Parliamentary Sovreignty

Question 1

The Orthodox theory of parliamentary sovereignty dates back to the glorious revolution of 1688

Answer 1

Codified in the Bill or Rights 1689

Question 2

Dicey’s definition of parliamentary sovereignty

Answer 2

Parliament has the right to make or unmake any law whatsoever, no body or person can set aside legislation of parliament.

Question 3

Two Limbs of Diceyan theory

Answer 3

Positive Limb: Parliament can enact legislation on any subject matter whatsoever.
Negative Limb: There are no supra-legislative constraints limiting Parliament’s legislative power.

Question 4

Only limit of Diceyan Parliamentary sovreignty

Answer 4

Parliament may not bind itself or future parliaments

Question 5

Dicey’s theory rejects the idea that the courts could invoke natural law or divine law to conclude that a statute was ‘unconstitutional’

Answer 5

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.

Question 6

UK v USA constitutional position

Answer 6

USA: sovereignty lies with the people
UK: sovereignty lies with parliament

Question 7

Three points to support the Orthodox (Diceyan) theory

Answer 7

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

Question 8

Parliament is the Supreme Law Making Body

Answer 8

No subject limits
No Geographical Limits
No temporal limits

Question 9

No Subject limits to Parliament’s power

Answer 9

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)

Question 10

No Geographical Limits

Answer 10

Parliament can override international law
Mortesen v Peters
Cheney v Conn

Question 11

Parliament determines the limit of British Waters even if contrary to international law

Answer 11

Mortesen v Peters

Question 12

Held that statute is the highest form of law in the UK which prevails over any other kind of law (including international law)

Answer 12

Cheney v Conn

Question 13

No temporal limits

Answer 13

Parliament is able to make legislation retrospectively

Burmah Oil

Question 14

No Parliament may be bound by a predecessor or may bind a successor

Answer 14

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)

Question 15

No one can challenge the validity of an act of Parliament

Answer 15

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)

Question 16

Judging the consitutional adequacy of proceedings was entirely beyond the courts powers

Answer 16

Lord Campbell

Edinburgh and Dalkeith Railway

Question 17

If an Act of Parliament has been obtained improperly… the Courts are bound to obey it.

Answer 17

Wile J

Lee v Bude and Torrington Railway

Question 18

Courts do not have any power to question the legality of a bills passage through parliament

Answer 18

Lord Reid

Pickin v British Railways Board

Question 19

Doctrine of Implied Repeal

Answer 19

Courts should unquestioningly apply law of the most recent Act of Parliament
Vaxhall Estates v Liverpool
Ellen Street Estates
- slum clearences

Question 20

The Orthodox theory maintains that a treaty signed by the British government can only have legal effect in Britain if

Answer 20

It is incorporated into British Law by an Act of Parliament

Question 21

Theories of Entrenchment of legislation

Answer 21

The Continuing theory

The Self-embracing theory

Question 22

Continuing Theory

Answer 22

Parliament’s legislative power is created anew every time it meets, irrespective of previous enactments.
This is the Diceyan position

Question 23

The Self-embracing theory

Answer 23

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.

Question 24

In Principle, a particular political value might be entrenched in either

Answer 24

Substantive entrenchment

Procedural Entrenchment

Question 25

Substantive entrenchment

Answer 25

The acceptance of the principle that Parliament cannot legislate at all about specific subjects

Question 26

Procedural Entrenchment

Answer 26

Legislation would not be entrenched very firmly, but one makes reform procedures more rigorous, so legislation becomes more securely entrenched.

Question 27

Rule of Recognition

Answer 27

The courts recognise statutes as the highest form of law

Question 28

Jennings Critique of Orthodox Theory

Answer 28

‘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.

Question 29

Jenning’s ideas rely heavily on three cases

Answer 29

• A-G New South Wales v Trethowan
• Harris v Donges
• Bribery Commissioner v Ranasinghe

Question 30

Att-Gen New South Wales v Trethowan

Answer 30

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

Question 31

Harris v Donges

Answer 31

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

Question 32

Bribery Commissioner v Ranasinghe

Answer 32

The constitution of Ceylon contained several principles (dealing with religious discrimination) which were permanently and substantively entrenched.

Question 33

Wade’s rebuttal to Jennings

Answer 33

• 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.

Question 34

Wade’s perspective on Parliamentary Sovereignty

Answer 34

Parliament is the ultimate political fact

The only thing that could have removed the legislative sovereignty of Parliament was another revolution.

Question 35

Challenges to the Orthodox/ Diceyan Theory

Answer 35

The Act of Union
Women's Enfranchisement 
The European Communities Act 
Devolution 
The Human Rights Act 1998
Fox Hunting Ban

Question 36

Orthodox: The Act of Union 1707

Answer 36

The orthodox view of parliament is a distinctly English Concept
The Scottish Parliament and constitution was swallowed up by the English one.

Question 37

Challenge: The Act of Union

Answer 37

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

Question 38

Entrenchment: The Act of Union

Answer 38

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.

Question 39

Act of Union: Entrenchment rebuttal

Answer 39

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.

Question 40

Act of Union: Rebuttal of challenge.

Answer 40

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.

Question 41

Challenge: Woman’s enfranchisement

Answer 41

Women meeting the criteria entitling a man to vote
Chorlton v Lings
Naim v University of St. Andrews (extending the vote to graduates)

Question 42

Rebuttal: Woman’s enfranchisement

Answer 42

Keating J (Chorlton v Lings): the legislature, ‘if desirous of making an alteration so important and extensive, would have said so plainly and distinctly’.

Question 43

European Communities Act: Challenges

Answer 43

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

Question 44

Costa v ENE

Answer 44

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

Question 45

van Gend en Loos

Answer 45

ECJ held that EU law is directly effective

This is incompatible with Dicey’s negative limb

Question 46

Factortame (No.2)

Answer 46

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)

Question 47

Wade: Factortame

Answer 47

• There was a revolution (albeit a quiet one)

- The doctrine of implied repeal no longer applies to EU law.

Question 48

Craig: Factortame

Answer 48

No revolution

- merely a development of the existing common law rules fo interpretation, but orthodoxy remains correct.

Question 49

Thornburn v Sunderland

Answer 49

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

Question 50

McCarthys v Smith

Answer 50

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

Question 51

European Union Act 2011

Answer 51

The only reason that the doctrine of implied repeal does not happen is due to this act
- Factortame not a revolution

Question 52

R (on the application of Miller)

Answer 52

Lord Neuberger

- Parliament and not the executive is the highest sovereign law maker in the UK

Question 53

Devolution: Challenge

Answer 53

Devolution has undermined parliamentary sovereignty

• Scotland Act 1998
• NI Act 1998
• Gov’t Wales Act 1998

Question 54

Devolution: Rebuttal

Answer 54

Devolved parliaments must comply with statutes passed by the Westminster Parliament
- their powers could theoretically be repealed at any time.

Question 55

HRA: challenge

Answer 55

S. 3: courts have to interpret statue as compatible with ECHR
s. 4: courts can declare legislation incompatible with the ECHR

Question 56

HRA: Rebuttal

Answer 56

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.

Question 57

R (Jackson) v Att Gen [fox hunting]

Answer 57

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.