Tutorial 4 - C+A PDF

Preview

Summary

Parliamentary Sovereignty tutorial notes...

Description

1. What is the meaning of ‘parliamentary sovereignty’? How does a ‘continuing view’ of sovereignty differ from a ‘self-embracing’ view? What is the so-called ‘new view’?

- Parliamentary sovereignty means that Parliament is the supreme legal authority in the UK - Various definitions have been established to either reinforce or challenge this - Firstly, this is reinforced by A. V. Dicey’s traditional definition of parliamentary sovereignty which casts Parliament as the supreme legislative force in the British Constitution A.V Dicey, Introduction to the Study of the Law of the Constitution, 1885, three main principles of Parliamentary Supremacy: 1.

Parliament is the supreme law-making body and can enact laws on any subject matter

2.

Parliament cannot bind its successor

3.

No court of law (or other body) can question the validity of Parliaments enactments

- The courts generally appear to accept that Parliament is sovereign - However, there is no legal limit to the laws that may enact: any restraint that Parliament exercises therefore flows from the political, not the legal, system

- On that particular view UK courts cannot strike down or refuse to apply Acts of Parliament because there are no external constraints on what Parliament can do

- However Parliament’s sovereignty are discussed through different models; fixed (continuing), self embracing and the new view

- Continuing sovereignty view wade = Parliament has a continuing sovereignty one that cannot be destroyed and which means that one thing that it cannot do is entrench legislation - The continuing theory is proposed by Wade which holds the constitutional rule that establishes the sovereignty of Parliament

- This requires courts to recognise all Acts of Parliament as valid laws and to prefer the most recent expression of parliamentary intention over any earlier conflicting intentions = is ultimately a political, not legal, one

- To change this there would have to be a revolution - Enrolled Bill Rule - Edinburgh case = if a bill has gone through both houses then the courts cannot question it (in the mode it was brought to light with) this conflict with Acts of Parliament 1911 and 1949 - restriction on House of Lords

- Self embracing sovereignty = meaning that its power extends to destroying its own sovereignty

- Meaning Parliament would be incapable of amending or repealing the law in question, so would be no longer sovereign

- The central contention of this is that Parliament is, and should be capable of laying down binding conditions concerning how and in what form legislation is to be enacted, but that it is not and should not be, capable of tying future legislators’ hands as to what legislation they may enact

- The new view / manner and form does allow for contingent entrenchment of legislation = meaning if Parliament were subsequently to seek to repeal that Act by

1 of 5

means of legislation not supported by the requisite majority, the earlier Act would (according to the new view) remain in force; 2/3 majority

- Ref lock entrenchment goes against Wade - Supporters of the view argue that permitting Parliament to entrench legislation in this way is a good thing because it steers a desirable middle course between two undesirable extremes (self embracing and continuing)

Look at diagram in the book Unintended view (newer view) - Allen - He disagrees with Dicey’s view and that he is wrong = Parliament is not sovereign - Constraints on Parliament, there is unintended constraints - Parliament receives its power from democracy - Hunting Act 2004

2. What was novel about the decision in Factortame (No 2)? To what extent is it compatible with Dicey’s doctrine of Parliamentary Sovereignty? - What was novel about the decision in Factortame (No 2) was that in contrary to the right the UK Parliament enacted the Merchant Shipping Act 1998 to protect the British fishing industry by preventing the foreign nationals from exploiting British fish stocks - However the (Court of Justice of the European Union) CJEU eventually held that the nationality restrictions imposed by the Act were incompatible with Art 49 - In more depth the CJEU reminded the Law Lords that the supremacy principle requires national courts to apply EU law in preference to national law and to ignore any national rule or principle - including the doctrine of parliamentary sovereignty - This led the HL to take an unprecedented step of issuing an injunction misapplying the relevant parts of the Merchant Shipping Act 1988 in order that the claimants could exercise their conflicting rights under the Treaty (international law is not binding - questions PS) - Factortame goes against Dicey’s doctrine of Parliamentary Sovereignty as his main principle is that Parliament is the supreme law-maker and that no courts of law can go against its enactments, however in Factortame this is exactly what had been the outcome, as the initial Merchant Shipping Act 1998 had come in conflict with CJEU which overrides the Act set by Parliament - Another problem - implied appeal conflicting here - Parliament takes subject to EU law under ECA - important to remember

3. What is the significance of R (Jackson) v AG [2006] 1 AC 262 for the doctrine of parliamentary sovereignty? (Hint: your answer should include the ‘rule of law’ and ‘manner and form’, as well as some influential dicta.) 2 of 5

