Week 5- Parliamentary sovereignty

Question 1

What is the doctrine of implied repeal and why is it important?

Answer 1

• Where two statutes are concerned with the same area of law, the courts must apply the latter of the two statutes unless the first is a constitutional statute and the second makes no express provision for the abrogation of the first
• the doctrine is important so that the courts adjudicate in a way which is consistent with the current government, rather than allowing parliament to be bound by an earlier statue which it has chosen to abrogate (whether expressly or impliedly)

Question 2

What long-established suggestion about parliaments sovereignty was confirmed in section 18 of the 2011 EU act??

Answer 2

-Section 18 of the EU act 2011 declared that EU law has effect in the UK only by reason of the ECA 1972 or any other UK act. This confirmed the long-established rule based on the dualism of national and international law, by which treaties entered into by the government have effect in national law only when parliament has authorised this. This shows that the ECA 1972, which many suggest threatened PS, was authorised by parliament themselves by enacting the European act into British law.

Question 3

What is Dicey’s simple and orthodox understanding of parliamentary sovereignty?

Answer 3

-“Parliament … has, under the English constitution, the right to make any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament

Question 4

What is held to be by Wade and others the only limitation on parliaments sovereignty when enacting laws?

Answer 4

-The only theoretical limitation to parliaments sovereignty is that it cannot limit its own sovereignty ie by binding a future parliament to an act of parliament.

Question 5

What is legal sovereignty/ manner and form sovereignty?

Answer 5

-Some authors like Heuston recognise that for parliament to be truly sovereign, it should have the legislative power to change its manner and form, by altering the law about itself and the operation of its acts, just the same as the law about anything else

Question 6

What does Wade say about the paramount importance of judicial obedience as a principle of the common law, and the inability of parliament to change the law on judicial obedience (inability to disapply acts of parliament)

Answer 6

“The rule of judicial obedience is in one sense a rule of common law, but in another sense- which applies to no other rule of common law- it is the ultimate political fact upon which the whole system of legislation hangs. Legislation owes its authority to the rule, the rule does not owe its authority to legislation. To say that parliament can change the rule merely because it can change any other rule, is to put the cart before the horse.”

Question 7

What does Heuston say about the manner and form understanding of parliamentary sovereignty??

Answer 7

• Heustons view of sovereignty entails according parliament unfettered power, exercised by ordinary enactment, to alter the “manner and form” required for future legislation.
• He therefore asks the question that why should parliament be able to enact any laws it wishes except for laws regarding the operation of parliament itself?
• The operation of parliament being what parliament consists of and what procedures it must undertake to enact legislation.

Question 8

What does Dicey’s theory of PS suggest about the ECA 1972, and how does it resonate in Allan’s work?

Answer 8

• In theory the ECJ and EU law should never have any overriding authority over our domestic law, and domestic courts should be unrestrained in applying UK statutes, rather than being bound to apply the relevant EU law over the relevant domestic law, to the extent to which these two laws are inconsistent.
• This is argued by Allan, who says “British judges sit to administer the British constitution: they cannot give unconditional allegiance to the EEC, as a superior source of law, unless they are confident with our constitutional commitment to British democracy” , disagreeing with the precedent set by Factortame 2 (explained later).

Question 9

In what ways could the manner and form of parliament be changed according to Barber/ Heuston??

Answer 9

-Current parliaments can use their legislative powers to change the form and manner of parliament; not only was it true that what parliament enacts is law, but now parliament may require referendums or majority votes to change laws (binding future parliaments) rather than just two houses and the royal assent. This means that parliament can require 2/3 majorities for in referendums or votes on bills to be required if they wanted it to.

Question 10

What argument does Barber make with regards to the ‘death’ of orthodox parliamentary sovereignty?

Answer 10

• PS was a legal rule which existed in the conditions of the courts inability to disapply an act of parliament coupled with the rule of implied repeal, and therefore parliament could effectively not impose limits on themselves.
• The enactment of the ECA 1972 began the binding of future parliaments, in that there were limits imposed on the applicability of acts of parliament, and the death of orthodox sovereignty, as it gave primacy to EU law over our domestic law (when our law could not be construed as compatible with EU law).
• Parliament bound itself from 1972 and would remain bound until the repeal of the ECA 1972, when domestic courts would once again be unable to disapply acts of parliament in favour of EU law.
• It took until Factortame and the MSA 1988 to illustrate the death of PS, when the MSA could not be construed as compatible with EU law and was temporarily suspended as per the judgement of the ECJ

Question 11

How did judges attempt to justify the outcome of Factortame 1?

