Parliamentary Sovereignty Notes

Parliamentary Sovereignty

The Orthodox Understanding of Parliamentary Sovereignty (PS)

• Core Principles (as defined by A.V. Dicey):

  • Parliament can make or unmake any law whatsoever. This includes the power to create new laws, amend existing laws, or repeal laws entirely.
  • No Parliament can bind its successors. Each Parliament is supreme and cannot be limited by the actions of previous Parliaments. Future Parliaments are free to change or repeal any laws enacted by their predecessors.
  • No person or body may question an Act of Parliament. Once a law has been duly enacted by Parliament, its validity cannot be challenged in any court or by any other body.

• Further Principles Derived from the Core Principles:

  • Doctrine of Implied Repeal: If two Acts of Parliament conflict, the later Act prevails over the earlier one. This is based on the principle that Parliament cannot bind its successors.
  • The Enrolled Bill Rule: Once a bill appears on the Parliament Roll (an official record of Acts of Parliament), courts and other bodies must treat it as enacted law. They will not inquire into the processes by which the Act was passed.
    • An important consequence is that courts will not examine whether appropriate legislative procedures have been followed (Pickin v British Railways Board [1974] AC 765, Lord Reid). It's Parliament's responsibility to regulate its own proceedings (Art 9 of the Bill of Rights).

Historical Basis of PS

• Origins in the Struggle Between the Monarch and Parliament:

  • Parliamentary sovereignty emerged from a power struggle between the Monarch and Parliament.
  • Monarchs often asserted the power to act without Parliament's consent, leading to conflict.
  • The 17th century saw civil war, culminating in Parliament's victory after the Glorious Revolution.

• The Bill of Rights 1689:

  • Parliament dictated terms to the new Monarch, which were enshrined in the Bill of Rights 1689 thereby consolidating Parliamentary Sovereignty.

• Key Provisions of the Bill of Rights:

  • Article I: Declares illegal the Monarch's power to suspend laws without Parliament's consent.
  • Article II: Declares illegal the Monarch's power to dispense with laws.
  • Article IX: Guarantees freedom of speech and debates in Parliament without being questioned in any court.

Philosophical Arguments For and Against PS

• Morally Neutral Fact?

  • Some theorists (Austin, Hart, Wade) argue PS is simply a morally neutral fact about the constitution.

• Democratic Justification:

  • Some argue PS is justified by democracy, enabling a 'self-correcting' democracy (Craig), 'democratic dialogue' (Young), and promoting direct democracy and accountability (Gordon).

• Critiques of Democratic Justification:

  • Democracy can imply the power of the majority over the minority. But what if democracy also entails rights against the majority (Dworkin, as in the US model)?

• Legal Limits on PS:

  • Some argue that principles like democracy and the rule of law place legal limits on PS (Sir John Laws, Trevor Allan, Lakin). In this view, PS gives way to the rule of law.

Limits of PS: The Orthodoxy

• Formal vs. Moral/Political Limits:
  • Formally (or technically), Parliament's power has no legal limits if it is truly sovereign. For example, it could theoretically legislate that all blue-eyed babies be put to death.
  • However, there are moral and political constraints:
    • Moral Limitations: Parliament cannot legislate in a way that goes against acceptable moral standards.
    • Political Limitations: Parliament is subject to periodic elections, and cannot afford to legislate against the will of the electorate.
  • Some academics (e.g., Mark Elliott) suggest a constitutional convention prevents Parliament from enacting morally abhorrent laws.
  • Practical Limitations: For example, Westminster's power over Dominions of the Crown (like Canada, Australia) is limited by their ability to ignore Westminster.

Manner and Form Limitations

• The Enrolled Bill Rule: How Absolute?

  • The Enrolled Bill rule links a statute's validity to its appearance on a published list.
  • Legislation should only appear on the Parliamentary Rolls after following certain legislative procedures, thus defining the proper manner of legislation. Acts must also take a particular form (statutory format, clear language).
  • Do these requirements of manner and form impose limits on PS?

