Parliamentary sovereignty revision notes PDF

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Topic 1Parliamentary sovereignty revision notes1) Express and Implied repeal/Entrenchment Dicey’s orthodox theory: a) Positive aspect – Parliament can legislate on any subject matter whatsoever as its sees fit, can make or unmake any laws and it is not bound by its predecessors nor binds its succes...

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Topic 1 Parliamentary sovereignty revision notes

1) Express and Implied repeal/Entrenchment 

Dicey’s orthodox theory: a) Positive aspect – Parliament can legislate on any subject matter whatsoever as its sees fit, can make or unmake any laws and it is not bound by its predecessors nor binds its successors; parliamentary enactment must be obeyed by the courts; there is no law which Parl. cannot change b) Negative aspect – there is no body which can override an Act of Parliament and declare it invalid - Confirmed by Lord Reid in **Madzimbamuto -> it is often said that it would be unconstitutional, for moral or political reasons, for Parliament to do certain things...However, that does not mean that Parliament does not have the right (or power) to do such things....If Parliament chooses to do so, the courts cannot hold its Acts invalid. - Dicey argued Parliament’s authority to be not only unlimited, but also illimitable, for attempts to bind future Parliament would be unsuccessful.

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Parliamentary sovereignty – a merely legal conception/not a political one - It is the dominant characteristic of political institutions from a legal point of view - It should be distinguished from political considerations, as it is not concerned with the politics of the making of legislation, or with political dominance in the state. - Legal authority and political realities should not be confused – Dicey recognised this. Parliamentary sovereignty denotes only the absence of legal limitations, not the absence of all limitations

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Is there a limitation on the laws that Parliament may pass? - Dicey noted there was one -> that ‘Parliament cannot bind its successors or be bound by its predecessor; i.e. ‘it cannot detract from its own continuing sovereignty’ - The judiciary also have suggested there are limits on Parliamentary legislative power. Lord Steyn in Jackson v A- G (2005) obiter noted that, owing to the fact that parliamentary sovereignty was a common law construct, ‘it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In 1

exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the HL or the new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish’ – so courts have the right to assume that Parliament did not intend to act unconstitutionally? 

Enrolled bill rule – Pickin - As long as the Act, whether private or public, has been passed through the proper procedure (both Houses + the Royal Assent), the courts will not have the power to disregard it or to question and inquire into the manner in which it was introduced into Parliament. They stick to their role of interpreting legislation. - Also consider Jackson – confirms that the courts may define what is a valid Act of Parliament and that the definition may encompass Acts passed by consent of the Lords and Commons, or the Commons alone. There was ‘no constitutional principle of statutory construction which might prevent a legislative altering its own constitution by enacting alterations’.

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Express and Implied Repeal - Dicey: on occasions where language has been embodied in a statute which purported that a particular statute could not repealed or altered by the future Parliament, the endeavour is bound to end in failure. Each Parliament retains full sovereign power to pass legislation as it sees fit; doctrines of express and implied repeal ensure that it possible - Express repeal – a later Act expressly states that it repeals the provisions of the earlier Act - Implied repeal – a later Act does not state that it expressly repeals the earlier Act, however, its provisions clash on the same subject matter with an earlier Act – the courts will always give primacy to the later intention of Parliament and the provisions of the later Act will prevail, in so far as they are inconsistent with the earlier Act. - **Vauxhall Estates confirmed by Ellen Estates -> in the latter case Maugham LJ confirmed that the legislature cannot bind itself as to the form of subsequent legislation – it is impossible for Parliament to enact that in a subsequent legislation dealing with the same subject matter there can be no implied repeal. Effect must always be given to the latest intentions of Parliament.

