Parliamentary Sovreignty Flashcards
The Orthodox theory of parliamentary sovereignty dates back to the glorious revolution of 1688
Codified in the Bill or Rights 1689
Dicey’s definition of parliamentary sovereignty
Parliament has the right to make or unmake any law whatsoever, no body or person can set aside legislation of parliament.
Two Limbs of Diceyan theory
Positive Limb: Parliament can enact legislation on any subject matter whatsoever.
Negative Limb: There are no supra-legislative constraints limiting Parliament’s legislative power.
Only limit of Diceyan Parliamentary sovreignty
Parliament may not bind itself or future parliaments
Dicey’s theory rejects the idea that the courts could invoke natural law or divine law to conclude that a statute was ‘unconstitutional’
Holt CJ: ‘an act of parliament can do no wrong, though it may do several things that look pretty odd’
Forbes v Cochrane (contradicting)
- would not enforce a law permitting slavery as it was again the law of nature and god.
UK v USA constitutional position
USA: sovereignty lies with the people
UK: sovereignty lies with parliament
Three points to support the Orthodox (Diceyan) theory
Parliament is the Supreme Law Making body
No Parliament can be bound by a predecessor or may bind a successor
No one can challenge the validity of an act of Parliament
Parliament is the Supreme Law Making Body
No subject limits
No Geographical Limits
No temporal limits
No Subject limits to Parliament’s power
Parliament can limit fundamental rights so long as they use express language (R v S (ex p Simms))
Parliament can alter the line of succession (Act of Settlement 1701)
No Geographical Limits
Parliament can override international law
Mortesen v Peters
Cheney v Conn
Parliament determines the limit of British Waters even if contrary to international law
Mortesen v Peters
Held that statute is the highest form of law in the UK which prevails over any other kind of law (including international law)
Cheney v Conn
No temporal limits
Parliament is able to make legislation retrospectively
Burmah Oil
No Parliament may be bound by a predecessor or may bind a successor
Doctrine of Implied Repeal: if there is inconsistency in two acts of Parliament then it is the later one which prevails
(Ellen St Estates)(Vaxhall Estates)
No one can challenge the validity of an act of Parliament
The ‘Enrolled Bill Rule’: once a bill is on the statue book the courts will not examine how it got there
Impropriety did not invalidate legislation already on the statue books
(Edinburgh and Dalkeith Railway)
(Lee v Bude and Torrington Railway)
(Pickin v British Railways Board)
Judging the consitutional adequacy of proceedings was entirely beyond the courts powers
Lord Campbell
Edinburgh and Dalkeith Railway
If an Act of Parliament has been obtained improperly… the Courts are bound to obey it.
Wile J
Lee v Bude and Torrington Railway
Courts do not have any power to question the legality of a bills passage through parliament
Lord Reid
Pickin v British Railways Board
Doctrine of Implied Repeal
Courts should unquestioningly apply law of the most recent Act of Parliament
Vaxhall Estates v Liverpool
Ellen Street Estates
- slum clearences
The Orthodox theory maintains that a treaty signed by the British government can only have legal effect in Britain if
It is incorporated into British Law by an Act of Parliament
Theories of Entrenchment of legislation
The Continuing theory
The Self-embracing theory
Continuing Theory
Parliament’s legislative power is created anew every time it meets, irrespective of previous enactments.
This is the Diceyan position
The Self-embracing theory
Parliament’s sovereignty includes the power to bind itself and its successors.
Only certain measures can be legally entrenched and rendered immune from repeal by a future parliament.
In Principle, a particular political value might be entrenched in either
Substantive entrenchment
Procedural Entrenchment
Substantive entrenchment
The acceptance of the principle that Parliament cannot legislate at all about specific subjects
Procedural Entrenchment
Legislation would not be entrenched very firmly, but one makes reform procedures more rigorous, so legislation becomes more securely entrenched.
Rule of Recognition
The courts recognise statutes as the highest form of law
Jennings Critique of Orthodox Theory
‘the power of a legislature derives from the law by which it is established’
- the rule of recognition is a common law concept
- statute is legally superior to the common law
- Parliament can therefore enact legislation changing the rule of recognition and require the courts to accept that some Acts are protected from repeal.
Jenning’s ideas rely heavily on three cases
- A-G New South Wales v Trethowan
- Harris v Donges
- Bribery Commissioner v Ranasinghe
Att-Gen New South Wales v Trethowan
Majority held that the court was bound to prevent any bill dealing with the certain subject matter being sent for Royal Assent unless approved in a referendum
Harris v Donges
The South Africa Act: the South Africa parliament could not pass laws ‘repugnant’ to British statutes intended to have effect within SA
- Court invalidated acts of Apartheid
Bribery Commissioner v Ranasinghe
The constitution of Ceylon contained several principles (dealing with religious discrimination) which were permanently and substantively entrenched.
