Parliamentary Sovereignty Notes

Parliamentary Sovereignty

Historical Introduction to Parliamentary Sovereignty

• Sovereignty – Supreme political authority.
• Thinkers on Sovereignty:
  • Thomas Hobbes (The Leviathan 1651): Man's life is solitary, poor, nasty, brutish, and short.
  • Jean-Jacques Rousseau (The Social Contract & Discourses 1762): General will of people that State becomes agent and ruler.
  • John Locke (Two Treaties of Government): People hold the sovereign power.
  • Thomas Paine (Rights of Man 1791): Rights of the individual given central importance.

Legal Theory & Sovereignty

• John Austin (The Province of Jurisprudence Determined 1832): Law is the command of the Sovereign backed by sanction; the sovereign is the ultimate source of law.
• H.L.A. Hart (The Concept of Law 1961): Rules not commands, namely primary (impose duties) and secondary (regulate primary) rules.
• Hans Kelsen (Pure Law Theory 1967): The network of norms, the Grundnorm (basic norm) being the source of sovereign power, not necessarily a law but a foundational assumption that explains the whole system.

Grants of Independence

• The Statute of Westminster 1931: No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested and consented to the enactment thereof.

Examples of Parliamentary Supremacy

• The Act of Settlement 1700
• The Septennial Act 1716
• Parliament Acts 1911 and 1949
• Island of Rockall Act 1972
• European Communities Act 1972
• Representation of the People Act 1832
• House of Lords Act 1999
• War Damage Act 1965
• Scotland Act 1998
• Government of Wales Act 1998
• Northern Ireland Act 1998

Sovereignty and Written Constitutions

• Usually established by:
  1. Independence
  2. Revolution
• Autochthonous: From the native authority of the people.
• A constant reminder of the will of the people and restraints that imposes on government.

The Source of Sovereignty in the UK

• Key – acceptance by judges.
• Sovereignty may be lost by:
  1. Parliament decides to abolish sovereignty of Parliament tested through a referendum.
  2. Judiciary undergoes a ‘Revolution’ and accepts that Parliament no longer the sovereign law-making body.
• Political sovereignty vests with the people, legal sovereignty with parliament.

The Orthodox Nature of Parliamentary Sovereignty

• Dicey and Sovereignty:
  • Parliament is the supreme law-making body and may enact laws on any subject matter.
  • No parliament may be bound by a predecessor or bind a successor.
  • No person or body – including a court of law – may question the validity of parliament’s enactments.

Scope of Parliamentary Power

• Parliament may alter its term of office.
• Parliament may alter the succession to the throne.
• Reconstitute itself.
• Alter its own powers.
• Grants of independence.
• Retrospective law.
• Legislate with extra-territorial effect.

Illustrative Case: Madzimbamuto v. Lardner-Burke [1969]

• Arising from the unilateral declaration of independence in 1965 by the Rhodesian government.
• Lord Reid: It is often said that it would be unconstitutional for the United Kingdom to do certain things, meaning that the moral, political, and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.

Supremacy of Acts of Parliament

• Acts of Parliament alone are supreme, not:
  • Resolutions
  • Proclamations
  • Treaties

Doctrine of Implied Repeal

• Limited sovereignty is a contradiction in terms.
• Judge gives effect to the rule against parliament being bound by previous parliaments or being able to bind subsequent parliaments. Guarantees contemporary sovereignty.
• Judges apply the latest statute in time:
  • Vauxhall Estates Ltd v. Liverpool Corporation [1932]
  • Ellen Street Estates Ltd v. Minister of Health [1934] (both cases ascertain parliamentary sovereignty, even though being unfair to the landowners)

Constraints on Parliamentary Sovereignty

• Grants of Independence
• The Statute of Westminster 1931
  • No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

Practical Limitations on Sovereignty

• British Coal Corporation v. The King 1933 – Judicial Committee of the Privy Council upheld the decision by the parliament of Canada to abolish the appeal to JCPC.
• Blackburn v. Attorney-General 1971 – questioning the voluntary relinquishing of parliamentary sovereignty by joining the European Economic Community.
• Both cases tell us that there are practical limitations on the exercise of sovereignty.
• Legal Theory must give way to practical politics.

Union with Scotland

• The Act of Union with Scotland, Art 1 – The unions between England and Scotland shall be for ‘ever after.’
• MacCormick v. Lord Advocate 1953 (why Queen Elizabeth should be the II in Scotland?..) Lord Cooper:
  • ‘I have not found in the Union legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that Parliament should be free to alter the Treaty at will.’
  • Also – if parliamentary sovereignty is an English concept, why the joint English-Scottish parliament should assume the same characteristic?

Scottish Court Challenges

• Sillars v. Smith 1982: the Act of Parliament could not be competently challenged in a Scottish court.
• Lord Campbell: ‘All that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can enquire into the manner in which it was introduced into parliament, what was done previously to its being introduced, or what passed in parliament during the various stages of its progress through both Houses of Parliament.’