• Debate on Changing Procedures:

  • Scholarly disagreement exists on how far Parliament can change its procedures.
  • The 'old' view (Dicey) suggests no parliamentary power to change procedures.
  • The 'new' view (Jennings, Heuston) argues the power to change procedures is necessary to guard against abuses of sovereignty.
  • More recently, Goldsworthy questions whether a change diminishes Parliament's power to legislate, while Gordon asks if the change makes it 'effectively impossible' to legislate (e.g. requiring a referendum).

• Case Example: R (on the application of Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262

  • The Parliament Act 1949 amended the legislative procedure to curtail the veto power of the House of Lords, using the special procedure of s 2(1) of the Parliament Act 1911.
  • Using the 1949 procedure, the House of Commons pushed through the Hunting Act 2004 over the objections of the House of Lords.
  • The claimant argued that the Hunting Act was invalid because Parliament lacked the power to undercut bicameralism.
  • The House of Lords dismissed the claim, with a majority basing their conclusion on the orthodox understanding of PS.
  • The Parliament Acts created a 'new way of enacting primary legislation' (Lord Bingham).

• Obiter Dicta in Jackson Case:

  • Several Law Lords claimed (in obiter dicta) that primary legislation is subject to limitations of content (not just manner and form) and that the judiciary is empowered to disregard any primary legislation that flouts those limitations.
  • Lord Steyn suggested that Parliament cannot abolish ‘judicial review or the ordinary role of courts’.
  • Baroness Hale suggested that courts could disregard any attempt to shield primary legislation affecting fundamental rights from any form of judicial scrutiny.
  • Lord Hope suggested that the rule of law is ‘the ultimate controlling factor on which our constitution is based’.

Can Parliament Limit its Own Power?

• Broader Question Raised by Jackson:

  • Can the Parliament of today bind future Parliaments?

• 'Self-Embracing' vs. 'Continuing' Sovereignty:

  • One view: Parliament possesses 'self-embracing' sovereignty, allowing it to limit its own power in substance and even enact a written constitution.
  • The orthodox position: Parliament possesses 'continuing' sovereignty and cannot impose limitations on future Parliaments except concerning the manner and form of legislation (Hart, The Concept of Law).

• Thoburn (Metric Martyrs) Decision:

  • Laws LJ stated that some statutes are 'constitutional,' touching on the relationship between the individual and the state (e.g., the European Communities Act 1972, the Human Rights Act 1998). Such statutes can only be expressly repealed.

• The European Communities Act (ECA) 1972:

  • The ECA (now repealed) provided that 'Any act passed or to be passed' must be read compatibly with EC law. Did this limit parliamentary sovereignty?
  • Sir William Wade vs. Lord Bridge in Factortame (No 2) illustrates different views on this issue.

Other Limitations on PS (Further Discussion in Later Lectures)

• Substantive Rule of Law:

  • If law, by definition, safeguards substantive, fundamental rights, then parliament cannot be sovereign (Professor Trevor Allan).
  • This view is taken by 'substantive' rule of law theorists.

• Statutory Interpretation:

  • How courts interpret statutes arguably limits Parliamentary sovereignty (e.g., Anisminic, UNISON).

• Human Rights Act 1998:

  • Sections 3 and 4 of the Human Rights Act 1998 arguably limit PS, although Parliament itself set these limits.

Bibliography

• Paul Craig, Dicey: Unitary, Self-Correcting Democracy and Public Law
• J Austin, The Province of Jurisprudence Determined
• H.L.A. Hart, The Concept of Law
• HWR Wade, 'The Basis of Legal Sovereignty'
• M Gordon, Parliamentary Sovereignty in the UK Constitution
• J Goldsworthy, Parliamentary Sovereignty,
• R Dworkin, Freedom's Law ch 1
• S Lakin, 'Debunking the Idea of Parliamentary Sovereignty'
• AL Young, Parliamentary Sovereignty and the Human Rights Act
• WI Jennings, The Law and the Constitution
• RFV Heuston, Essays in Constitutional Law
• Sir John Law, 'Law and Democracy'
• Mark Elliott, Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention