord Reid’s leading judgement:
HoL was not entitled to examine proceedings in Parliament to show the Act had been passed due to fraud

Question 30

Did Parliament undermine its own legislative supremacy in Parliament Act 1911, effectively creating a subsidiary parliamentary body?

Answer 30

A-G v Jackson (opponents of Hunting Act 2004): NO

Question 31

A-G v Jackson

Answer 31

Hunting Act 2004 was a legally invalid measure because passed under Parliament Act 1949 which had derived from Parliament Act 1911 which seemingly introduced “subordinate parliament”

“Subordinate Parliament”: s. 1 (1911 Act) - in exceptional matters, Parliament could reduce itself from a chamber of 3 constituent parts to one of only 2.

BUT, accepting Wade’s analysis of PS as political rather than legal fact, that could have only been done through political revolution NOT by legal Act –> Hunting Act 2004 (derived from the 2 Parliament Acts) was illegal!

Elliot and Loveland: HoL, sitting with all 9 judges, rejected this (very unconvincingly)

Question 32

Stockdale v Hansard

Answer 32

Courts will not apply doctrine of legislative supremacy to motions of constituent bodies of Parliament or bills approved in default of the Parliament Acts 1911+1949
–> Dicey’s idea of PS: “commands of Parliament van only be uttered through the combined actions of its three constituent parts”

Question 33

Munro on orthodox theory of limitation of its own powers

Answer 33

Parliament cannot limit its own powers:
“Acts which purport to bind later Parliaments, accepting that Dicey is correct, are not invalid but merely ineffective” because PS applied to all Parliaments!

Question 34

2 cases - Implied repeal (Parliament may not bind its successors)

Answer 34

1) Vauxhall Estates v Liverpool Corporation
2) Ellen Street Estates v Minister of Health

Housing Act 1925 offered less generous provisions than Acquisition of Land Act 1919 (compensation for land compulsory acquired)

Question 35

Vauxhall Estates v Liverpool Corporation

Answer 35

Argument for entrenchment rejected - Avory J:

inconsistent with the constitution of this country

Question 36

Ellen Street Estates v minister of Health

Answer 36

Argument for entrenchment rejected - Maugham LJ:

confirmed doctrine of implied repeal

Question 37

The Union Acts with Scotland (1707) and Ireland (1800)

Answer 37

ARGUMENT: Acts were passed by the English and Scottish/Irish Parliaments, who dissolved themselves to constitute the UK parliament –> these provisions are not able to be repealed because it was a conditional operating precedent that they wouldn’t be

Question 38

Munro: CONTRA Union Acts argument

Answer 38

UK parliament has felt entitled to pass legislations derogating from virtually all the provisions of the Union Acts

Question 39

McCormick v Lord Advocate (SCOTTISH CASE)

Answer 39

Lord President Cooper: he did not understand how English constitutional theorist had come to conclusion UK parliament not bound by Union Acts –> non-justiciable!

Question 40

Granting independence to former colonies - parliament clearly divested itself of authority to legislate

Answer 40

Canada, Northern Ireland

Question 41

Canada Act 1982, s. 2

Answer 41

“No Act of Parliament of UK Parliament after the Constitution Act 1982 (Canada) comes into force shall extend to any part of Canadian law”

–> Canadian courts would simple ignore UK attempt to repeal BECAUSE a Wade-like ultimate political fact has changed PS (political revolution rendering Canada independent)

Question 42

Manuel v A-G

Answer 42

Megarry VC: Canada Act 1982 COULD be impliedly repealed because Parliament cannot bind itself
–> merely serves to outline logic underpinning PS, would in reality probably be ignored as “what is done is done”

Question 43

Northern Ireland Act 1998, s. 1: majority of Northern Ireland must vote for NI to cease being part of HM dominions

European Union Act 2011: referendum lock

HOW WOULD THE COURTS REACT IF PARLIAMENT IGNORED THIS BECAUSE IT IS SOVEREIGN?

Answer 43

How have Privy Council and other common law jurisdictions dealt with such issues - can Parliament bind itself as to manner and form?