The Union with Ireland 1800

• Art 5 – United Church of England and Ireland that ‘shall be and shall remain in full force forever … deemed to be a fundamental part of the union.’
• Note however Ex Parte Canon Selwyn – Where the Irish Church Act 1869 (disestablishing the Irish Church) was held to be supreme and could not be questioned in a court of law (even by a priest).

Challenges to Validity of Acts of Parliament

• The Prince’s Case (1606)
  • The three ought to assent namely, the King, the Lords and the Commons.
• Dr. Bonham’s Case (1610)
  • Common law controls the acts of parliament and would adjudge it to be void.
• Pickin v. British Railway Board (1974) – the contemporary judicial view:
  • In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete.

Manner and Form Limitations

• Power of the electorate (nearing elections).
• Restrictions by virtue of International Relations.
• Can Parliament bind itself???
  • In terms of redefining itself.
  • Setting out manner and form provisions that must be followed.

Parliament Binding its Successor: Attorney General for New South Wales v. Trethowan [1932] AC 526 (Australia)

• The first relevant Act in this case is the Colonial Laws Validity Act 1865, an Act of the UK Parliament which limited the powers of subordinate colonial legislatures.
• The powers of the New South Wales legislature were laid down in the Constitution Acts 1902 to 1929. In 1929 a new Constitution Act was passed which provided for special procedures to be followed (a) in any attempt by a future Parliament to abolish the Upper House and (b) in repealing the 1929 Act.
• Following change in government, the new government attempted to pass an Act ignoring the requirements of the 1929 Act.
• The central question is, did that new Parliament have the power to act in defiance to the earlier Act?
• Held – Act was not repealed, the earlier 1865 Act required that the 1929 Act be followed.

COMMON LAW LIMITATIONS

• Dr. Bonham’s Case (1610) (imprisoned for practicing without a license, not malpractice) – Common law controls the acts of parliament and would adjudge it to be void
• Grants of Independence:
  • British Coal Corporation v. The King
  • Blackburn v. Attorney-General

COMMON LAW LIMITATIONS: R v Secretary of State for the Home Department ex parte Simms (2000)

• Case concerned a prisoner’s right (under Article 10 of the European Convention) to communicate with journalists with a view to challenging his conviction for a crime. On parliamentary supremacy and the status of the Human Right Act, Lord Hoffmann was to state that:
  • Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to 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. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words…. 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. In this way the courts of the UK, through acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

Application in Scotland

• Union with Scotland 1800
  • The Act of Union with Scotland, Art 1 – The unions between England and Scotland shall be for ‘ever after.’
  • MacCormick v. Lord Advocate Lord Cooper: ‘I have not found in the Union legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that Parliament should be free to alter the Treaty at will.’

Application in Scotland: Sillars v. Smith

• Lord Campbell: ‘All that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can enquire into the manner in which it was introduced into parliament, what was done previously to its being introduced, or what passed in parliament during the various stages of its progress through both Houses of Parliament.’

Supremacy of EU Law

• The issues which require explanation are:
  • The extent to which the judges were prepared to accept and apply Community law;
  • The manner in which, and extent to which, inadvertent or deliberate parliamentary Acts were reconciled with the requirements of Community law; and
  • Whether membership of the Community entailed an irrevocable relinquishment of parliamentary supremacy.

EU Law and the ECA 1972

• S.2 ECA 1972: All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this sub-section applies.

Parliamentary Sovereignty and EU Law: Primacy of Community Law

• S.2(4) provides for the primacy of Community law:
  • The provision that may be made under sub-section (2) above includes, subject to Schedule 2 of this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section.

EU Law: Van Gend en Loos (1963)

• A case which involved a reference to the ECJ from the Dutch courts. From this case, many significant later developments of Community law can be seen to originate.
• Under Article 30 of Treaty on the Functioning of the European Union (TFEU) (formerly Article 12): Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
• Before 1958, and the coming into force of the EC Treaty, the Dutch firm of Van Gend en Loos had been importing glue from Germany, applying a customs duty of three per cent. In 1959, the Dutch government ratified an agreement with other countries establishing an eight per cent duty. The company protested to the Customs Court, relying on the direct effect of Article 12 of the EC Treaty. The Court referred the matter to the ECJ under Article 177 (now Article 267). The principal question for the court was whether, as claimed, Article 12 had direct effect on the legal position on the company. The Treaty Article did not stipulate its legal effect, and Article 189 of the EC Treaty (now Article 288 TFEU) refers only to regulations having direct applicability. The ECJ held:

Conditions for Individual Enforceable Rights (Van Gend en Loos)

