The supremacy of Parliamentary statutes + the Rule of Law

Doctrine of Implied Repeal + supporting case (E v minister of…)

Doctrine of Implied Repeal = sovereignty in Parl. of the day, cannot bind future Parls. / supported by Ellen St Estates v Minister of Health 1934

Thoburn v Sunderland City Council 2002 (LJ quote)

Thoburn v Sunderland CC / Laws LJ: ‘Being sovereign, Parliament cannot abandon its sovereignty’

Sources of Parl. sov. - theoretical arguments

A.V. Dicey - supremacy is a legal fact, fundamental element / Hart and Wade - it’s a political fact, judges recognised Parl’s authority / Kelsen - basic norm, foundation of the legal system, all other laws stem from it

Sources of Parl. sov. - Constitutional common law theory

Judges created the principle, so it’s a principle of common law

Challenges to Parl sov (statute and coal case, note)

Statute of Westminster 1931 - decolonisation, reduced sovereignty over former colonies / e.g. British Coal Corp v R 1935 - established Canada’s sovereingty / NOTE: reach of sovereingty reduced, not a legal chance

Parliament Acts

Parliament Act 1911 - Lords can’t veto legislation / Parliament Act 1949 - delaying power max 1 yr

R (Jackson) v AG 2005 - facts

R (Jackson) v AG 2005 / claimed Hunting Act 2004 = invalid because passed without the consent of the Lords (1yr delay) / so Parliament Acts itself unlawful

R (Jackson) v AG 2005 - Legal issues

Were the Commons able to make the Lords subordinate lawfully?

R (Jackson) v AG 2005 - Link to other cases (P v rail - but)

Pickin v Railways Bard 1974 - courts can’t invalidate Acts of Parliament / Jackson distinguished - can examine validity of acts based on legal grounds

R (Jackson) v AG 2005 - Ruling

Lords dismissed the claim, Hunting Act 2004 = valid / ratio = Parliament Acts passed following proper procedure / obiter = parl sov isn’t absolute, it’s subject to the rule of law

Some laws related to Parl sov

Northern Ireland Act 1998 (NI not subject to parl sov without country’s consent) / HRA 1998

Sovereignty theories (legal, constitutional, popular)

Legal sovereignty - classical Diceyan view, Parl sov / constitutional sovereingty - courts created parl sov, RofL = ultimate controlling factor / popular sovereignty - democratic theory, people hold authority through their voting power, Const. change needs their consent

Lord Steyn’s warning (Jackson)

Lord SteynL ‘The classic account given by Dicey… can now be seen to be out of place in the modern UK) / suggests pushback + RofL >

Cheney v Conn 1968

Cheney v Conn 1968 = statute is supreme over international law

R v Secretary of State 1999

R v Secretary of State 1999 - courts recognised how Parl could override HRs if it chose too, but Parl wouldn’t + courts will protect HRs

Attempts at semi-codification (HRA, procedural, NI, Scotland)

HRA - all laws must be compliant with it / procedural requirements - e.g. requiring a ‘super majority’ in commons / Good Friday Agreement 1998 - only changed by ref. / Union with Scotland Act 1706 ‘for all time’ (but amended by Scotland Act 2016)

Dicey quote on Parl limiting its sovereignty

Dicey - ‘A sovereign power cannot, while retaining its sovereign character, restrict its own powers by any particular enactment’

H.W.R. Wade on courts + parl sov

Wade argues it’s the courts’ role to protect parl sov

Thoburn v Sunderland City Council 2002

Thoburn v Sunderland City Council 2002 - Parl can’t bind successors, but statutes can’t be impliedly repealed (only explicitly)

R (HS2) v Secretary of State for Transport 2014

R (HS2) v Secretary of State for Transport 2014 / domestic laws invalid if in conflict with EU law (following Factortame), but limits - e.g. if EU law doesn’t comply with fundamental statutes (e.g. Magna Carta)

Bipolar sovereignty + C.J.S. Knight quote

Alternative to classical Diceyan view / C.J.S. Knight - ‘bipolar sovereignty of the Crown in Parliament and the Crown in its courts’

Orthodox v manner and form views of sovereignty

Orthodox - Wade, Doctrine of Implied Repeal = absolute, no substantive limits / Manner and form - Heuston, Parl could place special, procedural conditions

Further reading - Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty, Vernon Bogdanor

Bogdanor - use of international law (e.g. Factortame case), has limited parl sov / Sir Geoffrey Howe: ‘the ultimate supremacy of Parliament will not be affected’ by joining the EU

Further reading - Parliamentary Sovereignty: Contemporary Debates, J. Goldsworthy

Goldsworthy - conflict would be a power struggle that the courts are ‘ill-equipped to win’

