Parliamentary Sovereignty - Lecture 3

What is the legal doctrine of the sovereignty of Parliament / Legal Sovereignty? - Diceyan theory on parliamentary sovereignty

Dicey’s rule involves two aspects -

1. Parliament can make or unmake any law (positive aspect)

2. No body or person can override or set aside an AoP (negative aspect)

Case of Proclamation - case/example of Parliamentary Sovereignty - explain the context, case and relevancy

Context and outcome → preventing the monarch from passing or making legislation without the approval (such as levying money and increases taxes for creating new ships) or confirmation of the courts and parliament and can't change law by the king's proclamations

Ellen Street Estates v Minister of Health - case/example of Parliamentary Sovereignty - explain the context, case and relevancy

Context → The case is about the compensation for people who had their land taken. A few years later, a new legislation is implemented which contradict the previous legislation and is MORE favorable to land owners who had their land taken. The old legislation is void and overridden by the NEW legislation.

Outcome → The court disagreed with this take, stating that traditional view on parliamentary sovereignty means that the older legislation gives way and allows the new legislation to dominate.

Quotations → It is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal.

British Railways Board v Pickin - case/example of Parliamentary Sovereignty - explain the context, case and relevancy

Context → The BRB argued that the legislation was invalid and that parliament was naïve in their interpretation of legislation.

Outcome → It was concluded that if there is issues with legislation, it must be taken up with parliament. The Courts are not competent to question the validity of an Act of Parliament

Lord Stephens in Re Allister comments on Diceyan theory on Parliamentary Sovereignty?

He affirmed Dicey’s rule

• He stated that “the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme […] The modification of article VI of the Acts of Union does not amount to a repeal of that article […] but are modified to the extent and for the period during which the Protocol applies”

What is the relationship between international law and parliamentary sovereignty?

• Parliamentary sovereignty does not conflict with international law, because sovereignty is merely concerned with UK legislation and not internationally

• Parliamentary sovereignty means that the UK could pass legislation and acts that breach international law, making the UK government complicit but the law would still be relevant and implemented by the courts generally,

• Any treaty or legislation which the UK has NOT bound to statute hold no power against the UK irrespective and parliamentary sovereignty means that the UK could logically override international law such as refusing custom checks and it could be implemented into law, but there would be political consequences such as sanctions

R(SC) v SSWP on the relationship between international law and parliamentary sovereignty?

R(SC) v SSWP outlined “treaties are not part of UK law and give rise to no legal rights or obligations in domestic law”

Lord Scott in AF (No 3) on the relationship between international law and parliamentary sovereignty?

Lord Scott explained that 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.

• “unless the exclusion could be justified under article 15 of the Convention, would leave this country in breach of its treaty obligations. But the courts would be bound, none the less, faithfully to apply the legislation”

Jennings on the manner and form theory of Parliamentary Sovereignty

Jennings believes that -

• Parliamentary sovereignty is recognized by common law courts

• Parliament can bind itself as to manner and form.

Wade on the manner and form theory of Parliamentary Sovereignty

Wade believed -

• Sovereignty is a political fact, not a rule of law

• Sovereignty is a rule that parliament cannot bind its successors, whether as to the manner or the form or legislation or as to anything else (eg changing what constitutes parliament)

• The Parliament Acts 1911 and 1949 in substance created a form of delegated legislation, not a change to the manner that Acts of Parliament are enacted

Goldsworthy on the manner and form theory of Parliamentary Sovereignty

Goldsworthy believes that -

• manner and form is limited to restrictions on parliament that are purely procedural or formal, which do not diminish parliament’s “substantive power to change the content of the law”, including referendum or super-majority requirements.

  • This means that parliament is giving up SOME of it's sovereignty, but you cannot do that as it restricts the principle of parliamentary sovereignty and can ONLY be PROCEDURAL changes

Gordon on the manner and form theory of Parliamentary Sovereignty

Gordon believes that -

• parliament can ONLY bind itself to procedural requirements, but parliament will NOT be prevented from achieving what they want to achieve - it would not infringe on it's sovereignty or limit it

• (Contrasts to Goldsworthy)

What are examples of ‘manner and form’ theory in Parliamentary Sovereignty? The relevant doctrine?

