Parliamentary Sovereignty Notes

Parliamentary Sovereignty: Definition, History, Justifications, Limitations

Definition of Parliamentary Sovereignty

  • Classical statement by Professor AV Dicey (1885):
    • Parliament can make or unmake any law.
    • No Parliament can bind a future Parliament.
    • No person or body can question the validity of an Act of Parliament.

Corollaries to the Principles

  • Doctrine of Implied Repeal: Incompatible Acts of Parliament result in the later one prevailing.
    • Parliament cannot bind its successors.
  • The Enrolled Bill Rule: A bill is formally enacted once it's on the Parliamentary Roll.
    • Courts won't investigate legislative procedure for impropriety.
    • Refer to Pickin v BRB AC [1974] 765 (Lord Reid) and Edinburgh and Dalkeith Rly v Wauchope (1842) 8 Cl. & F. 710 (Lord Campbell).
    • Parliament regulates its internal proceedings (Art 9 of the Bill of Rights).

Limits on Parliamentary Sovereignty

  • Distinction between legal limits and moral/practical/political limits.
  • Traditional theory acknowledges moral, political, and practical limits but not legal limits.
  • Mark Elliott: Parliament is constrained by constitutional conventions.
    • Example: Parliament will not legislate oppressively (see M Elliott, ‘Parliamentary Sovereignty and the new constitutional order: legislative freedom, political reality and convention’ (2002) 22 Legal Studies 340).
  • Lord Irvine: Parliament is bound by moral and political imperatives.
    • Moral imperative: legislate within acceptable morality standards.
    • Political imperative: face the electorate periodically (See Lord Irvine, ‘Judges as Decision-Makers’ [1996] PL 59).
  • Theorists maintain Parliament's legal power but recognize differing political realities.
  • Westminster Parliament's powers over former Dominions:
    • Statute of Westminster 1931 s4: UK Acts after 1931 don't extend to a Dominion unless expressly requested and consented to by the Dominion.
    • Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645, 723.

Historical Basis of Parliamentary Sovereignty

  • Power initially vested in the Monarch (Divine Right).
    • Sir Robert Filmer argued King's power traced back to Adam.
    • Blackstone's Commentaries on the Laws of England.
  • Absolute monarchical power:
    • King could do no wrong, answerable only to God.
    • Questioning King's authority was heretical.
    • Origins of 'natural law'.
  • Crown lost power to Parliament over time, but not smoothly.
    • James II used prerogative powers to avoid Parliament.
    • Struggle led to civil war and Glorious Revolution of 1688.
  • Bill of Rights 1689:
    • Marked the end of the Glorious Revolution.
    • Key provisions and effects:
      • Article I: Illegal to suspend laws by regal authority without Parliament's consent.
      • Article II: Illegal to dispense with laws by regal authority.
      • Article IX: Freedom of speech in Parliament cannot be questioned.
  • Bill of Rights determined:
    • Crown couldn't suspend or dispense with legislation.
    • Crown couldn't impose taxes without Parliament's consent.
    • Crown couldn't keep a standing army in peacetime without Parliament's consent.
  • Bill of Rights gave Parliament practical independence from the Crown:
    • Right to free speech in Parliament (art 9).
    • Right to determine its membership and regulate its affairs.

Justifications for Parliamentary Sovereignty

  • Some theorists see it as a morally neutral fact.
    • Herbert Hart: Part of the 'Rule of Recognition'.
    • Sir William Wade: Judges obeying statutes is the ultimate political fact (HWR Wade, 'The Basis of Legal Sovereignty' (1955) 13 CLJ 172).
  • Other justifications:
    • Paul Craig: Dicey's theory as a 'self-correcting' democracy.
      • Internal controls: parliamentary procedures, MPs' consciences.
      • External controls: general elections (P Craig, 'Dicey: Unitary Self-Correcting Democracy and Public Law' (1990) 106 LQR 105).
    • Alison Young: Serves democratic dialogue (A.L. Young, Democratic Dialogue and the Constitution (Oxford, Oxford University Press, 2017)).
    • Michael Gordon: Manner and form enhances democracy.
      • Referendums promote direct democratic decision-making (Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart Publishing 2015)).