Wade’s rebuttal to Jennings
- these cases are irrelevant to the sovereignty of the British Parliament
- In the cases there was a ‘higher law’ to which the Act’s in questions were subordinate i.e. the British Parliament
- Britain, in contrast, has no higher source of law than Parliament. Nor is there any obvious colonial master which the British Parliament owes its existence.
Wade’s perspective on Parliamentary Sovereignty
Parliament is the ultimate political fact
The only thing that could have removed the legislative sovereignty of Parliament was another revolution.
Challenges to the Orthodox/ Diceyan Theory
The Act of Union Women's Enfranchisement The European Communities Act Devolution The Human Rights Act 1998 Fox Hunting Ban
Orthodox: The Act of Union 1707
The orthodox view of parliament is a distinctly English Concept
The Scottish Parliament and constitution was swallowed up by the English one.
Challenge: The Act of Union
The Act of Union was a Merger not a takeover
The Treaty should be seen as a ‘constituent instrument’, restricting the legislative powers of the British Parliament
Entrenchment: The Act of Union
Art 25: the Treaty should supersede all existing laws incompatible with its terms
Art. 2: All papists shall be excluded from possessing the imperial crown of great Britain.
Act of Union: Entrenchment rebuttal
No provision as to how the entrenched provisions might be safeguarded against subsequent statutory infringement.
Most of the supposedly entrenched provisions of the Treaty are no longer in force and legislators have treated it as any other legislation, capable of being impliedly repealed.
Act of Union: Rebuttal of challenge.
McCormack v Lord Advocate
- Challenging the Royal Titles Act
- Scotland has never had a QEI so why QEII?
- Orthodox theory is an english concept and so follows that this applies to GB in the same manner as the royal succession.
Challenge: Woman’s enfranchisement
Women meeting the criteria entitling a man to vote
Chorlton v Lings
Naim v University of St. Andrews (extending the vote to graduates)
Rebuttal: Woman’s enfranchisement
Keating J (Chorlton v Lings): the legislature, ‘if desirous of making an alteration so important and extensive, would have said so plainly and distinctly’.
European Communities Act: Challenges
If Parliament is sovereign, how can there by any higher law which binds it?
The ECA empowers the courts to ‘disapply’ legislation
(International Handelsgesellschaft)
- All EU Law is supreme over domestic law
Costa v ENE
ECJ held that the EC is a new legal order of international law which is sovereign over domestic law
This is incompatible with Dicey’s positive limb of Parliamentary Sovereignty
van Gend en Loos
ECJ held that EU law is directly effective
This is incompatible with Dicey’s negative limb
Factortame (No.2)
Whatever limitation of its sovereignty, Parliament accepted in 1972, it was entirely voluntary.
- It was held that parliament had the capacity to limit its own sovereignty
The ECA could NOT therefore be impliedly repealed like other legislation (Vaxhall Estates)
Wade: Factortame
- There was a revolution (albeit a quiet one)
- The doctrine of implied repeal no longer applies to EU law.
Craig: Factortame
No revolution
- merely a development of the existing common law rules fo interpretation, but orthodoxy remains correct.
Thornburn v Sunderland
A number of constitutional statutes which were immune to the doctrine of implied repeal
e. g. Magna Carta, The Bill of Rights
- the ECA was one of these
McCarthys v Smith
Denning
- if parliament deliberately passed an Act intending to repudiate the EC Treaty Expressly, the courts would have no choice but to follow the provisions of the act
European Union Act 2011
The only reason that the doctrine of implied repeal does not happen is due to this act
- Factortame not a revolution
R (on the application of Miller)
Lord Neuberger
- Parliament and not the executive is the highest sovereign law maker in the UK
Devolution: Challenge
Devolution has undermined parliamentary sovereignty
- Scotland Act 1998
- NI Act 1998
- Gov’t Wales Act 1998
Devolution: Rebuttal
Devolved parliaments must comply with statutes passed by the Westminster Parliament
- their powers could theoretically be repealed at any time.
HRA: challenge
S. 3: courts have to interpret statue as compatible with ECHR
s. 4: courts can declare legislation incompatible with the ECHR
HRA: Rebuttal
Courts cannot use their s. 3 powers to refuse to give effect to an Act
Courts cannot strike down legislation under s. 4, they can merely send it back to parliament for review
Smith v Scott
- parliament did not change the law on the question of prisoners voting rights after a declaration of incompatibility.
Parliament can repeal the HRA - it only remains enforceable because parliament wishes it to.
- British Bill of rights has been suggested.
R (Jackson) v Att Gen [fox hunting]
Lord Steyn
- parliamentary sovereignty is a construct of the common law, the judges created this principle
Lord Woolf
- there are limits of the sovereignty of parliament and it is the courts responsibility to identify and uphold.
Lord Neuberger
- Parliamentary Sovereignty was acknowledged rather than bestowed upon by the courts.
