Parliamentary Sovereignty

Legal positivist

Tow orders of rules -->

• rules made by authorised law-making institutions and enforced by the courts
• rules not directly enforceable by law but part of the constitution (conventions)

Constitutional law = 'all rules which directly or indirectly affect the distribution or the exercise of the sovereign power of the state'

Law is attempt to subject human conduct to government of rules

Right to make or unmake any law whatever

No person or body is recognised by the law as having a right to override or set aside the legislation of Parliament

No legal limitaiton on power of Parliament to work

Act of parliament is highest expression of law

All other institutions of state are obliged to give effect to meaning expressed in Act of Parliament

1. absolute supremacy of regular law as opposed to the influence of arbitrary power

• generality so we know what rules are and how to behave so as not to come within ambit of rules
• to constrain govt, not to authorise it to do whatever it desires

2. equality before the law

• each of use regardless of social/political standing are equal in eyes of law
• claims analysed on legal merits regardles of who makes it or who it's against

3. 'The law of the constitution is not the source but the consequence of the rights of individuals

• codified --> right set out as basic rights and principles state must respect within constitution --> constitution source of rights
• uncodified --> sense of rights of freeborn Englishman - born free and able to do whatever we want except for restrains imposed on us by law --> legal structure creates constitutional order (consequence of rights, not source of them) --> expression of civil libertarianism

Rule of law and PS are in tension, if not incompatible

PS and rule of law exist in relationship of tension

Reconciliation effected by conventions

Conventions ensure that enacted legislation complies with the spirit of liberty

• P can never pass legislation that can undermin rule of law
• rise of democracy with formation disciplined political parties whose objetive to protect particular interests in society --> primary allegiance to party, as opposed to rule and principles of state --> rise of massive admin govt - interest in all public and most private areas of life, which is a huge change from 19th century world to which Dicey refers --> rise of ideological politics and rationalism --> wide discretionay pwoers given to government institutions to enforce policies
• but important that rule has to avail or authority fo govt would dissipate --> means collapse of Dicey's structure which has resulted in loss of confidence in British constitution

Parliament means 'Crown-in-Parliament'

Concept of sovereignty is just a concept --> doesn't mean HC or Mps --> means when Bill introduced into Parliament and goes through certain procedure whereby it is approved by both Houses and receives the royal assent then the Act is supreme

Courts are not guardians of constitutional values, their job is simply to give effect to Acts

Illustrations

• pass laws to extend own life (e.g. in war)
• alter succession to the throne
• reform composition of Houses of Parliament (HL Act 1999; Life Peerages Act)
• alter law retrospectively to legalise past illegalities (War Damages Act 1965, contra Burmah Oil case
• Amend arrangements for determining what constitutes an Act of Parliament

Parliament cannot bind successors

Doctrine of implied repeal

• Ellen Street Estates v Minister of Health (1934)

Expression of democracy?

Entrenchment? 

Manner and form limitations?

Deconolonisation

• Statute of Westminster
  • removed limitations of the competence of Dominion Parliaments
  • Acts no longer extended to those dominions unless requested and consented to by that dominion
  • British Coal Corp v R (1935) --> Parliament still has power to legislate for Canada but it is simply a theory with no reality
  • L Denning in Blackburn v AG (1971) --> 'Freedom once given cannot be taken away. Legal theory must give way to practical politics.'

1909 Liberal Budget rejected by HL

Threat to create 600 new peers to ensure majority in HL

PA 1911 

• abolished HL power to veto legislation
• power to delay for 2 years

PA 1949 

• reduced delaying power to 1 year
• passed using PA 1911 procedure

Amends arrangements for what counts as an Act of Parliament e.g. Hunting Act 2011

Hale --> if P can define itself downwards (modify consent requirement of HL), possible can also redefine upwards, e.g. require popular referendum or special type of parliamentary majority

Steyn --> redefinition of Parliament by Parliament would not be disregarded

Northern Ireland

• NI Act 1998 --> s1(1) - NI part of UK unless popular referendum decides not to be by majority

Scotland

• Claim of Right 1989 - Scottish Constitutional Convention
• Scotland Act 1998
• Can the scheeme of legislative devolution be unilaterally repealed?

Europe

• UK Parliament bound by terms of treaties establishing EU
• ECA 1972 isn't entrenched --> could be repealed
• Parliament has ability to legislate contrary to UK's treaty obligations to EU --> to do so would place UK in breach of said treaty obligations

Impact of repeal?