1. implied repeal → this is where there is NO clear indictation that the Act has been repealed, it is only done through a NEW legislation

2. express repeal → when the government clearly states that the act has been repealed

What is the statute which requires clear words to change statute?

Interpretation Act 1978 - Interpretation Act sets out a number of legal rules of ways in which Parliament is constrained by it's usage of language in Acts of Parliament and making sure that it is written in a way that is clear.

R v Secretary of State for the Home Department, Ex p Simms and rules regarding clear words and parliamentary sovereignty / explain context and outcome

Context → A general statutory power to make rules for the good order of prisons, and rules made thereunder which restricted prisoner access to journalists.

Outcome of the case → it would contrive art 10 for prisoners to be restricted from speaking to journalists if seeking to expose a miscarriage of justice and therefore the statute did not authorise restrictions to this extent.

Quotations → Lord Hoffmann stated -

• “The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost”

• “In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

‘Mannner and form theory’, parliamentary sovereignty and it’s relation to requirements for referendums

1. Acts of Union between England and Scotland

   • constrains the UK Parliament, such as explicitly protecting the autonomy of the Scottish legal order

2. Northern Ireland Act 1998

3. Scotland Act 1998

4. Government of Wales Act 1998

   • All these following statutes outline that a majority of people must vote in favour to leave the UK as a part of the referendum

     • such as Northern Ireland returning to Ireland

     • such as the Scottish Parliament and Government to be abolished

Lord Hope in Jackson v Attorney General - commentary on implied repeal and parliamentary sovereignty

Lord Hope stated

• “Parliament can entrench an Act of Parliament. It is impossible for Parliament to enact something which a subsequent statute dealing with the same subject matter cannot repeal.”

Factortame case - commentary on implied repeal and parliamentary sovereignty? / context and outcome

Context → Parliament implemented legislation to prevent Spanish fishermen from exploiting EU ties to then fish in British waters, but this was held to go against prior EU legislation and discriminatory towards the member states.

Outcome → These provisions were held to mean that any Act of Parliament, whether enacted prior to or subsequent to the 1972 Act, had to be compatible with EU law. Any statute that was not compatible with EU law was “disapplied” by the UK courts.

What are Henry VIII clauses?

Henry VIII empower officials to modify or repeal Acts of Parliament.

Thoburn case and it’s importance regarding parliamentary sovereignty and henry VIII

Context → There was a sale of food in market in which the units of measurements were changed into the metric system. The regulation was brought into effect to the EU directives and this was done with Henry VIII clauses. In the 2000s, HVIII powers were used in which invalidated the old legislation which allowed the old metric form and replaced it with the EU approved one.

Outcome → parliament CANNOT bind itself to old legislation from previous administrations/ parliamentary session periods.

Importance → But what about HVIII clauses that purport to confer such a power in respect of Acts of Parliament not yet passed? Would not such subsequent statutes impliedly repeal the HVIII power? = In the Thoburn case, the court concluded ‘no’

What are examples of constitutional statutes?

• Magna Carta

• Devolution

• Acts of Union (yet overthrown by the withdrawal act)

Might the court refuse to apply an act of parliament in extreme reasons? under what reasons?

when the court does not allow -

1. removing access to justice, without any alternative to courts

2. attempts to oust the jurisdiction of the courts

Moohan v The Lord Advocate on Parliamentary Sovereignty and the Court

Moohan v The Lord Advocate outlined -

• “a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful.”

Can Parliament change itself or the process of making Acts of Parliament? The Parliament Acts

Parliament Act 1911 → HOL does not have a say on money bills or any other public law bill, unless it is intended to extend the life of government which is NOT permissible

• the 1911 act does not allow permit an amendment of itself

Attorney v Jackson → The attempt to ban hunting with hounds and this went through HOL twice - there was an issue as the 1949 Act came after the 1911 Act, and the 1911 Act did NOT allow amendments to itself.

