Parliamentary Sovereignty

AV Dicey Parliamentary Sovereignty

right to make or unmake any law whatever; and further that no person or body is recognised … as having a right to override or set aside the law of Parliament

Can parliament bind its successors?

no

Doctrine of Implied repeal

a later act repeals an act earlier act where there is a conflict

What is the source of parliamentary authority?

1485 changed from the monarch enacting the law

Steyn in Jackson

‘It is a construct of the common law. The judges created this principle’

‘supremacy of parliament is still the general principle of our constitution’

Goldsworthy

Questions what gives authority to judges and parliament - they cannot confer it upon themselves

continuing sovereignty

parliament has unlimited authority but cannot place limits on itself

procedural but not substantial limitations

continuing sovereignty - undermined

decolonisation, devolution, supreme effect of EU law, parliament acts

Self-Embracing Sovereignty

parliament can restrict its own legislative authority by enacting procedures on how new legislation must be enacted

Proponents of self-embracing sovereignty

Jennings and Young

Membership of the EU

EU law can only enjoy status of domestic law as long as 1972 act continues to apply, dependant on the support of parliament

HRA 1998

HRA could be repealed

Sections 3 and 4 → judicial overreach

acts have been interpreted through case law for decades

Devolution

devolved bodies do not enjoy absolute legal sovereignty

‘sovereginty remains with the UK parl, scot parl power to legislate is not unconstrained, cannot make or unmake any law it wishes’

The Courts

sometimes decline to intervene/decide merits of a particular case (Nicklinson)

judicial activism

Lord Hope in Jackson

parl sov is no longer, if it ever was, absolute … it is no longer right to say that its freedom to legislate admits of no qualification whatsoever

Cherry/Miller (2) 2019

UKSC emphasises importance of parl sov in limiting prerogative powers

What happens once sovereignty is lost?

Cannot be regained - see EU law. In effect Brexit does not return sovereignty.

Hale in Jackson

Courts will treat with particular suspicion and may even reject any attempts to subvert the RoL by removing governmental action affecting the rights if individuals from judicial scrutiny

Lakin

Legality is a controlling factor in the british constitution

Royalist view

the power comes from the ‘king in parl’

Case of Proclamations

monarch cannot create new offence.

put prerogative under law and parliament alone can alter law.

BoR article 4

illegal for crown to seek to raise money without parl approval

R (Pretty) re assisted suicide

impossible for executive to grant immunity from statute

Act of Settlement 1700

judges office dependent on good behaviour

removal by parliament rather than exec

altered succession to the throne

cabinet government and democratic electoral system

bolstered political authority of parliament

Austin

in ever legal system there must be a sovereign

constitutional entity of authority

queen/king in parliament

Written Constitution

limits on legislature and entrusts courts to decides whether acts comply

power to legislate on constitutional matters

defamation act 1996 amended article 9 bill of rights

Septennial Act 1715

changed life span of parliament

International laws and treaties vs domestic law

cannot void AoP on the grounds that it contravenes principles of international law

Mortensen v Peters and Herring Fishery (Scotland) Act 1889

Chenney v Conn (taxes used to manufacture nuclear weapons)

Principle of statutory interpretation

assume that parl has intended to legislate in a manner which does not place the UK in breach of international obligations

Coke in Dr Bonham’s case (1610)

common law will control AoPs, and sometimes adjudge them to be utterly void… when an AoP is against and reason, or repugnant, or impossible to be performed

Laws LJ in R (Cart)

parl sov conditional on there being authoritative and independent judicial source of interpretation

Lord Hodge in Moohan

democracy, RoL and international norms could empower courts to declare legislation unlawful if parl sought to entrench its power

Bingham

judges did not establish parl sov so they cannot change it

Maugham LJ

parliament could not bind itself as to the form of subsequent legislation

self-regulation

privilege of parliament to regulate its own proceedings (not for Scottish parliaments)

Interpretation Act 1978

every act passed after 1850 = public act unless expressed to hte contrary

Lord Hope RoL in Jackson

RoL is the ultimate controlling factor on which our constitution is based

Factortame 1990

MSA had to be suspended following verdict of EU law

HoL held that they didn’t have the jurisdiction

domestic courts have duty to grant intertim relief to protect community rights in the face of potentially interferring with domestic law but courts required to disapply conflicting national law which would prevent such relief

Scotland Act 2016 and Wales Act 2017

devolved assemblies and governments, committed to by UK parl and govt, not to be abolished except via referendum of the national people

AXA 2011

Scottish Aspestos Act 2009 reversed UK judicial decision of Rothwell

in exceptional circumstances courts could invalidate legislation of devolved or central parliament such as something that attempted to abolish judicial review → leads to clash between PS and RoL

judicial review of Scottish parliament must be based on rule of law

UNCRC incorporation

apply presumption of reading legislation compatible with the rights of the child

outside legislative competence would lead UK courts to give effect contrary to parliament’s intention

Lord Reed UNCRC

UK parl reserved unqualified power to make laws for Scotland

Bingham in Robinson 2002

1998 act doesn’t set out all constit provisions applicable to NI but it is in effect a constitution

Elan-Cane 2021

X passports

limitations of the HRA → if interpreted as giving rights to find breaches of convention even where the ECtHR would hold UK law as conforming would be too expansive judicial powers

SC, CB, and 8 Children 2021

claimed 2 child limit against ECtHR

appeal dismissed → politically controversial question could not be answered by the courts, parls objective in keeping benefits fair (tax credits act 2002)

Thoburn 2002 (measures martyrs)

each right and obligation incorporated under ECA 1972 took precedent, anything inconsistent with domestic law either abrogated (given up) or modified

HS2

should this have been proceeded with an environmental assessment, would the hybrid bill procedurally comply

appeal dismissed

argument that limited engagement and debate

may be of political significance

likely to be influenced by the executive doesn’t prevent consideration of the legislature

Privacy International 2019

specialist tribunal under Regulation of Investigatory Powers Act 2000

SoS actions not to be subject to questions of the courts

could parl statute enable potential ousting of jurisdiction? appeal allowed

common law presumption against ousting jurisdiction - binding effect cannot be given to such clauses

parl intention of legal limits not consistent with courts lacking capacity to enforce limits

Sumption’s Dissent in Privacy International 2019

RoL sufficiently vindicated by the judicial character of IPT

Evans 2005

FOIA 2000 enables members of public to see documents held by many public bodies

Prince of Wales letters - meant to be politically neutral

AG issued reasonable grounds to refuse request

AG’s appeal dismissed → not entitled to issue certificate

would violate RoL of not being entitled to review

Mance and Hale in Evans 2005

exceptions would have to be exceptionally well-reasoned and close to the facts of the case

Lakin and Allan

common law constitutionalists → strong form legal constitutionalists

Ekins

political constitutionalist and strong supporter of Parliamentary sovereignty

common law constituitonalism

evolutionary, adaptation

rule of recognition

revolutionary decision, redefines an understanding and starts form a new point

Evans vs Jackson

prioritisation of RoL over PS

weaker in Evans