Parliamentary Sovereignty PDF

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Parliamentary Sovereignty

Blackstone: ‘If the P will positively enact a thing to be done which is unreasonable, I know of no power that can control it’. Dicey: ‘Parliament has the right to make or unmake any law whatever’. ‘No person or body is recognised as having a right to override or set aside the legislation of Parliament.’ Common law concept – ‘natural law’ giving way to PS – City of London v Wood – ‘An act of P can do no wrong, though it may so several things that look pretty odd.’ Since then courts have confined PS. Madzimbamuto v Lardner Burke – if Parl chose to do something ‘unconstitutional’, ‘the courts could not hold the Act of Parliament invalid’. Compare US – ‘constitutional courts’ decide whether acts of legislative body are consistent with constitution, and can set those acts aside if they are not. Marbury v Madison – reform of the UK courts? Historial ‘challenges’ to concept of PS 1) Challenges based on ‘irregularities’ in passage of Bill through Parl Edbinburgh and Dalkeith Railway v Wauchope – led to ‘Enrolled Bill Rule’ – can’t question how it got there once it has become an Act. Lee v Bude and Torrington Junction Railway Co – allegation of fraudulent practices behind passing of Act. Held: if so, for legislature to correct by repealing it. As long as it exists, the courts must obey it. Pickin v British Railways Board – Parl has right to control own proceedings and regulate internal affairs without interference from Courts. 2) Challenges on the grounds that an Act was contrary to a ‘constitutional text’ Treaty of Union (important ‘constitutional text’) said no tax levied in Scotland unless in UK first. Murray v Rogers – Abolition of Domestic Rates (Scotland) Act introduced the Community Charge with no equivalent in England. Court had no power to challenge validity of 1987 act on basis of Treaty. 3) Challenge on ground that Act inconsistent with Public International Law Cheyne v Conn – taxpayer claimed Finance Act 1957 conflicted with Geneva Convention as part of tax paid would go towards manufacture of nuclear weapons. Statute ‘is the law which prevails over every other form of law’. 4) Challenges on grounds of Human Rights eg R v Jordan – unsuccessful before HRA 1998. 5) Challenges based on argument that Parliament can bind its successors Doctrine of implied repeal: Ellen Street Estates – no P can bind later P. Express repeal of an act always available to later P. 1919 legislation overruled by Housing Act 1925. Paradox – if P cannot bind its successors, can it be said to be truly sovereign? Continuing theory – sovereign P perpetual institution. Unconfined legislative power is created afresh each time it sits irrespective of what previous P sittings might have enacted. Supported by Dicey. Self-embracing/self-limiting theory – P can bind its successors by entrencing certain legislation, making requirements for repealing or amending it more onerous. Art 5 US Constitution permits amendments only if change attracts support of 2/3 majority in both houses of Congress and ¾ majority of the individual states. AG for New South Wales v Trethowan – Legislative Council of NSW entrenched by insertion of new s7A in Australian Constitution Act 1902 providing that no Bill for abolishing it could be presented for Royal Assent unless referendum had first been carried out & had received majority support. Also, any attempt to amend new s7A in Constitution Act also required referendum. Later attempt to pass two Bills to repeal s7A and abolish Council were ultra vires as procedure had not been followed. Harris v Minister of Interior – s152 South Africa Act 1909 regarding voting rights also successfully entrenched by requiring 2/3 majority of both Houses of South African P sitting together. The above EGs all relate to countries with a written constitution – harder to change things?? Theory v Practice i) Grants of independence Statute of Westminster 1931 s4 put in statute the convention that British P will not legislate for the ‘Dominions’ except at their request. Unlikely that future P could repeal this.

As with ECA 1972 – Blackburn v AG – Denning: ‘Freedom once given cannot be taken away. Legal theory must give way to practical politics.’ Madzimabuto – C’s detention was illegal under Southern Rhodesia Act but UK could not enforce. ii) Membership of the European Community ECA 1972. Export Tax on Art Treasures (No 2) – ECJ – ‘definitive limitation on their sovereign powers’. From UK courts’ perspective – Garland v British Rail Engineering: Lord Diplock: ‘…however wide a departure from the prima facie meaning of the language of the provision might be needed in order to achieve consistency’. Hoffman J in Stoke-on-Trent v B & Q plc – ‘The Treaty of Rome is the supreme law of this country, taking precedence over Acts of Parliament.’ ‘It flows into the estuaries and up the rivers. It cannot be held back…It is equal in force to any statute’ – Denning in Bulmer v Bollinger. Factortame legislation – UK courts should not apply national legislation (Merchant Shipping Act 1988) if to do so would conflict with Community law. Repealing the 1972 Act is essentially a political and economic issue. Proposed Constitution allows withdrawal. Art 1(5)A of draft constitution + consider any impact. Article I-59 ‘Voluntary Withdrawal from the Union’ – legally possible. iii) Human Rights Act 1998 Expressly preserves PS: s3(2)(b) P legislation cannot be struck down. S6(3) definition of public authorities subject to Act excludes P; s4 dec. of incomp: order amending offending legislation under s10 is at minister’s discretion; s19 – Ministerial statement as to whether Bill compatible or not. R v A – stretched interpretation inconsistent with PS, but boundaries pulled back in: Re S, Mendoza – courts cannot strike down stat instruments if wording prevents that being done. iv) Acts of Union and Devolution 1800 Act of Union united Ireland and UK ‘forever’. Act of Union with Scotland in 1706 – ‘forever’ Scotland – legislative devolution under Scotland Act 1998 – directly elected Scottish P had power to pass acts to alter Scottish law, although limited: may not modify certain enactments, may not affect those matters specified as ‘reserved’. Westminster P remains able to legislate for Scotland against its wishes, but real power lies with First Secretary of Scotland. Legally Scottish P could be abolished by Act of UK P. Reality: Scotland has considerable legislative and political autonomy. Wales – Gov said ‘nothing in the Bill which is capable of calling to question to sovereignty of P’. Realistic? Government of Wales Act 1998. Specific powers granted to National Assembly: powers to amend or repeal primary legislation for the purpose of dealing with non-departmental public bodies in Wales. However, Assembly’s powers remain limited. Northern Ireland – Good Friday Agreement of 1998 provided for i) devolved assembly with legislative powers, ii) new Northern Ireland Human Rights Commission; iii) an Equality Council. v) The power of politics Hostile response to the Community Charge legislation – good EG of power of public opinion....