Judicial practice

• cluster of rules about legilative competence of UK Parliament
• only applies to UK Parliament, not other legislatures
• Dicey enthusiastic about PS
• unlimited legislative power in the sense that it can legislate on any matter it wants to

Courts on PS

• 'enrolled Bill rule' --> refusal to look behind text of statute to consider allegations of procedural impropriety during legislative process
• P can legislate on anything even e.g. contrary to fundamental rights --> constrains are political, not legal
• principle of legality --> P must explicitly confront what it is doing & accept political cost if it wishes to legislate contrary to fundamental rights --> any ambiguity interpreted in favour of such rights
• P can limit own powers --> is this temporary?

Political criticism --> empty principle - if leg passed which is so unacceptable populace at large refuses to recognise it as law --> e.g. 2008 when govt tried to extend detention of terror suspects without charge to up to 42 days

Government view on PS --> most central characteristic of UK constitution --> (Lord Goldsmith) 'fundamental principle of British constitutional law'

Statute?

• not set out in Act of Parliament
• impossible - Act cannot declare legal power of Act because to do so would be to assume itself - rule that Acts have force of law is legally ultimate --> P cannot confer constitutional authority on itself by its own enactment

Common law?

Constitutional convention?

• can be rejected on basis taht one of defining characteristics of conventions is taht they are not justiciable and enforceable by courts

Some other category?

• class of its own?
• Wade --> 'ultimate political fact' --> as source of authority of statute, rule is bove and beyond reach of statute --> not statute can alter or abolish the rule
• Goldsworthy --> mistake to think that doctrine of PS is 'creature of common law'

Makes it harder or impossible to repeal an Act or rule

Desirable?

• to protect certain fundamental constitutional characteristics or basic rights
• attempts at entrenchment e.g. Union with Scotland Act
• not desirable --> ruin flexibility of English law to easily update rules and rights as society changes
• entrenchment may not be compatible with parliamentary democracy which preserves freedom of each Parliametn to legislate according to its view of public interest

How can it be achieved?

(1) statement that whole Act or section of Act shall continue in force for all time in future --> attempts to do this before unsuccessful as P can simply repeal clauses stating act shall continue in force
(2) make future legislation dependent on referendum
(3) special parliamentary procedure before amendment or repeal takes place, e.g. 'super-majority' of MPs or consent of both chambers of P

Is it possible in UK?

• paradox --> if P is able to limit ispowers to enact leg in future then P would cease to have full legal supremacy but if it lacks capacity to do so then it lacks full legal supremacy anyway
• no entrenchment school of though
  • Dicey and Wade
  • UK P cannot effectively restrict how future P will exercise their primary law-making powers
  • even if Act specifies special procedure or referendum, later Act has bility to repeal that section and judges will follow the later Act
• yes entrenchment school of thought
  • 'self-embracing', 'manner and form' or 'new' approach to supremacy
  • Jennings --> stop thinking about P as having supreme power and focus on key principle that 'the courts accpet as law that whihc is made in the proper legal form' --> possible for P to refine way in which law-making power was exercised --> 'manner and form' --> bind future P

If two provisions are contradictory, late provision is regarded as binding --> P treated as having impliedly repealed first provision when it enaced second one 

Thoburn --> Laws LJ --> difference between normal and constitutional statutes --> no judge has yet called this approach in Thorburn into question

Idea that constitutional statute cannot be impliedly repealed --> can only be repealed expressly

3 possibilities

• (1) --> PS remains dominant principle, albeit modified to make UK membership of EU and Council of Europe possible
• (2) --> UK adopts codified constitution, which becomes source of P's law-making powers with courts responsible for enforcing provisions of new constitution
• (3) --> UKSC may decide that judiciary has power to adjudicate on constitutional validity of Acts in order to protect rights recognised by common law 

Steyn judgment in Jackson --> judges created PS and so may have to qualify or abolsih it if circumstances arise --> Dicey account of PS is out of place in modern democracy

'Bipolar sovereignty' --> powers of both P and judiciary recognised

Still a lot of commitment to principle of PS

Alternative to entrenchment? --> a new judicial oath? --> possibility of achieving entrenchment by securing recognition of fundamental right or law in judicial oath --> judges would be under oath to enforce it --> Act could be passed to discharge them from former oats if though necessary and require them to be resworn in new terms