Further reading - Introduction to the Study of the Law, Dicey

Dicey - parl sov and RofL = twin pillars of the English constitution / ‘The sovereignty of Parliament is… the dominant characteristic of our political institutions’

Further reading - The Basis of Legal Sovereignty, H.W.R. Wade

Wade - ‘No statute can alter or abolish that rule’ (orthodox view on how Parl sov is absolute, Parl can’t limit itself)

Dicey’s hierarchy

RofL = key to democracy + constitution / powerful tool for accountability / hierarchy = RofL > parl sov

Dicey’s 3 meanings of the RofL + overall definition

Govt officials can’t have discretionary power (laws have to be explicit + clearly defined) / equal subjection / common law is key / procedural emphasis, not substantive

William Robson (‘Justice and Administrative Law)

Robson criticised Dicey / greater substantive focus, distinguished between rights and duties of private individuals vs govt

W. Ivor Jennings (‘The Law and the Constitution)

Jennings echoed Robson’s criticisms of Dicey / argued for more state involvement

RofL promotes…

Individualistic political theory + the formal qualities of law (clarity, stability, and impartiality)

Certainty + Maitland quote

Law must be certain + predictable / can’t be retroactive / Maitland: ‘Known general laws, however bad, interfere less with freedom than decisions based on no previously known rule’

Equality - separate from RofL + Lady Hale

RofL is procedural, not substantive (only institutional morality) - doesn’t ensure equality / Lady Hale: ‘democracy values everyone equally, even if the majority does not’

Pierson case + Lord Steyn quote

Pierson case / Home Sec has a discretionary power to change a prisoner’s minimum sentence, butcan’’t decide a sentence retroactively / Lord Steyn: ‘Parliament must be presumed not to legislate contrary to the RofL’

Principle of legality

Courts assume Parl intends to protect the RofL unless explicitly not / links to Lord Steyn in the Pierson case

RofL vs Parl sov (Enhanced by Jackson + Lord Hope)

Questions if RofL should > parl sov / enhanced by Jackson 2005 - Lord Hope: ‘the rule of law enforced by the courts is the controlling principle upon which our constitution is based)

R (Cart) v Upper Tribunal + Laws

R (Cart) v Upper Tribunal / Laws LJ - ‘judicial review is a principle engine of the rule of law’

ROFL should be distinguished…

Distinguish from rule by law

R (Evans) v AG 2015 - facts

Evans (journalist) made a FOI request for letters from Prince Charles to govt / Upper Tribunal allowed the request (public interest) - but AG used statutory power (FOIA s53) to override the tribunal order

R (Evans) v AG 2015 - Ruling

R (Evans) v AG 2015 / SC ruled the AG’s veto was invalid - not reasonable, executive cannot override court decisions (incompatible with EU law)

Entick v Carrington 1765 - facts

Entick v Carrington / got messengers, led by Carrington, broke into Entick’s house searching for ‘seditious papers’ (under a ‘general warrant’ from Sec of State)

Entick v Carrington 1765 - Ruling + precedent set

Entick v Carrington / court ruled in Etnick’s favour / govt power isn’t absolute, warrants must be authorised by law / Sec of State was acting in ultra vires / set precedent - govt can’t act unless power explicitly granted by law (RofL)

Malone v Metropolitan Police Commissioner (MPC) 1979 - facts

Malone v MPC / Malone brought a case against MPC - phone tapping by the police was unlawful, violated right to privacy and property (article 8)

Malone v Metropolitan Police Commissioner (MPC) 1979 - Ruling

Court ruled in favour of MPC / right to privacy in phone calls = not protected by English law (parl sov) / in line with legal positivist views, contrasts Entick’s protection of rights against unspecified state power

Further reading - The Rule of Law and its Virtue in The Authority of Law, Joseph Raz (1979) - overview

Raz = formal, thin conception of RofL / law is morally neutral / RofL is a negative virtue (should be focused on how laws are passed, not their moral content)

urther reading - The Rule of Law and its Virtue in The Authority of Law, Joseph Raz (1979) - Quotes (democracy, says nothing, negative)

Raz - RofL is ‘not to be confused with democracy’ / RofL ‘says nothing about fundamental rights, equality, or justice’ / ‘The rule of law is essentially a negative value’

Further reading - In Defence of the Political Constitution, Tomkins (2002) - overview

Tomkins - skeptical of the courts as RofL guardians / political accoutnability > / pro-political constitutionalism

Further reading - In Defence of the Political Constitution, Tomkins (2002) - Quotes (located, protected from…)

Tomkins - ‘the constitution is located primarily in political institutions’ / ‘politics is in need of defending from the law and from liberal-legalism’