PUBLIC LAW Flashcards
Parliamentary
What is Parliamentary Sovereignty?
Parliamentary Sovereignty is a principle of the UK constitution which makes Parliament a supreme legal authority in the UK which can create or end any law.
Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.
Summary of the history of Parliamentary Sovereignty
Why does the history matter?
Demonstrates that the balance of power between
institutions has changed over time.
Shows Parliamentary Sovereignty has not always been a
principle of the UK Constitution.
Arguably suggests Parliamentary Sovereignty is not
necessarily permanent or fixed / unchanging.
History
- The FRENCH invade
In 1066 a Frenchman earned the nickname William the
Conqueror by killing a man called Harold in Hastings and
becoming King William I of England
BIRTH OF PARLIAMENT
King William I was an absolute monarch –
all state power belonged to him.
There was no police force, so he relied on
noblemen to keep public order.
In return for this help, the King consulted
noblemen and sought their consent to his
decisions.
Gradually this consultation system evolved
into a Parliament
A SPOT OF BOTHER
GLORIOUS REVOLUTION
THE ORTHODOX UNDERSTANDING
OF PARLIAMENTARY SOVEREIGNTY
1.Dicey’s Definition of
Parliamentary Sovereignty
2.A Descriptive Theory
3.A ‘Legal’ (not ‘Political’)
Doctrine
4.Challenging the Orthodoxy
DICEYS definition of Parliamentary Sovereignty
There are two limbs
Positive Limb
Negative Limb
DICEYS definition of Parliamentary Sovereignty -A third LIMB - Parliament cannot bind its successors
The first two limbs may seem to give rise to a paradox: if Parliament can make any law, can it make an Act which limits its own power to make any law in future?
If yes, the sovereignty of future Parliaments can be legally
limited.
If no, then there is a legal limit on Parliament’s power to ‘make or
unmake any law’.
Dicey said ‘no’:‘“It is certain that a Parliament cannot […] bind its successors by the terms of any statute, as to limit the discretion of a future Parliament, and thereby disable the Legislature from entire freedom of action at anyfuture time
DICEYS Descriptive theory
Dicey’s theory is primarily
descriptive:
Dicey aimed to describe the nature and
extent of Parliament’s power as it was.
It does not (primarily) aim to justify
Parliament’s power or say what
Parliament’s power should be.
It should be discarded or revised if it
doesn’t accurately describe Parliament’s
power
A LEGAL doctrine not POLITICAL Doctrine
Dicey’s definition claims that there are no legal limits on
Parliamentary sovereignty.
But Dicey acknowledges there can be non-legal – practical or
political – limits on Parliament:
“the actual exercise of authority by […] Parliament, is bounded or
controlled by two limitations …
1. “The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects […] will disobey or resist his laws …
- “The internal limit […] arises from the nature of the sovereign [: its] character, which is itself moulded by the circumstances under which [it] lives, including […] the moral feelings of the time and the society to which [it] belongs.
THE ORTHODOX UNDERSTANDING
A LEGAL NOT POLITICAL DOCTRINE
Parliamentary Sovereignty (Legal
Doctrine)
Internal Practical/Political Limit
External Practical/Political Limit
THE ORTHODOX UNDERSTANDING
A LEGAL NOT POLITICAL DOCTRINE= the courts agree
Legal Sovereignty
Practical/Political Limit
CHALLENGING ORTHODOXY
One BIG Question:
Are there legal limits on Parliamentary
Sovereignty?
Several Specific Questions:
1. Can Parliament Entrench Legislation?
2. Does the Common Law impose legal limits on Parliamentary
Sovereignty?
3. Did EU Law impose legal limits on Parliamentary Sovereignty?
4. Does the ECHR/HRA 1998 impose legal limits on Parliamentary
Sovereignty?
5. Does Devolution impose legal limit on Parliament Sovereignty
CAN PARLIAMENT ENTRENCH
LEGISLATION?
The paradox: if Parliament can ‘make or unmake any law
whatever’, can it enact law which limits its own ability to ‘make or
unmake any law whatever’ in future?
Dicey argued ‘no’ - Parliament cannot bind its successors
(continuing sovereignty).
Others say ‘yes’ - if Parliament is sovereign, it may limit its future
power to make law by entrenching legislation (manner & form
theory).
We’ll consider this (tricky) issue in these stages:
1. How Parliament changes its own laws: Express and implied
repeal.