Answer 11

Statutory construction- The Lords argued that PS would be upheld and that the ECA 1972 helped to clarify the meaning of the MSA 1988, which would allow compatibility between the two statues rather than the conflict and dis-application by domestic courts of the later act (departing from implied repeal) authorised by the ECJ

Question 12

What was the facts and significance of Factortame 2

Answer 12

Facts- the domestic courts introduced a temporary injunction and suspension of the MSA 1988 because it conflicted with the ECA 1972, authorised by the ECJ.

Significance- Lord Bridges powerful judgement dictated that whatever limits to parliaments sovereignty existed were voluntarily accepted by parliament through the enactment of the ECA.

• ECJ Precedence showed limitations to sovereignty were possible even before the UK joined the EEC and therefore there could be no shock as to the questionability of parliament sovereignty.
• Statutory construction as argued in Factortame 1 would give unreasonable extended meaning to the MSA 1988 when in reality it was incompatible with the respective EU law, and therefore UK law became subordinate to EU law here, with the courts dis-applying a UK statute.

Question 13

What do Lord Mance and Neuburger say in HS2 with regards to parliamentary sovereignty?

Answer 13

-Constitutional instruments, as established in Thoburn, such as the bill of rights 1689, magna carta, ECA 1972, HRA 1998 and CRA 2005, fit alongside constitutional principles which don’t exist as statues (PS for example) and in enacting these constitutional laws, parliament could not have been taken to abrogate these long established principles. EU law CANNOT take primacy over domestic law in every case without defying pillars of our constitution.

Question 14

What did the parliament act 1911 do?

Answer 14

• The act ended the power of the Lords to veto any public bill in parliament introduced in the commons, other than a bill containing any provision to extend the maximum duration of parliament beyond 5 years
• -Money bills in particular can be receive royal assent without the consent of the Lords, provided it was sent at least a month before the end of session and is not amended by the Lords within the calendar month.

Question 15

What did the Parliament act 1949 do?

Answer 15

-The 1949 became in essence bound to the 1911 by amending the wording of the 1911 act, to reduce the delay to one year between the second reading of the bill and the royal assent.

Question 16

Jackson v AG facts and significance??

Answer 16

Facts- Lords attempted to block the passage of hunting bans which bypassed the Lords. They said that the passing of the parliament act 1949, which reduced the delay between second reading and royal assent to one year, had been done under the delegation of legislative control to the commons rather than to parliament, and therefore subsequent legislation passed under the provisions of the reduced delay was invalid.

Significance- Lord Nicholls recognised that the 1911 act had created a new mechanism by which primary legislation could be created (ie solely by the commons despite having the force of an act of parliament), rather than rejecting all legislation which had been enacted under the provisions of the amended 1911 act (ie one year delay between second reading and royal assent, and by-passing the Lords.)

Question 17

What does Jackson say about the ability of courts to review how legislation is enacted?

Answer 17

-The courts are not normally allowed to review the mechanism by which acts of parliament were enacted, but this was a case of statutory interpretation of the parliament acts, rather than parliamentary proceedings (which would be protected by parliamentary privileges) because the 1911 act dictated that it was a source of primary legislation by the commons rather than parliament (as Lords were bypassed).

Question 18

How does Vaughan describe statutory construction in Factortame 1?

Answer 18

In Factortame 1 Vaughan is arguing that the second 1988 act was not dis-applied, it merely relied upon the earlier act to construe its true meaning and effect, and that this process was known by, and should be expected by the UK to take place when they joined and enacted the EEC 1972.

Question 19

What does Wade call the outcome on parliamentary sovereignty in Factortame 2 and why?

Answer 19

• A revolution
• Factortame 1 did not seemingly threaten PS because the later act was still applied (MSA 1988), just in a way which was understood as consistent with the relevant EU version of the law, given effect by way of the ECA 1972 (earlier act)
• Factortame 2 was revolutionary in that they created the word ‘dis-apply’ to mean that the MSA 1988 was explicitly ignored and suspended in favour of an earlier statute introduced with the ECA 1972- the 1972 parliament had fettered the 1988 parliament through the ECA 1972, something which should have been impossible under the orthodox understanding of PS.

Question 20

What does section 2(4) of ECA 1972 say?