Limitations on Parliamentary Sovereignty

Manner and Form Limitations
  • Orthodox theory: An Act is valid once it appears on the Parliamentary Roll.
  • Laws must pass through certain Parliamentary procedures (support of both Houses + Royal Assent).
  • Laws must take a particular form:
    • Clear and certain.
    • General.
    • Prospective.
    • Satisfy the requirements of the (formal) rule of law.
  • 'Manner and form' conditions may limit Parliamentary sovereignty.
  • Constitutional lawyers disagree on how far Parliament can change procedures without limiting sovereignty.
  • Substantive limits undermine PS.
  • Dicey: Parliament can't change procedures, as it would fetter future parliaments.
  • Jennings and Heuston disagreed.
    • Heuston: Manner and form theory guards against abuse of sovereignty, allowing procedures like referendums (RFV Heuston, Essays in Constitutional Law (2nd edn, Stevens & Sons 1964, 6).
  • Dicey-Jennings-Heuston debate (see J Goldsworthy and M Gordon).
    • Goldsworthy (supports Dicey): Procedure/form requirements are consistent with PS if they don't restrict content or diminish Parliament's power (J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (CUP 2010), 120, 198).
    • Gordon (supports Jennings): Parliament can enact any measure that doesn't make it 'effectively impossible' to legislate; this should be policed by politics, not judges (Michael Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart Publishing 2015)).
  • Can Parliament alter the manner or form of legislation?
    • Addressed in Jackson v Her Majesty’s Attorney-General [2005] UKHL 56 (See J Jowell ‘Parliamentary Sovereignty under the New Constitutional Hypothesis [2006] PL 526 and Lakin, ‘Debunking the Idea of Parliamentary Sovereignty: the Controlling Factor of Legality in the British Constitution’ [2008] Oxford Journal of Legal Studies, 1-26).
    • Attorney General: Parliament can enact legislation using the 1949 Parliament Act.
    • Lord Bingham agreed; others (Lords Hope, Steyn, and Baroness Hale) unsure.
    • Baroness Hale: Parliament can 'redefine itself' using current legislative procedure.
    • House of Lords adjudicating seemed surprising given the Enrolled Bill rule and Article 9 of the Bill of Rights 1689.
    • Lord Bingham: Court entitled to adjudicate due to legal question about statute interpretation.
    • Parliament Acts used more under New Labour (e.g., Northern Ireland Act 1998, European Parliamentary Elections Act 1999, Sexual Offences (Amendments) Act 2000, Hunting Act 2004).
    • HS2 judgment: Supreme Court examined hybrid Bill procedure (Regina (Buckinghamshire County Council and others) v Secretary of State for Transport; R (HS2 Action Alliance Ltd) v Same; Regina (Heathrow Hub Ltd and another) v Same [2014] 1 W.L.R. 324).
Statutory limitations
  • European Communities Act 1972:
    • Required future parliaments to conform to EU law.
    • Factortame No 2 judgment: House of Lords 'disapplied' a domestic Act (Merchant Shipping Act 1984).
    • Sir William Wade: 'Constitutional revolution' and the end of PS.
    • Lord Bridge: temporary surrender of law-making powers.
    • Parliament repealed the ECA 1972 via the European Union (Withdrawal) Act 2018.
    • Manner and Form theorists: ECA 1972 was a permissible change to legislative forms/procedures.
  • The Human Rights Act 1998:
    • Section 3: Judges must read legislation in accordance with ECHR rights.
    • Section 4: Allows judges to make a 'declaration of incompatibility'.
    • Some argue that judges have strayed beyond interpretation into illegitimate amendment, undermining PS.
    • Section 4 rarely used, but Parliament always rectifies incompatibilities.
    • Some commentators (e.g., David Dyzenhaus, Aileen Kavanagh) argue judges have a 'strong' constitutional review power.
Substantive limitations; the Rule of Law v Parliamentary Sovereignty
  • Theorists disagree on whether Parliament can change procedures/forms consistently with PS.
  • Defenders of PS agree that PS cannot permit substantive limitations.
  • 'Substantive' rule of law theorists (e.g. Trevor Allan) argue that the rule of law is sovereign, not parliamentary sovereignty.
  • Cases involving 'constitutional rights' challenge the notion that Parliament can 'make or unmake any law'.

Models of Parliamentary Sovereignty

  • Herbert Hart distinguishes between:
    • Continuing sovereignty.
    • Self-embracing sovereignty.
  • Does Parliament's absolute sovereign power entail that it can limit its own power (self-embracing sovereignty)?
  • Or does Parliament's power entail that it can't do anything that limits its own power (continuing sovereignty)?
  • Many theorists (e.g., Mark Elliott, Geoffrey Goldsworthy, Christopher Forsyth, Alison Young) argue for continuing sovereignty.
  • If there were substantive limitations, Parliament would have self-embracing sovereignty or would no longer be sovereign.