- The judgement in Jackson that signifies the first explicit judicial endorsement of its position, meaning for the first time judges have suggested that the courts may have the authority to strike down an Act of Parliament - For example both Lords Steyn and Hope rejected unlimited Parliamentary supremacy by reference to contemporary constitutional developments - Lord Hope argued that ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’, in his dicta he is explaining that if the ‘rule of law' is the ultimate factor, then it is this, and not Parliamentary supremacy, that is responsible for the respective powers of Parliament and the courts - Rule of law - two types - formative (independent judiciary) and substantive (constrain Parliament) - Baroness Hale concurred, ‘The courts will treat with particular suspicion any attempt to subvert the rule of law.’ - she is saying that entrenchment can be possbile - Lord Steyn, perhaps the most candid, stated, ‘supremacy of Parliament is still the general position of our constitution. It is a construct of the common law. The judges created this principle...' - All three judges appear to agree that the sovereignty of Parliament, which is ultimately in the custody of the courts, has evolved to the point where the Diceyan notion of parliamentary supremacy no longer reflects the true constitutional position.

4. What is the significance of R. (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 for the doctrine of parliamentary sovereignty? - The significance of the judgment is that it operates in the service of parliamentary sovereignty and to articulate the implications of EU membership in a manner that is compatible with - Also parliamentary sovereignty were told by the majority that it is a fundamental principle of the UK constitution and therefore this correlated with the majority’s view that Parliament is capable of legislating so as to institute of source of UK law that is independent of the legislation enacted to achieve that outcome - Examples: para 277 of the Miller case judgement has importantly highlighted two rules that correlates with parliamentary supremacy, in which they stated: i.

The executive (government) cannot change law made by Act of Parliament, nor the common law ii. The making and unmaking of treaties is a matter of foreign relations within the competence of the government - In regards to this point in the judgement, it also explains that “It agrees that as a government it cannot alter the law of the UK which statute has made, but it says that if it serves notice to leave the EU, and in due course we leave, it would not be altering the statute; the statute would simply cease to apply because there would no longer be rules under treaties to which the UK was a party.”

3 of 5

Your tutor will divide the class into two, to discuss the following motion: “Parliamentary Sovereignty is dead. It cannot be brought back to life by the UK leaving the European Union.” Please prepare arguments both for and against the proposition above. Arguments for

Arguments against

An argument for is supported by the case of Miller, as the majority had commented on the effects of the withdrawal from the EU “will constitute a significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act”. This highlights that leaving the EU will just demonstrate the weakening of parliamentary sovereignty due to the major constitutional change, also seen before with ambiguity from the ECA 1972

A point against the statement due to the UK leaving the EU as it further supports the Dicey’s words of “the right make or unmake any law whatever…and…no person or body is recognised by the Law of England as having the right to override or set aside the legislation of Parliament”. Also the work of Wades Continuing View that parliamentary sovereignty cannot be destroyed especially if they are out of the EU

One point to support this statement is reinforced by the EU Withdrawal Act 2018; it creates powers to make secondary legislation in which ministers can amend law or make regulation, this can undermine parliamentary sovereignty as Parliament would not be the only body amending and making laws - power imbalance? Also this an ongoing concern seen with delegated legislation. Generally it would not be possible to follow through effectively as the terms in the Act are considered vague

The British constitution is holds the position to be powerful on its own and this is supported in Keith Ewing’s article where he states ‘powerfully restating and applying Dicey's first principle in relation to the 1972 Act’ Especially through the EU Withdrawal Act 2018

Lord Justice Laws in Thoburn had. Stated that Parliament has only so much power as the constitution concedes to it; as the constitution evolves over time, the amount of power wielded by Parliament may alter Also that legislation could only be expressly repealed - still a problem with implied repeal

EU membership has entailed legal, judicially enforceable limits on Parliament’s freedom to make law, as seen in the case of Factortame by leaving the EU this will no longer be a concern

4 of 5

Summarised article K. Ewing, ‘Brexit and Parliamentary Sovereignty’ (2017) 80 Modern Law Review 711

- This law review addresses the implications of R (Miller) v Secretary of State for Exiting the European Union for the legal principle of parliamentary sovereignty, and argues that the strong restatement of the latter is the most significant feature of the decision.

- It shows traditional principle in the Dicey tradition has been strongly applied against the competing claims of EU law, the royal prerogative, the referendum and devolution.

- However, the note also argues that the claims relating to parliamentary sovereignty could have produced a different result and that the most compelling feature of the case was the argument that was not forcefully put by the Government, namely that Parliament had already provided sufficient authority for the triggering of Article 50.

5 of 5...