Answer 20

-S2(4) =the subsection is both retrospective and prospective, in that any UK law should be interpreted and have effect in the way that upholds the primacy of EU law

Question 21

What does section 2(1) of ECA 1972 say?

Answer 21

-S2(1)=”all rights, powers, liabilities, obligations and restrictions…arising under the treaties…are without further enactment to be given legal effect or used in the UK shall be recognised and available in law”

Question 22

Pickin v British railways 1974 facts and significance?

Can courts challenge the validity of laws?

Answer 22

Facts- The claimant argued that the abandoned railway land was to become his as he owned the adjoining land. The railway board had been massively influential in the enactment of the british railways act 1968, which impliedly repealed the earlier act. The applicant challenged that this was not done lawfully, as the board had misled parliament, who went on to pass the 1968 bill.

Significance- The courts should not have the jurisdiction to challenge the way in which a bill becomes statute. Any misleading of parliament by an external party (in this case the railway board) is a matter for parliament only
-The court apply acts of parliament and construe them through the meaning of the words used; it is of no concern to them how they came to be.

Question 23

What does Pickin and Jackson say about courts challenging the validity of laws?

Answer 23

Pickin is the earlier case and says that courts cannot challenge the validity of acts of parliament and how they came to be.

• However, in Jackson, the law concerned was passed under the mechanism of the amended 1911 parliament act and was an act of the commons rather than parliament, because the parliament acts had dictated that the commons could bypass the Lords, subject to the provisions of the parliament act.
• Therefore whilst it was primary legislation, it was not enacted via parliament but via the commons instead and therefore was not subject to parliament privilege in the same way that an act of Parliament would be.

Question 24

What does the EU withdrawal act attempt to do??

Answer 24

Explicitly repeal the constitutional statute of the ECA 1972.

Question 25

What does the EU withdrawal act say about the continuation of EU law?

Answer 25

S2 continues the authority of UK enacted EU law as part of our domestic law before exit day
S3: direct EU legislation that forms part of our domestic law before exit day will continue to form part of our domestic law
S4: rights, powers, liabilities, obligations, restrictions, remedies and procedures recognised in the ECA 1972 sections 2(1) will continue as part of our domestic law
S5 the principle or supremacy of EU law does not apply to laws made after or on exit day

Question 26

What does the EU withdrawal act say about ECJ precedence and the way in which our domestic courts are bound following withdrawal?

Answer 26

S6 courts are not bound by any decision made by the ECJ on or after exit day and must not refer questions to the ECJ after exit day. The SC are not bound to EU case law, and in departing from EU case law must go through the procedure and reasoning that it would to depart from its own case law.

Question 27

What are Henry VIII clauses?

Answer 27

-Henry VIII clauses allow people other than parliament to amend and repeal acts of parliament, ie ministers in leaving the EU.

Question 28

Why might parliamentary sovereignty be called a doctrine rather than a principle?

Answer 28

-Doctrine v principle; doctrine referred to because it’s a master rule of our legal system, the beginning of legal reasoning and is foundational, but calling it a principle may understate its significance, as a principle it may be too frequently compared to other principles rather than respecting its strong roots in the common law.

Question 29

What does Miller/ Cherry 2 regard our constitution to be, in relation to the ‘big C’ understanding?

Answer 29

-Cherry 2 paragraph 39- a Constitution with a capital C, not common law, statute, or a matter of fact. It is all 3, plus conventions and practices which make our pragmatic constitution

Question 30

What convention existed following ECA to ensure compatibility between domestic and EU law, and when did this break down?

Answer 30

Convention emerged that parliament would not legislate in conflict with EU law, this ended with the enactment of the MSA 1988 which was incompatible with relevant EU law. The convention worked from ECA 1972 up until 1988 but 1988 and Factortame illustrated the death of orthodox PS which was voluntarily accepted in 1972.

Question 31

AXA v Lord advocate facts and significance?

Answer 31

Facts–Were acts of devolved institutions subject to judicial review?; AXA claimed that the effect of the Scottish act would expose them to a substantial number of claims (Asbestos related injuries being actionable). It was contended whether the area was within the devolved competence of Scotland.