• if a Treaty provision is to confer individual enforceable rights, it must indicate that it applies not just to Member States but also to individuals within the state.
• the provision must be clear and precise.
• the provision must be unconditional and unqualified and not subject to any further measures on the part of Member States.
• the provision must be one which does not leave any substantial latitude or discretion to Member States.
• Specifically in relation to Article 12, as it then was, the ECJ held that the text was clear and unconditional, that it required no legislative intervention by the Member State and that the Member State had no power to subordinate Article 12 to its own law. Thus, it can be seen that both provisions in the Treaty and regulations are capable of having direct effect if they satisfy the requirements laid down by the ECJ

EU Law: Van Gend en Loos v Nederlandse Tariefcommissie (1963)

• The ECJ enunciated the view that, by signing the treaties, the Member States had created a new legal order, in which individual states had limited their sovereign rights.
• Costa v ENEL (1964), this view was reaffirmed by the ECJ:
  • The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of Community law cannot prevail.

EU Law: Internationale Handelsgesellschaft mbH v EVST (1970)

• Takes the principle of Union supremacy further. Under Community law, in order, to export produce, the company was required to obtain a license, for which a ‘permanent deposit’ had to be paid. If the goods were not exported within the license period, the deposit was to be forfeited. The company paid the deposit, failed to complete the export of maize, and forfeiture was made. The firm sued the agency involved for return of the deposit, arguing that the forfeiture was contrary to the Constitution of the Federal Republic of Germany. The Constitution provided that powers could be transferred to international organizations, but that no transfer could be made of powers which the central government itself did not have. Since the retention of the deposit was contrary to the Federal Constitution, it could not, according to German law, be lawful under the law of the Community. The matter was referred to the ECJ under then Article 177.
• ECJ held:-
  • that giving effect to rules or concepts of national law contained even within the constitution of a state, for the purposes of judging the validity of Community measures, would have an adverse effect on the uniformity and efficacy of Community law. The validity of Community measures could be judged only in the light of Community law and could not be affected by allegations that the measures ran counter to fundamental rights as formulated by the constitution of the Member State.

EU Law: Simmenthal case (1976-80)

• In this case, an Italian company imported meat from France. A fee was charged for the public health inspection of the meat. Simmenthal, the Italian importer, felt that the veterinary inspections of the meat were obstacles to the free movement of goods and were forbidden by Community law. An art. 177 reference was made on the question of how to reconcile the conflict between certain rules of Community law and subsequent inconsistent national legislation.
• The ECJ held:
  • that regulations takes precedence over previous and subsequent domestic legislation and that a national court, whatever its position or role in the national judicial hierarchy, must set aside any provision which conflicts with Community law and apply Community law in its entirety, without waiting until the domestic legislation had been set aside by the Constitutional Court.

Parliamentary Sovereignty and EU Law: Impairment?

• Unimpaired:
  • UK’s voluntary accession to the EU proves this.
  • R v. Secretary of State for Transport ex parte Factortame
    • was a judicial review case taken against the United Kingdom government by a company of Spanish fishermen who claimed that the United Kingdom had breached European Union law (then Community Law) by requiring ships to have a majority of British owners if they were to be registered in the UK).
• Impaired:
  • Wade’s argument – parliament has succeeded in entrenching a provision (S.2(4)) to bind future parliaments.

Note: European Union (Notification of Withdrawal) Act 2017 – confers power on the PM to notify, under Art 50(2) of the Lisbon Treaty of the TU, the UK’s intention to withdraw from the EU. Note also the withdrawal from the EU through the European Union (Withdrawal) Act 2018

Impact of Devolution on Parliamentary Sovereignty

• Devolution
• UK parliament remains sovereign
• S.28 (7) Scotland Act ‘… this section does not affect the power of the Parliament of the UK to make laws for Scotland’
• Two aspects of sovereignty remain in theory:
  • The first is the ability – notwithstanding the political reality – to legislate for Scotland contrary to Scottish wishes.
  • The second is the power to abolish the Scottish Parliament and to reclaim the powers devolved.

The Human Rights Act 1998

• The Human Rights Act 1998 preserves parliament’s theoretical sovereignty.
• The Act provides that judges in the higher courts may issue ‘declarations of incompatibility’ between statute and the Convention rights incorporated under the Act.
• Where such a declaration is made, the matter is then referred to the executive, which may choose whether and how to amend the law to bring it into line with Convention rights.
• Where proposals for legislation are introduced into parliament, the relevant minister must declare whether the Bill in question accords with Convention rights. If it does not, an explanation as to the necessity for the legislation must be given.
• Judges do not strike down legislation
  Shift of judicial reasoning which used to focus on the ‘latest will of parliament’

The Constitutional Statute

• European Communities Act (ECA) 1972 has (had?) a special status
• R v Secretary of State for the Home Department ex parte Simms (2000):
  • Fundamental rights cannot be overridden by general or ambiguous words…. 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

The Constitutional Statute: Thoburn v Sunderland City Council (2002)

• In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of which we would now regard as fundamental constitutional rights
• Ordinary statutes may be impliedly repealed. Constitutional statutes may not.