Question 44

A-G for New South Wales

Answer 44

s. 5 Colonial Law Validity Act 1865: “every representative legislature shall in respect to the colony under its jurisdiction, have full power to make laws respecting the constitution, power and procedure of such legislature”

Legislature of New South Wales:

1929 Act which required any future bill purporting to abolish upper chamber of Parliament to be endorsed by referendum

1930 legislature (acting by way of a new majority government) repealed 1929 Act and then abolished upper chamber - NO REFERENDUM

UK Privy Council: dismissed appeal - manner and form of 1929 Act had to be followed (New South Wales legislature could bind itself)

Viscount Skankey LC: Colonial Validity Act 1865 = constituent instrument of the dependencies –> UK parliament could determine that derivative parliaments could bind themselves precisely because they were not sovereign

UK parliament does not have constituent instrument –> cannot be bound

Question 45

Munro on Trethowan

Answer 45

“its hard to see how this can tell us anything about the UK parliament, whose powers are not defined and not derived from statute”

Question 46

Wade on Trethowan, Harris and Ranasinghe

Answer 46

They have no applicability to UK. Rather they were examples of statutorily created bodies acting ultra vires - UK parliament is not a statutorily created body, its supremacy is an ultimate political fact

Question 47

Harris v Minister of Interior

Answer 47

s. 63 South Africa Act (entrenched by s. 125, requiring 2/3 majority of both houses): equal suffrage rights to “coloured voters”

The Statute of Westminster 1931: 1865 Colonial Validity Act no longer applies to Africa!

Post WWII - new Apartheid government sought to repeal s. 63 by simple majority in each house - DOES MANNER AND FORM APPLY?

Centrilives CJ:
parliamentary sovereignty without simple majority - s. 125 was still part of the constitutional framework, because part of constitutional settlement
Still sovereign regarding s. 63 because with 2/3 majority it can act freely

Question 48

Entrenchment of manner and form cases

Answer 48

Trethowan, Harris and Ranasinghe

Question 49

Bribery Commission v Ranasinghe

Answer 49

Ceylon’s constitution set by British law:

s. 29 entrenched certain previsions (requiring 2/3 majority), including s. 55 that judiciary would be appointed by independent Judicial Services Commission

Bribery Amendment Act 1958: established Bribery Tribunal, taking over jurisdiction from ordinary courts in bribery matters and selected NOT by Judicial Services Commission (but government) s. 29

Lord Pearce: “A legislature has no power to ignore the conditions of law-making that are imposed by its own constituent instrument”
–> UK parliament has no constituent instrument, argument does not apply

Question 50

Attorney-General v Jackson

Hale and Steyn

Answer 50

Endorses/leaves open the manner and form argument

Lady Hale: Parliament redefined the procedure necessary to produce a valid Act by the 1911 Act and since it could remove requirements necessary to create a valid Act (here, consent of HoL) –> might very well be that it can redefine itself upwards, to require a particular parliamentary majority

Lord Steyn: parliament could, for specific purposes, bind itself with a 2/3 majority!

Question 51

RV Heuston

Answer 51

PS is a legal concept, but the rules that governed identity and composition sovereignty and well as its procedures were LOGICALLY PRIOR to this concept –> UK parliament could adopt manner and form entrenchment

Question 52

Bradley: CONTRA Heuston’s manner and form entrenchment argument

Answer 52

H’s procedural entrenchment not limited to fundamental laws - could apply to any law –> threat to democracy: corrosive to organic change to legislation!

Question 53

Bradley

Answer 53

Whether P can procedurally entrench itself is not a matter of constitutional law but constitutional practice - constitution is actually a dynamic political settlement, ever-negotiated between the people and different arms of government –> changes in UK constitutional law following end of empire, entry into EU…

Question 54

Sir Ivor Jennings vs. Professor William Wade

Answer 54

common law rule of recognition vs. ultimate political fact

Question 55

Jennings

Answer 55

Why do courts recognise statute as highest form of law? In the absence of supra-legislative constitution –> PS recognised by courts in common law = rule of recognition

Entrenchment of manner and form provisions:

1) rule of recognition = common law instruments
2) statute legally > common law
3) Thus P. can enact legislation forcing P. to change the rule of recognition and force courts to accept that some acts are protected from repeal by simple majority

