Sovereignty of Parliament (L7/8)

Question 1

What is the Diceyan orthodoxy?

Answer 1

Parliament may make or unmake any law whatever.
No person or body may override or set aside Parliament’s legislation.
(AV Dicey, The Law of the Constitution (1886), pp39-40).

Question 2

What does the sovereignty of Parliament ACTUALLY mean?

Answer 2

It is not about sovereignty: it’s about legal supremacy.
It is not about Parliament: it’s about statute.
It’s ACTS OF PARLIAMENT that have legal supremacy.

Question 3

What is the Scots law approach to Parliamentary sovereignty?

Answer 3

Historically the same as English law.
- Edinburgh and Dalkeith Railway v Wauchope (1842).

Modern cases suggest sovereignty lies with the people, not Parliament.
- MacCormick v Lord Advocate 1953 SC 396.
- Lord Cooper, said: “the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law…”.

Question 4

Diceyan orthodoxy in the courts: Cheney v Conn [1968] 1 All ER 779.

Answer 4

Statute prevails over treaties binding on the UK in international law.

Question 5

Diceyan orthodoxy in the courts: British Railways Board v Pickin [1974] AC 765.

Answer 5

Lord Reid: “the idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution…”.

INCOMPATIBLE WITH LORD COOPER IN MACCORMICK.
- Pickin is 20 years after.
- In the HoL so a higher court.
- This case trumps Pickins.

Question 6

Diceyan orthodoxy in the courts: Manuel v Attorney General [1983] Ch 77.

Answer 6

Sir Robert Megarry, VC: “a contention that an Act of Parliament is ultra vires is bold in the extreme. It is contrary to one of the fundamentals of the British Constitution…”.

Question 7

Can Parliament bind its successors?

Answer 7

Parliament cannot bind its successors as to the content of the law.
Each and every Parliament enjoys the right or unmake any law.

But what if Parliament were to provide as follows:
- “this enactment may not be repealed or amended unless by two-thirds vote in the HoC” or;
- “this enactment may not be repealed or amended unless the repeal or amendment is supported by popular vote in a referendum”.

Question 8

What is the ‘new view’?

Answer 8

Anyone who disagrees with Dicey’s proposition - believing Parliament CAN bind its successors.

Question 8

What is the new view manner and form argument?

Answer 8

Ellen Street Estates v Minister for Health [1934] 1 KB 590.
- Dismissed by appeal court, which embraced the doctrine of implied repeal.

Jackson v Attorney General [2005] UKHL 56.
- Some judges appeared to support it, albeit obiter.

Scotland Act 1998, s. 63A:
“the Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements … the[y] are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.

Question 9

What is the real constraint on Westminster?

Answer 9

The Statute of Westminster 1931, s4.
- Terminated Parliament’s ability to legislate for a Dominion of the British Empire (such as Canada) without the request and consent of that Dominion.

Could Parliament repeal s4 and legislate for Canada once again?
Lord Sankey: “as a matter of abstract law”, yes.
“But that is theory and has no relation to realities”.
- British Coal Corporation v R [1935] AC 500.

Question 10

EU law and the principle of supremacy.

Answer 10

Van Gend en Loos [1963] ECR 1.
Costa v ENEL [1964] ECR 585.
European Communities Act 1972, ss 2(1), 2(4), 3(1).

Question 11

The Factortame saga.

Answer 11

Merchant Shipping Act 1988.

R v Secretary of State, ex parte Factortame [1990] 2 AC 85.
- Mandatory interim injunction against the Crown.

R v Secretary of State, ex parte Factortame (No 2) [1992] 1 AC 603.
- Granted an order requiring the Sec of State to suspend the application of the Act - a court order effectively disapplying the statute.

Question 12

What was the long term aftermath of Factortame?

Answer 12

Thoburn v Sunderland CC [2003] QB 151.
- Suggesting that ECA 1972 could not be impliedly repealed - a partial form of entrenchment recognising it as some sort of “constitutional statute”?

European Union Act 2011, s18 [now repealed].
- Reasserting the principle that EU law takes effect in the UK only because Parliament has so decreed (in the ECA).

European Union (Withdrawal Agreement) Act 2020, s38.
- “It is recognised that the Parliament of the United Kingdom is sovereign”.

Question 13

What is a relevant case relating to parliamentary sovereignty in terms of European human rights law?

Answer 13

DPP v Ziegler [2021] UKSC 23.
- Relevant: HRA ss3 & 4.

Question 14

What is common law radicalism?

Answer 14

Common law radicals believe that the entire constitution, including the doctrine of the sovereignty of Parliament, is based on the common law

Question 15

What are relevant cases to look at for common law radicalism?

Answer 15

R (Evans) v Attorney General [2015] UKSC 21.
- Who is the guardian of the public interest?

R (UNISON) v Lord Chancellor [2017] UKSC 51.
- Statute read down to limit ministerial powers affecting access to justice.

Question 16

What did Lord Steyn have to say in Jackson v Attorney General [2005] UKHL 56?

Answer 16

“We do not in the UK have an uncontrolled constitution… In the European context the second Factortame decision made that clear. The settlement contained in the Scotland Act 1998 also points to a divided sovereignty…
This classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen as out of place in the modern UK. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.”