Parliamentary sovereignty

What is parliamentary sovereignty?

The legally unlimited power of the UK parliament

UK courts CANNOT strike down or invalidate an Act of Parliament, or declare it unconstitutional or unlawful.

What was Diceys two part definition of parliamentary sovereignty?

1. The right to make or unmake any law whatever:

2. No person or body is recognised by the law of England as having right to override or set aside the legislation of parliament

Cases that says international law is subject to an act of parliament

Mortensen v Peters (1906) and Cheney v. Conn [1968]

Even international law is subject to an Act of Parliament within the UK.

If Parliament enacts legislation that conflicts with international law (whether treaty obligations or customary international law), UK courts will apply the Act of Parliament and will not invalidate it on the basis of international law.

What did parliamentary sovereignty emerge from?

The English Civil War between parliament and the monarchy

English Civil War 1642-46: Parliament v Crown.

Parliament wins so they execute Charles 1 in Jan 1649 after trial in Parliament.

What were the 2 conflicting opinions before PS?

Case of Proclamations (1611): the Crown could not change the law without Parliament; prerogative powers only exist where recognised by law.

• "the king hath no prerogative, but that which the law of land allows him"

Case of Ship Money: suggested the King could govern or raise money without Parliament, reflecting an older view of royal authority.

• "the king may give laws to his subjects, and this does not detract from him when he does it in parliament" -

What are the two Key Case Law for Parl Sov

1. British Railways Board v Pickin [1974]

1. R. (Jackson) v Attorney General [2005]

What Happened in British Railways Board v Pickin [1974]

Pickin owned land next to an abandoned railway line. the rule was if the railway was abandoned, adjacent landowners could claim the land.

British Railways Act 1968 changed this rule. Ownership rights went to the British Railways Board (BRB), not neighbouring landowners.

Pickin lost the chance to expand his land and increase his wealth.

He argued this was unfair because: he was not told about the change or consulted, and his rights were taken away.

Main argument: Parliament had been fraudulently misled by the BRB when passing the Act.

Ratio of British Railways Board v Pickin

Courts cannot question Parliament's legislative procedures.

The outcome of Pickin is very important but it is also that even he tone of the very strong judicial recognition of parl sov

What did Lord Reid and Lord Morris say in this case?

Lord Reid:  “strange and startling”

Lord Morris: Challenging the validity of Acts of Parliament would be ‘dangerous and impermissible’

What Happened in R. (Jackson) v Attorney General [2005]

Hunting Act 2004 banned fox hunting with dogs due to animal cruelty concerns

Very controversial, especially in the HoL. The HoL strongly resisted the Act.

The Act was forced through using the Parliament Act 1949 procedure. This allowed the HoC to pass legislation without HoL approval after a one-year delay.

Jackson challenegd both the validity of the Hunting Act 2004, and the validity of the Parliament Act 1949 itself.

Argument: the Parliament Act 1949 was invalid because it was passed without HoL consent.

• The 1949 Act expanded the powers given under the Parliament Act 1911.

• Therefore, Jackson argued the HoC could not legally use the 1949 process to bypass the Lords.

• If the 1949 Act was invalid, then the Hunting Act 2004 was also invalid.

Jackson 2005

Held that the Acts of Parliament were valid but engaged more with the argument.

Obiter dicta: Said that it may now be seen as out of place, it is a construct of the common law.

• 3 Judges questioning Parl Sov for the first time in a case.

• Removes from absolutism

Why do we still have PS?

Democracy

HoC is the only directly elected part of UK central government

HoC/Parliament gets the final say

Central organising principle

Acts of Parliament are supreme over case law, prerogative & conventions

Other branches operate by reference to PS

Govt must get Parliament to legislate for new powers

Constitutional focal point

PS helps explain the UK constitution

Symbolises the legitimacy of the UK constitution

Can Parliament bind future Parliaments?

Dicey: no

= No parl can bind its successors; every parl through time must be sovereign

Jennings: maybe, depending on circumstances

Procedural limits

• Parliament may be able to bind future Parliaments on how legislation is made.

• They cannot reduce power, only alter the legislative process

• Can impose extra procedural barriers/requirements before laws are passed

What is the name of the theory that says parliament can potentially bind its successors?

Manner and form theory

What are the modern challenges to parliamentary sovereignty?

1. Human rights law

2. Common law "fundamental" principles and rights

3. EU membership & Brexit

4. Devolution

What does s.3(1) of the Human Rights Act 1998 say?

s.3 HRA 1998 – Interpretative duty

Courts must interpret legislation compatibly with Convention rights “so far as possible”

Process

1. Courts first try to interpret legislation compatibly using s.3

2. If impossible, courts may issue a s.4 declaration of incompatibility with ECHR rights

How does S.3 of the HRA increase judicial scrutiny of legislation?

Broad interpretive power under s.3

Courts can depart from Parliament’s literal wording to achieve ECHR compatibility

Ghaidan (2004), which allowedIt enabled a rights-based interpretation of housing laws for same-sex couples.

Courts may “reinterpret” legislation to make it ECHR-compatible, which remains controversial.

What is s.4 of the HRA 1998?

Declarations of incompatibility

Higher courts can declare an Act of Parliament incompatible with ECHR rights

Signals to Parliament that the law breaches Convention rights

How does S.4 of the HRA increase judicial scrutiny of legislation?

