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Home , Hunting Act 2004, Parliament Act 1949, Stockdale v Hansard

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 , the right to make or unmake any whatever; and, further, that no person or body is recognised by the law of England as having a right to set aside the of Parliament”

Three key elements:

1. Parliament’s legislative competence.

2. Validity of an 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 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 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 ; 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 (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 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 , 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 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 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 .” (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 to allow Parliament to restrict itself.

• ‘The 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 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).

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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: , the , the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the 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 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 Act 2004 was made unlawfully as it was not passed by the . He claimed that the 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 ?

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 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)

▪ – adopted under normal procedure, restricting power of House of Lords (delay by two sessions)

▪ Parliament Act 1949 – adopted under Parliament Act 1911, further restricting the power of the Lords (delay by one session)

▪ Was that OK? If not: is the Hunting Act 2004 valid at all?

Parliament Act 1911 as amended 1949 (s 2)

If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons in two successive sessions (whether of the same Parliament or not), and, having been sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its rejection for the second time by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill: Provided that this provision shall not take effect unless one year has elapsed between the date of the second reading in the first of those sessions of the Bill in the House of Commons and the date on which it passes the House of Commons in the second of these sessions. ▪ Bold text represents amendments (two sessions with 1 year gap, instead of three with two- year gap)

▪ 'creating a new way of enacting primary legislation' [24] (Lord Bingham)

▪ (Note – limited power over Money Bills set out in s 1 PA 1911 – not amended since)

Further implications of Accepting PA 1949

▪ ‘Strict legalism suggests that the Attorney General may be right [that the 1949 Act could be used by the Government to abolish the House of Lords]. But I am deeply troubled about assenting to the validity of such an exorbitant assertion of government power in our bi- cameral system. It may be that such an issue would test the relative merits of strict legalism and constitutional legal principle in the courts at the most fundamental level.’ [101] (Lord Steyn). Dissenting opinion

▪ Courts in a Doomsday Scenario: ‘I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. […]. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified’. [104] (Lord Hope).

Key Act

Section 3, 4, 19

3. Interpretation of legislation. – still parliament is sovereign and may ignore the incompatibility

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)This section—

(a)applies to primary legislation and subordinate legislation whenever enacted;

(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c)does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

4Declaration of incompatibility.

(1)Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2)If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3)Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.

(4)If the court is satisfied—

(a)that the provision is incompatible with a Convention right, and

(6)A declaration under this section (“a declaration of incompatibility”)—

(a)does not affect the validity, continuing operation or enforcement

19 Statements of compatibility.

(1)A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—

(a)make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or

(b)make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.

(2)The statement must be in writing and be published in such manner as the Minister making it considers appropriate. Section 6 – unlawful for public authority to act incompatible with the convention right

“(3) In this section “public authority” includes—

(a) a court or , and

(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament (…)”