Significance- -Devolved legislatures are subject to judicial review of their acts, and have constraints placed upon their legislative powers conferred by WM parliament. Section 29(1) declares that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament
-They are subject to judicial review but not on every ground; their acts were unique and therefore the approach to WMP acts would need amending to fit the new acts of SP. Cases brought for review under bad faith or improper motive may be subject to review, as they are not truly aspects of irrationality, but irrationality and procedural irregularity are not grounds for reviewing ASP

Question 32

Benkharbouche v Embassy of SudanJanah v Libya facts and significance

Answer 32

Facts- Embassy workers litigated against their employers for unfair treatment at the work place, inconsistent with EU law.

Significance- the courts in this instance had to disapply UK statutory provisions to the extent that they were incompatible with EU law, as it was deemed that these claimants claims fell within the scope of EU law and were in clear breach of article 47 of the EU charter, along with article 6 of the ECHR. This upholds the supremacy of EU law over national law, even having the power to horizontally apply the EU charter in certain cases when the charter has not been enacted by parliament into domestic laws.

Question 33

What is the issue of devolved competences within EU withdrawal?

Answer 33

• Areas that haven’t been devolved to the relevant UK institutions that have instead been covered by EU legislation will now be legislated on by WM parliament, despite the Sewel convention and the operation of the reserved powers model of which all 3 devolved territories operate on
• Putting the Sewel convention in ‘statutory footing’ didn’t meant WM was seeking to convert a political convention to be enforced by the courts, who remain ‘neither the parents nor enforcers of conventions, merely observers”

Question 34

Who talks about the ability of devolved territories to amend, repeal or modify provisions and the effect on Westminsters Sovereignty and what do they say?

Answer 34

Elliot

• The ability of devolved institutions to amend, repeal or modify provisions of Westminster statute on areas of devolved competences do not detract from WM Sovereignty for the simple fact that WM stipulated these arrangements.
• “It is no more a reflection of the authority of UK parliament itself as the author of those legislatures powers”.

Question 35

How could the recent devolution legislation possibly threaten PS according to Elliot?

Answer 35

• Elliot suggests that recent legislative changes to the devolution settlements, namely the fact that Welsh and Scottish devolution legislation has dictated that the arrangements are to remain permanent unless there is a referendum contrary to the devolution arrangements.
• This would resonate more closely with the manner and form argument, that parliament can bind its successors through the requirement of new/ extra steps to validate laws (or their abrogation)
• Therefore, is Westminster still sovereign if it cannot repeal the devolution settlements without referendum? The actual permanence legislation itself can still be repealed, but in the absence of a change to statutes, there appears to be limits to parliament in a similar fashion to those imposed by the ECA; the actual legislation can be expressly repealed ( both constitutional statutes) but the operation of the statutes in the mean time impose considerable limits on the sovereignty of parliament.

Question 36

What is the significance of the sewel convention receiving statutory recognition, according to Elliot?

Answer 36

-The sewel convention, and its current statutory backing, is indicative of making it a permanent part of our constitutional and devolution arrangements; however, it has done no more than to recognise it for what it is, namely a convention. It is not directly enforceable by the court, it may be argued that it is a necessary condition for Westminster to respect the autonomy of devolved regions but to act against it cannot be said to be unlawful, it is a well-recognised rule, but it is not law. Its previous use in devolution matters, including in enacting further devolution bills, may be to show its ability to moderate the relationship between Westminster and the devolved institutions, governing a strong sense of respect, but Westminster is not bound in law to apply it every instance eg Miller.

Question 37

Why does EU withdrawal fail to restore parliamentary sovereignty?

Answer 37

• Upon EU withdrawal, the absolutist view of PS envisioned by Dicey and resonating in Craig’s work is not restored.
• The creation of constitutional statutes, which impose a statutory limit on parliament by rejecting the operation of implied repeal following Thoburn is maintained; the ECA 1972 was only one of many constitutional statutes, and other statutes such as the bill of rights, HRA, devolution settlements, are no longer subject to implied repeal and have all effectively bound parliament in the way that the ECA have.
• it is not necessarily a bad thing that these constitutional statues exist, as they play important roles as the corner stones of our constitution, but regarding parliamentary sovereignty, they do not allow for reconciliation with true PS, which died with the ECA 1972 and came to light in factor tame.

Question 38

How does the ECA actually provide for the primacy of EU law in our domestic landscape?

Answer 38

-The ECA provides a gateway for the provisions of EU law to obtain legislative supremacy over domestic law, to the extent to which domestic law is inconsistent with EU law. The ECA gives effect to all EU law in the UK, it does not create new law, but simply provides a gateway for existing EU law into our jurisdiction.