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Entrenchment as to the subject matter - Could be problematic; consider something like a Bill of Rights which encompasses constitutional rights of persons – Parliament could repeal that expressly or impliedly at a later stage; no entrenchment in theory. Consider HRA 1998 – it has fundamental rights encompassed, but it is not entrenched, at least not legally. Even not politically, since conservative and labour have both proposed its repeal. - It’s often argued that, owing to their content and fundamental importance, Acts of Union of 1706 and of 1800 cannot be repealed and have special status; i.e. are legally entrenched against repeal – however, this is not entirely true in the view of whole devolution theory; maybe except for Northern Ireland

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Political entrenchment - Although, according to Dicey, legislation cannot be legally entrenched and protected from repeal, nevertheless, it may be the case that certain Acts of Parl. become politically entrenched (due to their political importance and content) in the sense that Parliament may lack the political will (e.g. support of electorate) to repeal them Example: HRA 1998; Scotland Act 1998 (established Scottish Parliament in Edinburgh)

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Entrenchment as to manner and form of subsequent legislation a) Dicey says not possible, as Parliament does not bind its successors and is not bound by its predecessors b) Jennings argues that Parliament can limit its successors as to manner and form, because the courts must accept as law anything that was made in a proper legal form and Parliament can change that form. The manner and form is for the time being provided either by common law or by Parliament Acts 1911. But Parliament may, if it pleases, provide another manner and form. ‘A rule expressed by King in Parliament will be recognised by the courts, including a rule which alters this rule itself’. For example, Parliament can enact that future legislation repealing a previous Act should be passed by a referendum. - Jennings cites Trethowan as an example of a legal sovereign being able to limit its sovereign powers – the sovereign can impose legal limitations upon itself because it can alter the rules as to what is a valid legislation. Rejects the argument that Trethowan cannot be equally applied to Westminster Parliament – the fact that it concerned New South Wales legislature does not make a difference. Rejects Dicey’s distinction between the sovereign and subordinate legislatures in so far as legislative supremacy is concerned. 3

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c) Wade disagrees with Jennings and argues that Threthowan was a case of ultra vires under the Constitutional Laws Validity Act; New South Wales was never sovereign and cannot thus be compared to Westminster Parliament. Rejects Jennings’ reasoning and does not believe that a rule of common law which says that the courts will enforce statutes can itself be altered by a statute. Believes that this rule is an ultimate political fact. It is the law simply because it is the law. It is beyond the reach of a statute, because it is in itself the source of authority of statute. This ultimate political fact can only be changed by a revolution. Trethowan is different in that a superior legal authority was involved. It cannot be applied equally well to Westminster Parliament. UK law is a continuously sovereign legislature, which cannot bind its successors as to manner and form; to suggest the contrary is to assume a revolution, in which the courts must be taken to have abandoned their loyalty to the legislature. Consider **British Coal Corporation -> Lord Sankey “It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation it thought fit extending to Canada remains in theory unimpaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s4 of the Statute. But that is in theory and has no relation to realities.” – note that s4 provides that no act of UK Parliament shall extend to a Dominion unless the Act expressly declares that the Dominion has requested and consented to it. This was an attempt to control the form of later legislation and limit its effect unless it contains a certain form of words.

The redefinition theory of sovereignty (a variant of ‘manner and form’ argument) - In general an Act is passed by a combination of all of the following: a) The House of Commons b) The House of Lords c) The monarch (in the form of the Royal Assent) - Under redefinition theory, however, it is possible for legislation to, in effect, be entrenched by specifying an additional element to the above constituent parts in order to amend or repeal specified (important) legislation. In this way Parliament is redefining itself in relation to certain legislation, making it more difficult to repeal, as an extra element has been added to the legislative process. This extra element will typically be the support of people in a referendum. - Parliament has already redefined how it passes legislation – consent of House of Lords is no longer required (Parliament Acts of 1911) and all that is required is for 4

