Parliamentary Soveriegnty Critics & Essay Points Flashcards
Intro paragraph?
3 key principles to mention
2 points to sum up with.
Parl sov introduced by Dicey in 1885
3 principles:
POSITIVE LIMB
1. Parliament = supreme law-making body
2. No parliament may bind a successor or be bound by a predecessor
NEGATIVE LIMB
3. No person or body has the power to override legislation passed by Parliament
Parliament and legislative formula =HoL + hoc + royal assent
Natural law theory, man can’t be judge in own case (dav v Savadge)
Doubts on orthodoxy go right back to city of London v wood, backing up coke’s ideas in Dr Bonham’s Case 1610
Doctrine of parl sov still applies today, though has been substantially modified and limited, esp by ‘constitutional statutes’ and HRA, devolution, EU law (Factortame, thorburn)
There is a distinction to be drawn between parliament’s legal power and its practical limitations (said in Jackson)
Functionalist, not formalist view of the principle should be taken.
Para 1: original doctrine (4 points) and challenges (3 points)?
Original doctrine:
1. Can legislate retrospectively (burmah oil v Lord advocate) but not prospectively. Cf. lady hale in Jackson
2. Can legislate on any matter it chooses
Hoffmann said in ex p Simms it could even legislate in contravention of fundamental rights if it wanted to (and used express words)
3. Can legisl slate beyond its jurisdiction (mortensen v peters)
4. Parliamentary legislation is superior to international treaties (Chenney v Conn)
Challenges:
1. Political reality. The limits to what parl can do in reality are political (ex p Simms, per Lord Hoffmann)
2. EU
S.2(1) ECA 1972. Factortame, thorburn. Webb. Lister v Pfeiffer. Duke v reliance.
3. Devolution
Parliament retains power to makes laws for Scotland but Scotland Act 1998 - Scotland has powers to legislate on matters including education, health, environ, transport, law, justice, policing.
Would be practically impossible to regain these devolved powers.
Para 2?
No parl can bind a successor or be bound by a predecessor
Original doctrine:
Trethowan cf. Harris v Minister of Interior
Express repeal cf. implied repeal (Vauxhall st estates, Ellen st estates)
Challenges:
1. Partial entrenchment
2. Constitutional statutes
Thoburn
Acts of the union McCormick and Gibson per Lord Keith
3. No act of parl can extend to a dominion (former colony) without their consent (Manuel can repeal statute of Westminster cf. Blackburn denning said would be impossible in practice)
4. Judicial comments
Jackson!
Hale - no reason why parl shouldn’t be able to bind itself upwards as well as downwards
Woolf - limits on parl sov. (Has since resiled)
Thorburn!
Laws constitutional statutes arg
Sedley parl sov has been replaced with a new and emerging constitutional paradigm consisting of a bi-polar sov of the crown in parliament and the crown in the courts (like what Coke said in Dr Bonham’s case! Courts not giving effect to act of parl!!)
Two academics to mention on challenges to parl sov?
Jennings and Wade
Jennings: self-embracing theory = rule of recognition (steps court must follow in det if statute constitutional or not) + parliament superior to CL + parl can enact leg to change the rule of recognition if it wants to.
So in theory parl can do anything it wants to except bind itself
Wade: rule of recognition is superior to CL. This is s political reality but not a technical rule. Parl superior to courts so can bring a bill forward, and can enact a statute to change the rule of recognition.
Only a revolution or a change in the judge’s oath could remove parl sov.
So these opinion firmly back the orthodoxy!
Para 3?
No person or body has power to overrule leg passed by parl either procedurally (rule of recognition) or substantively (substance of act).
Procedure: ENROLLED BILL RULE
Court has to assume that leg passed has been passed according to the correct procedure (Pickin v British Railways Board)
This rule applies even where parl has breached its own rule in passing the legislation (Edinburgh v Wauchope)
Substantive: no court can review or alter the substance of an act (ex p Cannon Selwyn). An act is superior to international laws and treaties (Chenney v Conn)
Challenges:
1. HRA s.4
RvA Lord Steyn s.3 and using s.4 as a last resort
- ECA 1972
Have to use a purposive approach to give effect to Community law (Macarthy’s v Smith)
Can involve departing from the prima facie meaning of statute (Garland v British Rail)
Courts prepared to distort leg meaning (Pickstone v Freeman)
Where conflict can DISAPPLY uk law (Factortame)
Note purposive approach was rejected in Duke v Reliance. - Judicial comments
Jackson:
Hope: parl sov is no longer, if it ever was, absolute.
Steyn: may have to qualify a principle established on a different hypothesis of constitutionalism.
SO judiciary seem increasingly prepared to admit and challenge parl sov (at least in its absolute form)
The courts may be prepared to intervene where statute violates the rule of law (AXA v Scottish Minister, per Lord Hope)
Conclusion?
Traditional doctrine of parl sov, while intact legally, has been substantially modified and limited, particularly in practical terms.
Factortame
Wade - a new rule of recognition
Craig - merely a development of existing CL rules of interpretation, orthodox theory was correct.
Allen - same as Craig, but orthodox theory was wrong
ECA 1972 = entrenching as well as constitutional act.
