Parliamentary Sovereignty

H.W.R Wade

• Orthodox Diceyan view says that Parliament is sovereign and cannot bind its successors

• Jennings, Friedman, and others challenge this → Parliament imposes binding manner and form requirements on future legislation - Wade argues this challenge is mistaken

• Rule that courts obey Acts of Parliament is an ultimate legal principle that cannot be changed by statute

• Parliament cannot legally alter the basis of its own authority by ordinary legislation

• Distinguishes between ordinary legal change + revolutionary constituional change

• If courts shift allegiance to a new authority, that is not ordinary legal amendment but a political revolution

• Sovereign legislature depends on an ultimate legal principle that cannot be altered by statute

  • Subordinate legislature by contrast operates under a superior legal authority and can be bound by it including through manner and form requirements

• Wade treats Parliament Acts as delegated legislation rather than proof that Parliament can redefine sovereignty at will

AV Dicey, An Introduction to the Study of the Law of the Constitution (8^thEd, 1915) Chapter 1

• HWR Wade, ‘Sovereignty—Revolution or Evolution?’ (1996)  112 LQR 568

• Wade argues that Factortame was a constitutional turning point, not just a technical exercise in stautory interpretation → European Communities Act 1972 allowed community law to prevail over later Acts of Parliament

• Contrasts two explanations of Factortame

  • Revolution view: case showed a real shift in doctrine of parliamentary sovereignty - a later Act could be disapplied under an earlier one

  • Construction view: courts were intepreting later statutes as subject to EU law unless Parliament said otherwise

    • Wade prefers the revolution view - construction view is camoflauge for a deeper constitutional change

  • Wade relied heavily on Lord Bridge’s language in Factortame no2 → idea that Parliament voluntarily accepted a limitation on its sovereignty when it enacted the 1973 Act

  • Sounds like Parliament can bind future Parliaments which clashes with the classic Diceyan idea that no Parliament can limit its successors

Parliamentary sovereignty: law, politics, and revolution T. R. S. ALLAN.^*

• Article criticises Sir William Wade’s view that Factortame caused a constitutional revolution by letting the 1972 European Communities Act bind future Parliaments

  • Argues that HOL did not create a new rule of recognition, it worked within existing constitutional principles

• Wade says the courts use of the 1972 Act to disapply the Merchant shipping act 1988 showed that parliament can bind its successors

• Treats this as revolutionary - contradicts parliamentary sovereignty

• Allan critiques Wade:

  • Wrongly reduces sovereignty to a mere political fact and ignores the role of legal reasons in constitutional adjudication

  • Judges can make legitimate constitutional decisions by applying settled legal principles not by abandoning law for politics

  • Accepts that courts use strong interpretative principles to avoid constitutional conflict

  • Makes technical revolution language misleading - change is better understood as evolution - instead a major practical shift not a change in the rule of recognition

  • Court had to balance democracy, legal certainty, and the supremacy of community law

  • Wrong to treat Parliament has having unlimited power to destroy democracy or basic rights

    • Sovereignty is limited by deeper legal principles

Alison Young, ‘Sovereignty: Demise, Afterlife, or Partial Resurrection?’ (2011) (9)(1) International Journal of Constitutional Law 163.

• Sovereignty is a useful concept in UK constitutional law but it should be understood through constitutive rules, not just lawmaking powers

• Important Q is which institution has power to define and change those constitutive rules - esp rules about how Parliament is constituted and how valid legislation is made

• Young argues that Dicey’s idea that Parliament cannot bind its successors = valid + desirable rule of English legal system

• Barber says Factortame changed parliamentary sovereignty and that sovereignty is too vague

  • Young disagrees with the way Barber frames the issue - confuses parliamentary sovereignty with the rule of recognition

  • Rule of recognition

    • Young uses Hart theory to explain that legal validity depends on a rule fo recognition accepted by officials

    • Argues that changing this rule is not the same as changing the whole doctrine of parliamentary sovereignty

    • Even if Factortame altered how statutes are recognised - does not automatically mean parliamentary sovereignty disappeared

• Continuing vs self embracing sovereignty

  • Continuing: sovereignty means Parliament cannot bind future Parliaments; self embracing sovereignty means it can

• Constitutive rules: rules that define Parliament, continuity, valid enactment and how those rules change

• Under self-embracing sovereignty: Parliament cannot do that alone - any change requires acceptance by both Parliament and the courts

• Under continuing sovereignty - Parliament cannot do that alone, any change requires acceptance by both Parliament and the courts

• Young argues that sovereignty matters because it helps preserve the legitimacy of the UK’s political constitution

R v Secretary of State for Transport, ex parte Factortame (No. 2) [1991] 1 AC 603

• Confirmed that the Merchant Shipping Act 1988 could not be enforced where it conflicted with community law rights protected by European Communities Act 1972

• Made the case constitutionally famous because it was the first time a UK court effectively disapplied an Act of Parliament on EU law grounds

• Major challenge to traditional parliamentary sovereignty because it showed EU law prevailing over later domestic legislation

• Lord Bridge: Parliament accepted any limitation on its sovereignty voluntarily when it enacted the 1972 Act

Jackson v Attorney General [2006] 1 AC 262.

• Hunting Act 2004 banned hunting wild mammals with dogs

• HOL opposed the bill - gov used the Parliament Acts 1911 and 1949 to enact it without Lords consent

• The Parliament Act 1949 invalid because it was passed using the 1911 Act procedure

• If the 1949 Act was invalid, hunting act also invalid

• Held: Parliament Act 1949 valid - the 1911 Act created a new route for passing primary legislation, not delegated legislation