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the Speaker of Commons to indicate that a Bill has passed under the Parliament Acts. - Accordingly, why should it not be possible to add an extra element, like consent of the people in a referendum, in? Consider the following case: **Manuel v Attorney General (1983) – the court stated obiter (making it clear that they were not purporting to decide the issue) that it was content to assume that the following proposition was correct: ‘that Parliament can effectively tie the hands of its successors, if it passes a statute which provides that any future legislation on a specified subject shall be enacted only with certain specified consents’ (Slade LJ) - Ellis states that this ‘contains a tiny judicial hint that English courts might consider a future UK Parliament bound by a stipulation as to manner and form, although under what conditions this might be is difficult to predict’. R (Jackson and Others) v Attorney General (2005). The case concerned the 1911 Parliament Act (as amended in 1949) which allows legislation to be passed without the consent of HoL. S2(1) of the 1911 Act, however, expressly excludes from its ambit a Bill purporting to extend the life of Parliament. Accordingly, legislation proposing to extend the life of Parliament required the express consent of the HoL. In the Jackson case, according to Bradley and Ewing, their Lordships were of opinion (obiter) that: a) legislation purporting to extend the maximum duration of Parliament beyond five years required the express consent of HoL (as required by 1911 Parliament Act) – unanimous opinion on this point b) by a majority, they considered that the Parliament Acts themselves could not be used to delete the exception set out in s2(1). In other words, they were of opinion that a Bill purporting to delete the requirement in s2(1) (that a Bill to extend the life of Parliament was excluded from Parliament Acts), could not itself be pushed through under the Parliament Acts. Instead, it would need the express consent of the HL. - Young suggests there was a chance in the rule of recognition. This was stated by the Lordships. In Jackson. The rule of recognition comprises of legal and political fact. The parliament act 1949 was recognized not only because it satisfied requirements of 1911 Act, but because it is a change in political fact. Parliament is bound by 1911/1949 Acts, but because of the change in political fact as well as law. Future Parliaments are only bound by the political rule of recognition. An Act to extend the life of parliament made under 1911/1949 wouldn’t be within the political manner and form. So Parliament hasn’t bound itself. The distinction between legislative supremacy and political restrains should be maintained.

Is Parliamentary sovereignty a matter in keeping of the courts?

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Jennings says yes – sovereignty of Parliament is a legal principle; being recognised and acted upon by the courts, it may be counted as a principle of common law. There is, after all, no Act of Parliament where judicial obedience is prescribed. a) The authority of Acts of Parliament depends on the common law b) Parliament can change the common law in any way whatever, since Acts override common law c) Hence Parliament can change the legal rules on which the authority of Acts of Parliament rests. Wade says no – it is the ultimate political fact, the source of the rule is the recognition of political events. “the rule that the courts obey Acts of Parliament is above and beyond the reach of statute....judicial obedience is in one sense a rule of common law, but in another it is the ultimate political fact upon which the whole system of legislation hangs. 2) UK’s accession to EC/ implications for psov and implied repeal

It is often argued that the principle of parliamentary sovereignty is the key component of the UK constitution and that Parliament has the power to make or unmake any law it wishes, and that no other institution can question its validity. However, there is one limit to Parliament’s power – it cannot bind its successors. The existence of directly effective EC law challenges this theory > it requires EC law to override national law, even the statutes. This poses the biggest challenge to Dicey’s orthodox theory. 

Van Gend en Loos – EC law constitutes a new legal order of international law; EC law is supreme and its validity can never be assessed by reference to national law, as such an assessment would undermine the aims of the EC law.

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Costa v Enel; - confirmed Van Gend en Loos; stated that Member States, in constitutional terms, created this legal order by transferring to the new Community powers real powers stemming from a limitation of sovereignty. Note, however, that this was controversial and that the arguments advanced here were achieved by the court adopting a teleological approach, rather than a textual one; it aimed to assert its authority and hence took a bold step in trying to achieve that.

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UK usually has a dualist approach to international treaties, in that its provisions usually have to be incorporated by an Act of Parliament to take effect in domestic law; hence, it could be said that this makes it difficult for the supremacy of EC law to be guaranteed, since any Act can be repealed by future Parliament. - To that effect, s2(1) of the ECA 1972 makes the concept of direct effect a part of the UK system, by enabling the courts to enforce the Treaty provisions without the need for separate Parliament legislation. It also provides for 6

implementation of Community obligations, even if intended to replace national legislation. 