Declarations of incompatibility under s.4

Courts can formally signal incompatibility to Parliament

The Gov/Parl usually responds, but there are notable exceptions.

The ECHR ruled in Hirst (2001) that the UK’s ban on prisoner voting violated the convention, and the Supreme Court reaffirmed this in Chester (2014).

How does HRA overall increase judicial scrutiny of legislation?

Substantive Review of Acts

Courts assess whether legislation is compatible with ECHR rights

In Nicklinson (2014) - assisted dying: the courts examined the substance/morality of the law from a human rights perspective

How does the HRA preserve Parl Sov?

ss.3 & 4 let courts review legislation for ECHR compatibility

Yet the Courts cannot strike down or invalidate Acts of Parliament

Parliament remains legally supreme despite rights scrutiny

s.4(6)(a): It ‘does not affect the validity’

UNCRC Bill [2021]

(Convention on the Rights of the Child Bill Reference)

SC said Parliament can “qualify” its own sovereignty by creating mechanisms like s.4 declarations of incompatibility

UK Parliament remains sovereign, but has voluntarily limited how that sovereignty operates

Devolved legislatures (e.g. Scottish Parliament) cannot do this in the same way

Suggests sovereignty is “qualified” in practice, not removed

What did Dr Bonghams case say about common law constitutionalism?

'When an Act of Parliament is against common right and reason, ..the common law will control it and can judge such Act to be void,"

This idea has been removed fully by cases like Pickin (1974)

What are the common law limits on parliamentary sovereignty?

Common law may protect fundamental principles/rights

UNISON (2017):’ access to justice’ is a fundamental constitutional principle. There was a long discussion of how important access to justice is to the common law in this case by the SC

Simms (2000): “principle of legality”

HoL basically said there are common rights, and these fundamental rights are not overridden unless Parliament uses clear wording

• Courts apply a “principle of legality” → presume Parliament does not remove fundamental rights unless explicitly stated

How is Common Law a limited restraint?

Common law limits are weak because courts have never struck down an Act of Parliament using common law

At most, courts use the principle of legality (clear words needed to override rights)

Moohan 2014: SC held that there is no general common law right to vote

The Scope of Common law rights can be limited

So, the common law protects rights interpretively, but does not invalidate legislation

What did the Obiter Dicta of Privacy International and Moohan say about the common law being a limit?

Moohan (2014): ‘I do not exclude the possibility’

Privacy International (2019): "It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude judicial review"

Yet What does Miller No2 (2019) call parliamentary sovereignty?

‘A fundamental principle of our constitutional law’

Which act gave effect to EU law in UK?

European Communities Act 1972

This leg was passed to allow the UK to join the EU, and it gave domestic effect to EU legal rules within the UK's legal system as was required to be a member.

s.2(4):  ‘any enactment passed or to be passed... shall be construed and have effect subject to the foregoing provisions of this section’

In which case did the courts try to resolve the clash between the domestic supremacy of EU law and the sovereignty of UK Parliament?

Factortame No2 1991

What did Factortame (No2) decide?

Eu law has supremacy in the Uk and contradictory national law must be "disapplied" but this only happens because parliament said so

Confirmed in Miller I (2017)

‘consistently with the principle of Parliamentary sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute’ [60]

What was Parliaments legislation central to delivering EU exit BREXIT?

EU Act 2017: Notification of Withdrawal

EU Act 2018: Withdrawal - Repealed the European Communities Act

EU Act 2020 (Withdrawal agreement)-  effects of ECA 1972 temporarily ‘saved’ for transition period

How did the EU (Withdrawal) Act 2018 partly preserve EU law?

s.5 had "retained" EU law

existing EU-derived rules were copied into domestic UK law temporarily.

Section 5 preserved a modified version of the supremacy of EU law for retained EU law in certain situations.

Supremacy of that no longer applies: (now abolished: Retained EU Law (Revocation and Reform) Act 2023)

What did the The Retained EU law (Revocation and Reform) Act 2023 do?

• abolishing the special category of “retained EU law,”

• ending the supremacy principle,

• and renaming remaining rules “assimilated law.”

Which section of the EU (Withdrawal Agreement) Act 2020 reaffirmed parliamentary sovereignty?

s.38

reaffirms that the UK Parliament remains sovereign, despite any continuing effects of EU law after Brexit. It declares that nothing in the Act limits Parliamentary sovereignty.

Which devolution acts explicitly preserve Parl Sov?

“This section does not affect the power of the Parliament of the UK to make laws for (country)?

• Scotland Act 1998 s.28(7)

• Northern Ireland Act 1998, s.5 (6)

• Government of Wales Act 2006 s.93(5)

How does the Sewel convention limit re devolved matter

The Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration.

Where was the Sewel Convention given statutory footing?

Scotland Act 1998 (amended by SA 2016), s.28(8):

‘But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.’

What is the limitations of the Sewel convention?

• The Scotland Act 1998 recognises the convention as political, not really enforced legislation.

Miller v SofS for Exiting the EU [2017]

What does s.63 A of the Scotland Act 1998 talk about?

The permanence of a Scottish Parliament and government, Similar protections under the Wales Act 2017

s.63A says the Scottish Parliament and Scottish Government are intended to be a permanent part of the UK constitution and should not be abolished without a referendum in Scotland.