Parliamentary Sovereignty Intro
The doctrine maintains that Parliament has unlimited legal power to enact any law and also that it cannot be overridden by another body.
(Parliament = the Queen, House of Lords and the House of Commons)
Dicey distinguished legal sovereignty and political sovereignty:
- Legal: the power of law making unrestricted by any legal limit
- Political: the body, the will of which is ultimately obeyed by citizens of the state
Internal and external political limits on the lawmaker:
Internal: those inherent in the rules and practices of parliament. (Queen’s assent, political and moral pressures imposed by constitutional conventions, patronage and party discipline.)
External: consist of what those subject to the law are prepared to accept. In practice Parliament cannot pass any law it wishes and Dicey thought that pressure from electorate would make democracy ‘self-correcting’.
Basis of Parliamentary Sovereignty
Parliamentary sovereignty is no more than a ‘rule of recognition’ shared by the governing elite which has stood the test of time. It was generated by the 1688 revolution when Parliament implicitly claimed to be sovereign, a claim which has not been seriously contested.
Common law constitutionalism: claims that the doctrine is based on the common law ‘rule of law’ under which the courts have voluntarily obeyed Acts of Parliament in the interests of democracy.
The basis of the common law centred belief is that, since the courts have to apply Acts of Parliament, they necessarily have a powerful role, in deciding what parliamentary sovereignty means.
The Meaning of ‘Act of Parliament’
1.The basic definition of an Act of Parliament as a document that received the assent of Queen, Lords and Commons. A court is not bound by a document that does not appear on its face to have received the necessary assents but conversely must accept the validity of a document that does so appear. This is called the ‘enrolled act rule’. It prevents the courts investigating whether proper internal have in fact been complied with and even whether the statute was procured by fraud.
2. 2. Under Parliament Acts 1911 and 1949, if the Commons so decides, and subjects to important exceptions, a bill can become law without the consent of the House of Lords after a prescribed delaying period. 1911 act partly excludes the courts by providing that a certificate given by the Speaker to the effect that the requirements of the Act have been complied with is ‘conclusive for all purposes and shall not be questioned in any court of law’. However, this doesn’t prevent the court from deciding the prior question of whether the bill falls within the 1911 act at all. In principle the court can investigate whether statutory requirements have been complied with.
3. 3. Various rules concerning the composition and internal procedure of each house. These include the various stages of passage of a bill, voting procedures and the law governing qualifications for membership of either House. They comprise a mixture of statute, convention and the law and custom of Parliament enforced by the House itself.
Dicey - Freedom to make law
- Parliament has unlimited law making power in the sense that it can make any kind of law
Make any kind of laws irrespective of morality, fairness, justice and practicality.
- Retrospective legislation (Burmah Oil Co ltd v Lord Advocate)
- Statutes conflicting with international law (Mortenson v Peters)
- Conflicting with fundamental civil liberties (R v Jordan 1967) Crim LR 483
Lord Reid – It is often said that it would be unconstitutional for the UK 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 powers of Parliament to do such things. If Parliament chose to do any of them the courts could not hold Parliament to account.
Dicey - Parliament can't be overridden
1. International bodies don’t have the power in English law to declare an Act of Parliament invalid. International law can alter legal rights in the UK only if adopted by Parliament.
2. In the event of a conflict between statute and some other kind of law, the statue must always prevail. However this leaves open the possibility that a statute itself might authorise some other law making authority to override statutes.
Dicey: Parliament cannot bind its successors
Where there are two statues of equal status we should prefer the later one since it represents the current intention of Parliament – ‘no generation should be able to tie the hands of the future’.
A statute cannot be protected against repeal.
Where a later statute conflicts with an earlier one, the later one may impliedly repeal the earlier one. This is not an essential part of PS as Parliament can expressly repeal a previous act.
Some statutes are so important that they can only be repealed by express words or possibly by necessary implication.
Entrenchment - PS Criticism
Jennings – attempts to circumvent the rule that parliament can’t bind its successors. If parliament can do anything, it can redesign itself either in general or for particular purpose. It can therefore redefine itself in such a way as to make it more difficult for a future parliament to change the law that is wishes to protect.
Changing the procedure of lawmaking which must be followed unless this new procedure is changed.
An entrenched statute may be repealed but not without following the new procedure, that is by (for example) holding a referendum as to whether in future the referendum requirement should be repealed.
Criticisms of Entrenchment
1) If parliament were to ignore the special procedure by passing a statute in the ordinary way, the courts would simply obey the most recent Act of Parliament and thus treat the special procedure as impliedly repealed. This misses the point, since according to the redefinition argument, a document that has not been produced under the special procedure is not an Act of Parliament at all and so must be ignored, just as an ordinary law would be ignored if it did not have royal assent. There are not competing statutes for the implied repeal doctrine to engage with.
2) Any act which confers lawmaking power subject to a special procedure is in reality delegating power to a subordinate body since, by definition, subordinate legislation is legislation made under the authority of another body and is inherently restricted by the terms of reference given to it. If this is so, then the superior body can always legislate to override the subordinate.
3) Wade – the meaning of parliament is fixed by a rule derived from the 1688 revolution which is above and beyond the reach of parliament; a fundamental constitutional principle which he takes to be in the hands of the courts and so a unique rule both political and common law. Wade argues that because this rule gave Parliament its power, it cannot be altered by Parliament and any attempt to redefine Parliament would at best produce delegated legislation.
(PS) EU Law
The European Communities Act 1972 incorporated EU law into UK law. ‘Any enactment, passed or to be passed… shall be construed and have effect subject to the foregoing provisions in this section.’ (s2(4)). English courts are required to give effect to certain laws made by the EU. S3 requires UK courts to follow the decisions of the European Court of Justice. The effect of this is that a UK statute, even one passed after the relevant EU law, must give way to EU law.
A treaty cannot change the law unless incorporated into domestic law by statute (Section 9.5.1). (Action Alliance Ltd v Secretary of State for Transport) Supreme court emphasised that EU law was part of UK law only by virtue of the provisions of UK law itself.
EU cases are therefore of significance only if the 1972 act is strong enough to override normal principles of parliamentary sovereignty.
The Human Rights Act 1998 (PS)
By virtue of the Human Rights Act a court must interpret a statute so as far as it is possible to do so – so as to comply with rights derived from the European Convention on Human Rights.
If this is not possible the court can issue a declaration of incompatibility.
This does not override the statute, and the Act is clear that the court has no power to do so. This does not override the statute, and the Act is clear that the court has no power to do so.
The effect of a declaration of incompatibility is to invite the executive in conjunction with parliament to change the law so as to comply with ECHR.
Thus the act does not directly restrict parliamentary sovereignty.
However, along with EU legislation and the devolution legislation the Human Rights Act could be regarded, at least politically, as a brake on parliamentary sovereignty.
The common law/rule of law (PS)
It is sometimes suggested that parliamentary sovereignty may be conditional on compliance with fundamental value embodied in the rule of law so that in extreme cases the court might refuse to apply a statute. In the absence of a written constitution change cannot be ruled out.
The courts have suggested that Parliament has become dominated by the executive.
‘The tyranny of the majority’ – Democracy is more than just the will of the majority and must be policed by certain basic rights of equality and freedom protected against the volatility, corruption or foolishness of the majority.