(drawing on colonial cases - Harris, Trethowan, Ranasinghe - pretty much Dixon J’s argument in Harris)

Question 56

Wade in response to Jennings

Answer 56

Nonsensical - If no statute can establish rule that courts obey Acts of parliament, then not no statute can alter/abolish the rule
–> political concept (established when parliament asserted its legislative supremacy during the Glorious Revolution) –> CHANGE NEEDS POLITICAL REVOLUTION NOT LEGAL EVOLUTION

Question 57

PRO Wade

Answer 57

Ultimate political fact changed when we joined EU and procedural entrenchment was introduced with Factortame

Similarly: signing ECHR after WWII + importation of notion of HR into our political settlement –> introduction of continental legal philosophy (with its emphasis on fundamental laws –> apex in Jackson

Question 58

NOW: May government

Answer 58

Evidence that Parliament can now restrict itself as to the form of future legislation:
March 2017 White Paper on the “Great Repeal Bill” - indicating that latter will only come into law the day Britain withdraws from the EU –> ECA 1972 will still be effective until 2019 –> s. 2 and its interpretation regarding PS (Factortame) still effective

Question 59

Factortame (no 2)

Answer 59

Lord Bridge: s. 2 ECA 1972 was entrenched provision, incorporated into every subsequent UK Act that contains directly effective EU rights –> misapplied Merchant Shipping Act 1988

Question 60

Ex parte Equal Opportunities Commission

Answer 60

Built on Factortame (No 2) and relying on Simmenthal –> power of disapplication

Question 61

Thoburn v Sunderland CC: s. 2 ECA 1972 = strong substantive or weak procedural entrenchment

Answer 61

Eleanor Sharpston QC:
Factortame (No 2) interpreted s. 2 as entrenching the supremacy of EU law directly –> courts could NEVER apply a competing national provision

Laws LJ REJECTED this:
s. 2 does not entrench EU law directly but merely a form of statutory interpretation

Question 62

Wade on Factortame

Answer 62

Factortame = judicial revolution

Parliament did not intend s. 2 to be an entrenchment mechanism –> judges under Lord Bridge themselves changed the common law rule of recognition = political act

COURTS HAD CHOSEN TO TREAT PS AS FREELY ADJUSTABLE COMMODITY UPON WHICH ANY LIMITATION COULD BE IMPOSED BY COURTS

Question 63

Allan: CONTRA Wade on Factortame

Answer 63

Diceyan notions of sovereignty should not be the starting point - courts have always shown themselves willing to disappply legislation they saw threatening to RoL

Question 64

HRA 1998, s. 3(2) and 4(6)

Answer 64

HRA MAKES NO FORMAL ATTEMPT TO ENTRENCH ITSLEF

If any statutes contain contain provisions inconsistent with convention rights, they will remain valid and of full effect - OVERTURNING DOCTRINE OF IMPLIED REPEAL

Question 65

HRA 1998, s. 3(1)

Answer 65

Principle of consistent interpretation –> R v A (no 2)

Question 66

R v A (no 2)

Answer 66

s. 41 Youth Justice and Criminal Evidence Act 1999 prohibited the giving of evidence in rape cases of woman’s sexual history –> contrary to Art 6 (fair trial) –> HRA could be used to modify the meaning of 1999 Act

Question 67

R v A (no 2) - Lords Steyn and Hutton

Answer 67

Only way P. can legislate contrary to Convention rights would be clearly and expressly in statute –> they simply read into s. 41 words that weren’t there

Question 68

R v A (no 2) - Lord Hope

Answer 68

Lords Steyn and Hutton had crossed from interpretation to legislating –> contradicting P. since they had clearly intended to prevent judicial discretion by including s. 41 IN THE FIRST PLACE

Question 69

Re S and W (care homes)

Answer 69

Supported Lord Hope’s approach in R v A (no 2) and a more restrained reading of s. 3(1)

Question 70

Ghaidan Mendoza || Secretary of State for the Home Department v AF (no 3)

Answer 70

Supported Lords Steyn and Hutton’s bold use of s. 3(1)

Question 71

Bellinger v Bellinger

Answer 71

Courts may refuse even a linguistically modest adjustment to the meaning of legislation if they consider that the change has far-reaching consequences, better considered by P.