What is the traditional principle when it comes repealing statute and applying a new one?

• it was obliged to treat that document as legally binding, unless it had been repealed by a later Act.

• when there was a conflict between an older and a newer statute, the newer statute took precedence: conflicting rules of the earlier statute were impliedly repealed.

Can Parliament limit itself? (or the ‘manner and form’ theory) - Barber’s opinion

Barber states -

• The court’s inability to rule that a statute was beyond the power of Parliament, coupled with the rule of implied repeal, entailed that Parliament could not effectively impose substantive limits on itself.

• A statute that purported to deny Parliament the power to legislate in a specified area would be impliedly repealed (or could be expressly repealed) by any later statute on the same subject matter)

Can Parliament limit itself? (or the ‘manner and form’ theory) - Heuston’s opinion

Heuston states -

• It could introduce ‘manner and form’ restrictions, requiring that, perhaps, a future measure would require the support of two-thirds of the Commons before becoming law, or the support of a majority of the population in a referendum.

• whilst Parliament could not place substantive limits on its future selves, it could determine the process by which these parliaments could change the law

  • (procedural requirements = substantive limit)

Can Parliament limit itself? (or the ‘manner and form’ theory) - Alison Young’s opinion

Alison Young argues -

• manner and form conception of sovereignty effectively makes Parliament’s capacity to bind itself dependent on the joint action of Parliament and the courts

• Parliament can attempt to entrench, but the success of entrenchment will depend on the court’s willingness to interpret the rule as redefining Parliament within a given area of law.

Jackson v Attorney General - case on Parliamentary sovereigny and ‘manner and form’

Context → Supporters of foxhunting sought to challenge the restrictions placed on that activity by the Hunting Act 2004, a statute which was passed under the Parliament Act 1949. The fox hunters argued about the validity of the 1949 Act: they argued that as the 1949 Act was outside the powers conferred by the 1911 Act.

Outcome → Parliament Acts could indeed be considered ‘enacted law’ and as the Hunting Act 2004 was lawfully passed it was valid law.

What is the Parliament Act 1911 and Parliament Act 1949 about?

• The Parliament Act 1911 created a mechanism whereby statutes could be passed without the consent of the House of Lords. The Lords could delay bills for two years, spread over three sessions, but if the Commons persevered, the bill would become a law.

• The Parliament Act 1949 reduced the lapse of time from two years to one (relating to parliamentary sessions and limiting powers of the Lords to delay bills)

Did EU membership require change to the traditional conception of Parliamentary Sovereignty?

Yes, it did -

• membership brought with it the requirement that domestic courts give European law priority over conflicting rules of national law

• Articles take precedence over conflicting rules of national law and it is the duty of national courts to apply these European rules in preference to their domestic law

  • Section 2(4) of the European Communities Act 1972 asserted that any statute ‘passed or to be passed . . . shall be construed and shall have effect subject to the foregoing provisions of this section’; that is, subject to the incorporation of European law into the UK legal systems

  • section 2(2) and S(4) of the European Communities Act 1972 empowered the executive to alter statutes to bring UK law into line with its Community obligations. (This is an example of the Henry VII clause)

Laws in Thoburn case on Parliamentary Sovereignty and ‘constitutional’ statutes versus ordinary statutes (manner and form theory?)

Laws stated -

• The distinction between ‘constitutional’ and ‘ordinary’ statutes in the UK is that constitutional statutes can only be repealed expressly, or by specific provision, not impliedly like ordinary statutes

Lord Hope in H v Lord Advocate on constitutional statutes and parliamentary sovereignty

Lord Hope stated that -

• the Scotland Act 1998 could not be altered other than by express enactment

Privacy International on the common law limiting statutes based on meaning or application?

Carnwath in the Privacy International case argued, the courts are not engaged in an ordinary exercise of statutory interpretation, seeking to give effect to the policies chosen by Parliament.

• Important → the common law presumption against such exclusion can only be overcome with the clearest and most explicit words.