Factortame – the leading decision on the relationship between national and EC law - Prior to this case, the courts usually used the principles of construction to assume that, when Parliament enacted the ECA 1972, it intended any ambiguity or inconsistency with EC law to be resolved in favour of domestic law, provided that there was no express indication by Parliament as to the contrary. - Series of cases concerning a clash between EU laws forbidding discrimination in the grounds of nationality against the nationals of member states and the Merchant Shipping Act 1998 which imposed discriminatory rules concerning fishing boats. Factortame challenged the application of the UK Act and sought a grant of interim injunction that would suspend the application of provisions pending a reference to ECJ. Given that such a suspension would breach the Diceyan doctrine of parl. sov. , the UK courts refused to permit it. However, the ECJ held otherwise. The HL was faced with ultimate dilemma as to whether it should obey the latest will of Parliament or the ECA 1972. It chose to obey the latter and to award the injunction.

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Various responses to Factortame i) Wade’s revolution view: - Doctrine of implied repeal was violated and the 1988 Act was disapplied under the ECA 1972. This was a constitutional revolution – the 1972 Parliament has succeeded in binding the parliament of 1988 thus restricting its sovereignty; something that was meant to be constitutionally impossible. ii) Evolution view – Sir John Laws and TSR Allan a) Laws -> opposes Wade in terms of it being a constitutional revolution. States that Parliament retained its power to repeal the ECA 1972 (leaving aside the political issues). The only thing that can be said is that s2(4) of the ECA 1972, the effect of which is that it established a rule of construction for later statutes so that any later statute has to be read in light of the EC law, cannot be abrogated by implied repeal. Thus, there was no true delegation of sovereignty in legal terms, only a delegation of legislative power to EU b) Allan -> supports Laws and states that what has occurred in Factortame is far from any dramatic, let alone unauthorised, change. The HL has merely determined what the existing constitutional order required in these novel circumstances.

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iii) Constitutional statutes view – Laws obiter in Thoburn - ‘In the present state of its maturity the common law has come to recognise that there exist rights which should be properly classified as constitutional and fundamental’. Concept of constitutional statutes that might be protected from repeal (e.g. bill or rights 1689 and possibly the ECA 1972). - Although doctrine of implied repeal is still altered, Laws seems to have done so rather naturally, explaining the phenomenon as a modernisation of the common law rather than a revolution. - Refer back to the notion of entrenchment as to subject matter – in light of Thoburn and Factortame, no longer conclusively valid. 

My view: it could be argued that parliamentary sovereignty remained intact, as Parliament still retains the right to withdraw from the EC or to legislate in contradiction with its laws; hence, as long as Parliament retains these fundamental powers, it retains its sovereignty. Given political implications that might occur, however, no such action is currently foreseen; in other words, this might be said to be an argument of remote possibility, such as that advanced by Kavanagh in the context of HRA 1998. The courts have so far taken parliament at its words as expressed in the ECA 1972 and it could be argued that it will continue to do so until expressly instructed to the contrary. A case can in theory still be made for Dicey’s theory today, but only in so far as its theoretical issues are concerned – the ultimate decision whether to remain in EU is in theory left up to Parliament. Meanwhile, it is conceivable, although unlikely, that Parliament might legislate deliberately in contradiction to a rule of EC law, perhaps even with the expressly stated purpose of negating the effect of that rule in the UK. Such a Bill was introduced in Parliament in 2005, but it had no chance of passing. If an Act of such nature would be passed the courts could not refuse to apply it without asserting a power which the constitution has never accorded to them and to which no English court has yet laid claim. Although the response of the British courts cannot be predicted with certainty. It is certain though that ECJ would bring infringement proceedings before the ECJ against the UK and, if it ignored the court’s judgement, the country would be h...