2. How Parliament could (in theory) limit its power to change the law
in future
LEGISLATION- HOW DOES Parliament changes its own acts
EXPRESS and IMPLIED REPEAL
Express repeal is where a more recent Act of Parliament states that an earlier Act is repealed. This shows that Parliament cannot (according to this model) bind itself as it can repeal any Act it has created. Implied repeal is where a more recent Act of Parliament contradicts an earlier Act, but it does not expressly repeal the earlier
LEGISLATION
Imagine Parliament wants to pass a new Act and it wants
to restrict future Parliaments’ power to repeal or amend
that Act…
Three ways Parliament could attempt to limit itself:
- Substance: stating that the Act cannot be repealed/amended by a later Act under any circumstances.
- Manner – stating that the Act cannot be repealed/amended by a later Act unless a special process is followed in enacting the later Act.
- Form – stating that the Act cannot be repealed/amended by a later Act unless the later Act adopts a specific form of words (e.g. using express words)
LEGISLATION-Manner of Amendment
European Union Act 2011, s 2
(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—[…]
(b) the treaty is approved by Act of Parliament, and
(c) the referendum condition or the exemption condition is met.
(2)The referendum condition is that—
(a) the Act providing for the approval of the treaty provides that
the provision approving the treaty is not to come into force until a
referendum about whether the treaty should be ratified has
been held throughout the United Kingdom […]
Does this mean a later Act – alone – is insufficient to change
HOW COULD PARLIAMENT LEGALLY LIMIT ITSELF?
Example 2 – Form of Amendment:
An example from another jurisdiction – Canada
Constitution Act 1982, s 33
(1) Parliament or the legislature of a province may expressly
declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding
[incompatibility with human rights].
In other words: if Canadian legislatures want to pass law interfering
with people’s human rights:
They must state that it intends to do so in express words.
They cannot interfere with rights by implication.
LEGISLATION?
HOW COULD PARLIAMENT LEGALLY LIMIT ITSELF?
Two main views:
Continuing Sovereignty Theory says Parliament may not
bind itself in any way.
Manner & Form Theory says Parliament may bind itself in
terms of manner, form, but not substance.
Judicial Consideration
CASE LAW- Ellen Street Estates v Minister of Health [1934] 1 KB 590
FACTS: a 1919 Act and a 1925 Act contained contradictory provisions.
The 1919 Act provided that in case of conflict, its provisions should take precedence over future legislation – i.e. seeking to protect the 1919 Act from implied repeal.
HELD: “The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal.” (Maugham LJ at597)
In other words: An Act cannot limit a later Parliament’s power of implied repeal by requiring that an express form of words be used.
Most Recent Judicial Consideration Case LAW
Jackson v Attorney General [2005] UKHL 56
(1/4)
FACTS
The validity of the Hunting Act 2004 was
challenged. The Act had been passed under
the Parliament Act 1911.
Parliament Act 1911 removed the House of
Lords’ power to reject a Bill passed by the
Commons: after 2 years, the Commons &
Monarch could legislate alone.
Parliament Act 1949 amended the 1911 Act,
reducing the Lords’ delaying power to 1 year
ISSUE:
Have the Parliament Acts created a new
‘manner’ (process) for creating Acts of
Parliament?
Jackson argued ‘no’: legislation under the
Parliament Acts is a form of delegated
legislation.
The Attorney General argued ‘yes’: the
Parliament Acts created a new process for
making Acts of Parliament of the same status
as those passed by Commons, Lords &
HELD:
Acts passed using the Parliament Act 1911 procedure are valid Acts of Parliament of the same status as Acts passed using the ordinary process.
It follows that the Parliament Act 1949 and Hunting Act 2004 are both valid law.
Implication for the debate: Parliament can alter the manner in which legislation is made – at least to make it less difficult to pass future legislation
More Recent Judicial Consideration
Jackson v Attorney General [2005] UKHL 56 (4/4)
Could Parliament make it harder to enact future legislation?
FOR -
Baroness Hale at [163]: STATES
“If the sovereign Parliament can
redefine itself downwards, to remove or modify the requirement for
the consent of the [House of Lords], it may very well be that it can also redefine itself upwards, to require a particular Parliamentary majority or a popular referendum for particular types of Measure”
AGAINST -
Lord Hope at [113]: STATES
“There are no means whereby, even with
the assistance of the most skillful draftsman, [Parliament] can entrench an Act of Parliament. It is impossible for Parliament to enact something which a subsequent statute dealing with the same subject matter cannot repeal.”
HOWEVER= Since both are Obiter Dicta, we will have to wait and find out the
Summary for PARLIAMENTARY 1
The history and orthodox view of Parliamentary
Sovereignty.
One possible challenge to orthodoxy: self-imposed manner
& form limits
