Parliamentary Sovereignty

parliamentary sovereignty

Parliamentary sovereignty is a legal rule — Parliament can make whatever law it chooses and there is no authority that is competent to invalidate an act of Parliament.

Article 9 of the Bill of Rights 1689

parliament should not be questioned anywhere outside parliament

What does Dicey say about parliamentary sovereignty

"Parliament[…] has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."

What did British Railways Board v Pickin [1974] establish about parliamentary sovereignty

The courts should not interfere with or adjudicate how Parliament exercised its function when making its decision on a piece of legislation.

the courts are not competent enough to question the validity of parliamentary sovereignty

implied repeal

When a new act of parliament conflicts with an old one. If this happens, then the new act of parliament is used, since the courts assume this is Parliaments latest intentions.

what did Ellen Street Estates v Minister of Health [1934] suggest about parliamentary sovereignty

implied repeal prevails, meaning that past parliaments cannot bind future ones

what is the relationship between parliamentary sovereignty and international law

a rule of UK law can be valid even if it is inconsistent with international

International treaties have to be incorporated by statute in order to take effect

Lord Scott in AF (No 3) [2009] UKHL 28; [2010]

Parliament could legislate to override the right to a fair trial protected by article 6 ECHR and courts would be bound to uphold that legislation

Parliament retains the authority if it wishes to do so to legislate incompatibility with the ECHR

section 40 Human Rights Act [1998]

primary legislation that is incompatible with the ECHR is still valid

Lord Hoffman in R v Secretary of State for the Home Department Ex p Simms [2000]

'Parliamentary sovereignty means parliament can if it chooses, legislate contrary to the fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.'

Jennings Manner and Form Theory of Parliamentary sovereignty

Parliament can only constrain itself in the manner and form in which it legislates.

manner

Parliament can change the process by which legislation is enacted

form

Parliament can ensure that if another parliament wants to achieve a certain objective, it has to do so in a certain way — for example, requiring expressed repeal instead of implied repeal or to legislate clearly.

example of parliament binding manner

Statue of Westminister — stated that parliament would not legislate for any of the colonies unless the legislation included a statement that the colony had given their consent.

how does HWR Wade undermine Jennings

sovereignty is a political act not a rule of law, sovereignty is a rule that parliament cannot bind its successors, whether as to the manner or form of legislation or as to anything else (e.g changing what constitutes parliament)

How did EU membership undermine parliamentary sovereignty

If an Act of Parliament was inconsistent with EU law, it had to be disapplied

what is a Henry VIII clause?

gives a minister or an external body the power to amend an Act of Parliament.

What is a prospective clause

A prospective clause gives a minister the power to amend laws which have not yet been made

How do Henry VIII prospective clauses undermine parliamentary sovereignty

the traditional view of parliamentary sovereignty is that once laws are made, they are valid. Therefore having the power to change a law before it is enacted is inconsistent with parliamentary sovereignty.

R (Jackson) v Attorney General 2005 UKHL 56

There can be extreme circumstances where the courts refuse to apply an Act of Parliament, especially if it is offensive to some common law principle.

how does prorogation interfere with parliamentary sovereignty

if parliament is prorogued it cannot legislate — Miller II

Dicey's positive rule of parliamentary sovereignty

Parliament can make or unmake any rule and it is to be obeyed

Dicey's negative rule of parliamentary sovereignty

Nobody or persons can make rules which derogate from or override an Act of Parliament

What was held in Cheney v Conn 1968

"What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law"

What was held in Jackson v Attorney General 2006

"It is impossible for Parliament to enact something which a subsequent statute dealing with the same subject matter cannot repeal"

ouster clauses

=Provisions inserted into legislation to prevent judicial challenges that target particular decisions that target particular decisions by public bodies

R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22

section 67(8) of the Regulation of Investigatory Powers Act 2000, which stated that decisions of the Investigatory Powers Tribunal (IPT), including those regarding its jurisdiction, could not be appealed or questioned in any court.

Despite the seemingly clear wording of the ouster clause, the Supreme Court held that it did not prevent judicial review based on an error of law, undermining parliamentary sovereignty

constitutional statutes

laws that have a fundamental role in the UK's constitution. The effect is that they establish or alter the framework of government or protect key rights. (e.g HRA 1998)

can parliament legislate against constitutional statutes? Thoburn v Sunderland City Council 2002 EWHC 195

If parliament wants to legislate something that is at variance with a constitutional statute it has to do this expressly or by necessary implication

what does the Thoburn case say about Henry VIII clauses?

ministers cannot use Henry VIII clauses to amend constitutional statutes unless Parliament expressly authorises it

ordinary statutes

laws that govern everyday matters and can be enacted or amended by Parliament without special procedures.

the doctrine of constitutional statutes

if a newer ordinary statute conflicts with a constitutional statute, a constitutional statute takes precedent

courts power to strike down legislation

many courts have stated the readiness to do so but this is more of a cautionary provision and is not manifested (Jackson case)

Mark Elliot and Robert Thomas

the courts cannot strike down any legislation as unconstitutional they can only interpret and apply such legislation

Lord Judge of Henry VIII clauses

"every Henry VIII clause […] is a blow to the sovereignty of parliament"

Peter Browning

Parliamentary sovereignty is "certainly threatened by the use of referendums […] the sovereignty of parliament becomes the sovereignty of the people."

Barber and Young on Henry VIII clauses

they blur the line between legislative and executive power as normally Parliament makes the law and minister enforce it but Henry VIII clauses allow ministers to change the law - they are constitutionally dangerous