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Parliament Sovereignty - Background

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Parliament Sovereignty - Background 1Parliament Sovereignty - Background ‘Glorious Revolution’ of 1689 - The legislative must needs be the supreme, and all other powers in any members or parts of the society, derived from and subordinate to it.” (John Locke) Definition Dicey on Sovereignty The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to set aside the legislation of Parliament” Three key elements: 1. Parliament’s legislative competence. 2. Validity of an Act of Parliament cannot be challenged. 3. Parliament cannot limit future parliaments. 1. Legislative competency Parliament has unlimited legislative competence – omnicompetence – can make any kind of law. “It is often said that it would be unconstitutional for the United Kingdom Parliament 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” Madzimbamuto v Lardner-Burke [1968] AC 1062. ▪ Jennings – ‘If [the UK Parliament] enacts that smoking on the streets of Paris is an offence, then it is an offence’. But: AXA v Lord Advocate (2011) UKSC 46 – Supreme Court suggested there may be limits to the doctrine and where an Act of Parliament goes beyond the pale, the Court may be prepared to intervene. Legislation covered by the Parliament Primary legislation – Act of parliament ▪ Not ‘resolutions’ of a House ▪ ‘[T]he House of Commons is not the Parliament, but only a co-ordinate and component part of the Parliament. That sovereign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law, or place any one beyond its control.’ Stockdale v Hansard (1839) 9 Ad and E 1, 108-109 (Lord Denman CJ). ▪ Not secondary legislation – delegated legislation (minister given power to make certain law/things happen) - HM Treasury v Mohammed Ahmed [2010] UKSC 2 Case law Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & Fin 710 “All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both Houses” Pickin v British Railways Board [1974] AC 765 “It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry the effect of the effectiveness of the internal procedures in the High Court of Parliament or an inquiry in any particular case those procedures were effectively followed” (Lord Morris) “if there is evidence that Parliament may have been misled into an enactment, Parliament might well – indeed, would be likely to – wish to conduct its own inquiry. It would be unthinkable that two inquiries – one parliamentary and the other forensic – should proceed concurrently, conceivably arriving at different conclusions; and a parliamentary examination of parliamentary procedures and of the actions and understandings of officers of Parliament would seem to be clearly more satisfactory than one conducted in a court of law – quite apart from considerations of Parliamentary privilege.” (Lord Simon) Principle that the courts will not inquire into an Act of Parliament which states that it has been properly enacted 3. Parliament cannot limit future parliament Theory of continuing PS: after a General Election, Parliament is free to pass new legislation, on any subject matter, and to amend/repeal any legislation enacted by a previous Parliament. ‘every age and generation must be as free to act for itself, in all cases as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.’ (Thomas Paine, The Rights of Man, 1791). Ellen Streets Estates (1934) case – high-water mark of PS – absolute unwillingness on part of judges to allow Parliament to restrict itself. • ‘The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.’(Ellen Street Estates v MoH [1934] 1 KB 590 ( Maugham LJ)) Repeal Acts of Parliament Express Repeal: later statute expressly repeals an earlier one and replaces it with new provisions – courts will give effect to those new provisions. Example: Government of Wales Act 2006 repeals and replaces most of Government of Wales Act 1998. Implied Repeal: where a later statute conflicts with an earlier statute, which is does not expressly repeal, courts apply later statute in preference to earlier one – deemed impliedly repealed. "…. Parliament can alter an act previously passed, and it can do so by repealing the terms the previous Act … and it can do it also in another way – namely, by enacting a provision which is clearly inconsistent with the previous Act" (Scrutton LJ). ------------------------------------------------------------------------------------------------------------------------------------- Constitutional Statute – Can only be expressly Repeal NB: not all Acts of Parliament have constitutional importance. 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 what we would now regard as fundamental constitutional rights (LJ Laws, Thoburn v Sunderland City Council [2002] EWHC 195). ▪ Examples given by LJ Laws: Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. ▪ *Sunday trading act 2012 – for London Olympic , but no constitutional significance ▪ Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual not imputed, constructive or impugned, intention was to effect the repeal or abrogation. I think that the test could be met only by express words in the later statute, or by word so specific that the inference of an actual determination to effect the result contended for was irresistible.’ [63] Key Debates Manner and Form ▪ Carroll (2016) – if a statute were to prescribe a particular procedure or ‘manner and form’ for its amendment or repeal, any subsequent legislative provisions seeking to achieve such alteration except by that method would be ineffective. Ø Idea that Parliament may, if it sees fit, impose conditions on amendment or repeal requirements of an Act. – maybe can restrict in certain way for future parliament? Ø A move towards a more pragmatic view of sovereignty? Some academic arguments that M&F is possible in the UK: ‘“Legal Sovereignty” is merely a name indicating that the legislature has for the time being the power to make laws of any kind … . That is [an Act of Parliament] will be recognised by the courts including a rule which alters this law itself. If this is so, the “legal sovereign” may impose legal limitations on itself, because its power to change the law includes the power to change the law affecting itself.’ (Jennings – self-embracing sovereignty) ▪ Post-Jackson scholarship e.g. H Zhou, ‘Revisiting the "manner and form" theory of parliamentary sovereignty’ (2013) 129 LQR 610. Jackson Case Facts: The applicant claimed that the Hunting Act 2004 was made unlawfully as it was not passed by the House of Lords. He claimed that the Parliament Act 1949 was unlawfully passed (also without the Lords’ approval) to allow Bills to the automatically passed after 1 year of no approval by the House of Lords Issue: Was the Parliament Act 1949 lawful, and hence the Hunting Act 2004? Issue: concerns ability of HoC to pass a Bill to the Crown for Royal Assent without consent of HoL. ▪ Significance: questioned whether Parliament had authority to change the way law was created. Decision: Yes – Hunting Act was lawful, claim failed. (1949 parliament act was also unlawful – bypass house of lord) ▪ Reasoning: ▪ Although courts may judge whether a statute was valid by the way it was passed, the Hunting Act 2004 was passed lawfully and so was valid. The 1949 Act followed the provisions of the 1911 Act ▪ Parliaments can be bound by changing requirements of form imposed by their predecessors Hunting Act 2004 – politically controversial – House of Lords opposed. Adopted under the Parliament Acts 1911 and 1949 (i.e. without House of Lords) ▪ Parliament Act 1911 – adopted under normal procedure, restricting power of House of Lords (delay
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