Challenges to Parliamentary Sovereignty - Manner and Form Theory and the Acts of Union UK Constitutional Law Lecture notes PDF

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Challenges to Parliamentary Sovereignty - Manner and Form Theory and the Acts of Union UK Constitutional Law Lecture 11 notes...

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Lecture 11- Challenges to Parliamentary SovereigntyManner and Form Theory and the Acts of Union Introduction This lecture considers 2 challenges to the accuracy of Dicey’s account of parliamentary sovereignty as the fundamental rule of the constitution.

Manner and Form Theory Is known as the ‘new’ view of parliamentary sovereignty. • It takes issue with Dicey’s claim that Parliament is unable to bind its successors. It is more of a modification than a complete rejection of the Dicean view of sovereignty.

Continuing VS Self-Embracing Sovereignty • •

Agrees there are no limits on the legislation that parliament has the power to enact. Also agrees the courts don’t have the power to strike down or invalidate acts of parliament.

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Disputes Dicey’s claim that the one thing parliament cannot do is bind its successors (entrench legislation). o Dicey said this was something parliament could not do because sovereignty was continuing so could not be bound by previous parliaments. o For Manner and Form theorists, sovereignty is not continuing but is self-embracing.

Self-embracing Sovereignty includes the power to redefine itself – to change what counts as an Act of Parliament. • Can generally legislate to remove the need for the House of Lords to consent to Acts of Parliament. o Eg; Parliament Acts provide alternative means for enacting primary legislation. o SO parliament may be able to get some entrenchment by specifying that a specific procedure must be used (partial entrenchment as it just makes it more difficult to be changed).

Manner and Form Entrenchment – UK Constitutional Law UK Parliament does sometimes enact manner and form provisions • These are provisions to limit the manner or form in which its own future legislation must be passed. HR Act S3(1) 1998: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” • This appears to achieve an entrenchment of form of Convention rights insofar as Parliament must adopt particularly clear words if it wishes to enact legislation which is incompatible with those rights. Some other statutes create procedural entrenchments through the requirement to hold a referendum before certain legal changes can be made. Eg; S1(1) of the Northern Ireland Act 1998 provides that: “Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held...”

Are manner and form provisions binding? •

Could a court set aside a (purported) Act not passed in the correct manner and form, or could Parliament simply ignore or repeal the manner and form provision by passing an ordinary statute?

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Rules of interpretation such as s.3(1) HRA are effective (e.g., R v A [2002] 1 AC 45), but questionable whether these really count as manner and form provisions.

Commonwealth cases upholding special procedural requirements (Attorney-General for New South Wales v Trethowan [1932] AC 526; Harris v Minister of the Interior 1952 (2) SA 428; Bribery Commissioner v Ranasinghe [1965] AC 172), but all involved subordinate rather than sovereign legislatures •

Obiter dicta by Lord Steyn and Lady Hale in Jackson v Attorney General, but cf Lord Hope o Said matters could only be politically binding and not legally binding.

Lady Hale: “If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, 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”. Lord Hope: “There are no means by 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.”

Acts of Union as Fundamental Law Was Parliament Born Unfree? A second challenge to the Diceyan version of sovereignty questions the claim that the sovereignty rule is in fact the fundamental rule of the constitution, and hence the idea that the UK Parliament has unlimited legislative competence. Argument is that the UK is the product of previously independent states. • UK formed by Scotland 1707, Ireland in 1800. SO as these Acts of Union were foundational legal instruments for a new state SO (the argument is) that they amount to a partial constitution for the new state. • SO the UK Parliament only has the legislative authority granted to it by these foundational documents. BUT Dicey and others say that the Acts were just the means by which Scotland and Ireland were incorporated into the larger English state. • With this view, powers from Parliament pre-date rather than derive from the Acts of Union SO are not limited by their terms.

UK parliament born unfree.

The Union and UK Constitutional Law UK is a union state rather than a unitary state. • Asymmetrical system of government. • Based on a principle of consent....