Parliamentary Sovereignty PDF

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Parlimentary Sovereignty...

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Parlimentary Sovreignty ‘What the parliament enacts is law’ Parliament supreme law making body PS is important because we do not have a written constitution, so acts of Parliament are the most important source of law The parliament can legally pass any law as the courts do not have the constitutional power to invalidate laws Other types of sovereignty: Political Sovereignty

Legal Sovereignty

Rests with the people of the country as the people elect

Is about legislative powers of Parliament

Parliament is accountable to the people at every general election

Concerns the relationship between Parliament and the courts

Some people think supremacy is a better than sovereignty- but sovereignty is still mainly used Traditional doctrine of parliamentary sovereignty developed as the power of the Monarch receded Clearly recognised by the courts in 19th century (a judge made concept) Significance of the UKs uncodified constitution- why is Parliament Supreme?

Evolution of Parliamentary Sovereignty Sir Edward Coke, Chief Justice of the Kings bench: These helped bring about Parliamentary Sovereignty 1607: Case of Prohibitions- He challenged the powers of the King, said King should not sit in the court of law or interfere with the administration of justice, it is the job of the judges not his. 1610- Case of Proclamations- said the King should never rule by proclamation, only parliament can make laws 1610- Dr Bonham's Case- he was a practitioner who wasn't licensed but continued practising medicine, so eventually ended up in court. Lord Justice Cook said something fundamental in this case: if an act of Parliament is against common rights and reason or morally deficient, then the courts can invalidate it. This was a rare case as historically and to this day courts do not invalidate acts in the UK. Acts of Parliament are supreme because of Parliamentary Sovereignty. t

The case was notable for the manner in which it explained that ‘when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void’. 1642- 1651- English Civil War- MP’s questioned the King's authority which he didn't like so he turned up to Parliament and Parliament refused to put the MPs on trial, thus the civil war began. After the war the power of the monarch diminished and the power of Parliament increased. 1688- Glorious Revolution and 1989 Bill of Rights- represent agreement between the two parties to the effect that Parliament would be sovereign. During the 17th century, there were tensions between the Crown and Parliament, with both institutions seeking to establish themselves as the seat of sovereign power. The courts were often called upon to decide the validity of laws passed by the Crown and by Parliament. The Bill of Rights is significant because during the Glorious Revolution, William and Mary of Orange were invited to take the throne of England (from Mary’s father, James II) on condition that they accept what came to be set out in the Bill of Rights. This document had the effect of ensuring Parliament’s superiority over the Crown, thereby establishing Parliament as the sovereign power.

A.V Dicey Parliament has ‘under the English Constitution, the right to make or unmake any law whatever; and further… no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament'

The theory of parliamentary sovereignty according to AV Dicey 1) Parliament is the supreme law making body and may enact laws on any subject matter (positive limb) 2) No person or body, including a court of law, may question the validity of parliamentary enactments (negative limb) 3) No parliament may be bound by a predecessor or bind a successor (the theory of continuing sovereignty) 1. Parliament is the supreme law making body and may exact laws on any subject matter (positive limb) There has to be limits on law making powers or else Parliament could pass ANY lawSir Lesley Stephan questioned this by asking can Parliament make the law that all blue eyed babies should be killed, and would this law be regarded as legal? In the theory of legal sovereignty Parliament can pass this law because the Parliament is the supreme law making body. But within political sovereignty the MPs would like to be re-elected so they would not dare pass such a law as it's against human rights. Sp in theory Parliament can pass this law but in reality it is unlikely. Sir Ivor Jennings asked if Parliament could ban smoking on the streets of Paris? According to

Dicey, yes. They can ban it in theory but the law would be unenforceable in reality because we cannot enforce this law in France as not international law and is an independent country. In theory they can make laws on any subject but in reality highly unlikely will make laws on controversial topics as people of the land would not allow that. 3. No Parliament may be bound by a predecessor or bind a successor (the theory of continuing sovereignty) This was critiqued extensively because: Parliament 1911 reasserted the primacy of the house of commons over the House of Lords, and enabled the House of Commons to pass laws without the go ahead from the House of Lords. Once this reform happened the 1911 statute changed the composition of subsequent parliaments, and it meant it did in fact change its successor. So can be argued the 1911 Parliament change did affect and bind its successors, and a parliament can reverse this change but only if it has something better to offer Other statutes that impose a historical responsibility in subsequent Parliaments: - Act of Union with England 1707 - Act of Union with Scotland 1706 These formed the UK with Wales already joined. 1707 bound each successive Parliament - Representation of People Acts Blackburn v Attorney- General (1971) The Jackson case concerned a challenge to the Hunting Act 2004 on the basis of an argument that suggested that the Parliament Act 1949 was invalid. The crux of this argument rested on the view that legislation passed pursuant to the procedure set out in the Parliament Act 1911 (whereby legislation can be enacted without the House of Lords' consent) was delegated, not primary, legislation. The 1949 Act had been passed pursuant to the 1911 Act's procedure, serving to amend its provisions. The Hunting Act 2004 was passed using this amended procedure set out in the 1949 Act. Lord Denning; ‘can anyone imagine that Parliament could or would reverse that statute? Take the acts which have granted independence to the dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away’

Case laws showing domestic courts gave priority to acts of Parliament Cheney v Conn 1968 Cheney challenged his tax assessment on the basis of international law (because his taxes

would go towards implementing and creating new nuclear weapons). The high court held that if there was a conflict between international law and statute, and the statutory provisions were clear and unambiguous, the statute would prevail (as Parliament supreme law making body). Edinburgh and Dalkeith Railway Co v Wauchope (1842) Wauchope argued that the statute should be disapplied because the standard procedure was not followed. The court held; if an act passed both Houses of Parliament and received Royal Assent, no court of justice can inquire into the manner in which it was introduced to parliament. Madzimbamuto v Lardner Burke 1969 Per Lord Reid; ‘it is often said that it would be unconstitutional for the United kingdom Parliament to do certain things, meaning that the moral, political, and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts could not hold the act of parliament invalid’. British Railways Board v Pickin [1974] Pickin claimed that the British Railway Board fraudulently misled Parliament when it passed a private Act of 1968, which abolished a rule that if a railway line were abandoned, the land would vest in the owners of the adjoining land. Pickin wanted the court to say the newer act was ineffective because of the way in which it was passed. The House of Lords held that the validity of an Act could not be lawfully attacked by claiming that Parliament was misled (either by fraud or otherwise) during the course of the enacting of a piece of legislation. The courts should not interfere with or adjudicate how Parliament exercised its function when making its decision on a piece of legislation.

Implied repeal Where a later Act of Parliament (same subject matter) conflicted with an earlier one, the new act takes precedence. It ensures Parliament is not bound by its predecessors and does not bind its successors. The earlier Act is taken to be impliedly repealed by the later one to the extent necessary to resolve any inconsistency between them. Because all are acts of parliament, whether it is old or new, it can be repealed for the older or newer one to take precedence= parliament is not bound by previous parliament neither can it bind subsequent parliaments Ellen Street Estates Ltd v Minister for Health Along with the preceding case of Vauxhall Estates v Liverpool Corporation, the Ellen Street Estates case provides authority for the rule that where two pieces of legislation on the same issue conflict with or contradict one another, the more recent is taken to have impliedly repealed the older Act (or part of it) Entrenchment- the process of making a law harder to repeal, thereby protecting it from the

ordinary legislative process and securing the contents of that law from easy repeal or alteration....