Public Law I: Parliamentary Sovereignty

What is Parliamentary Sovereignty?: 

Dicey, 1965, 'The Law & the Constitution':

1. '..Parliament thus defined has, under 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 overriding or set aside Parliament legislation.'

2. 'Any rule which will be enforced by the courts. Positive side of Parliamentary soverignty = any act or part of Parliament, which makes new law or repeals or modifies an exisiting law, will be obeyed by the courts.'

3.'The same principle looked at from Negative side: There is no person or body of persons who can under English constitution, make rules which override or derogate from an Act of Parliament or which will be enforced by the courts in contravention to Acts of Parliament'

(in comparison USA Supreme Court can strive down laws but British cannot!)!!

Power, politics and law: 

1. Political sovereignty: What Parliament can actually do - what is politically feasible? (post Enlightenment and advent of Social Contract Theory, sovereignty vests in the people

2. Legal sovereignty: What Parliament has the legal authority to do? (post Glorious Revolution, legal sovereignty vests in Parliament)

We learn about LEGAL not POLITICAL

POWER underpins SOVEREIGNTY! 

Similar to GOD, Parliament can do ANTYHING they want EXCEPT STOP/END ITSELF!

Omnipotence = Unlimited power

Dicey: 'the logical reason why Parliament has failed to enact unchangeable enactments is that a sovereign power cannot restrict its own powers by any parliamentary act'

Entrenchment means:

make something more difficult 'entrenched in...'

i.e. Bill of Rights in USA = VERY complex to change this for example remove freedom of expression from Bill of Rights VERY difficult but in comparison laws can be changed easily. 

Consitutional rigidity vs Consitutional flexibility

• USA: have a very rigid written constitution lacking flexibility
• England: have a flexible unwritten constitution with flexibility i.e. Parliament can change the rules easily for example Scotland was ruled by England and now is not! BUT: Parliament cannot be changed and the British Constituion is very rigid in this sense

Soverignty in England:

- We are very attached to soverignty and known as a Common Law Constitution meaning the courts have a voice and can change their minds = POWER 

BUT... should the courts have this power when they have no democratic credentials!!!

Glorious Revolution 1688:

Battle between where authority lied Monarch or Parliament overthrow of James II

Pre-Glorious Revolution: Supremacy was shared- King ruled supremely or via Parliament

1. Chief Justice Coke in Dr Bonham's 1610: 'When Act of Parliament is against common right/reason or repugnant or impossible, common law will control it and make void'.

Post-Glorious Revolution: Parliament asserted control - 

2. Article 9, The Bill of Rights 1689: 'proceedings in Parliament ought not to be impeached or questioned in any court or place'

3. Anson Law and Custom of the Constitution: 'Then the King or Queen governed through Ministers, now Ministers govern through the instrumentality of the Crown'

4. Allen, Law, Liberty & Justice 1993: 'Legislation obtains its force from the doctrine of Parliamentary Sovereignty, which is itself a creature of the common law and whose detailed content and limits are therefore of judicial making. Parliament is sovereign because judges acknowledge its legal and political supremacy. 

Modern era: The 'idea' of Parliamentary Sovereignty:

• Power vests in Parliament
• Parliament has absolute power to legislate
• No one has the power to challenge Parliament's power to make any law

Who is Parliament:

Monarch (inherited), House of Lords (appointed), House of Commons (elected)

However...

Parliaments sovereignty is questioned nowadays:

1. Droit Public- English Style 1995: Lord Wolf: 'ultimately there are even limits on the supremacy of Parliament which it is the courts inalienable responsibility to identify and uphold.....' (we cannot ignore the inalienable power that the courts have!!!) 

2. Jackson v AG 2005: Lord Hope: 'parliamentary sovereignty is no longer, if it ever was, absolute'

House of Lords

=  until 1911 when House of Commons became more powerful

House of Commons

BUT didn't intend to remove power from HoL's but HoC's can now overide the HoL's if they refuse!!! Makes it easier to pass legislation with only 1 house

Is it therefore stable? The members change often and only 1 house to pass legislation?

Are we giving power AWAY?

• Scotland given power to legislate for themselves
• Wales starting to be given power to legislate for themselves
• Europe (Brussels) EU Law (ECHR)

Is our Parliament still sovereign? Have we retained authority? Are we restrained? 

Fixed Term Parliaments Act 2011:

The Fixed-term Parliaments Act 2011 is an Act of the Parliament of the United Kingdom that introduced fixed-term elections for the first time to the Westminster parliament. Under the provisions of the Act, parliamentary elections must be held every five years, beginning in 2015. Fixed-term Parliaments were part of the Conservative – Liberal Democrat Coalition Agreement which was produced after the 2010 general election.

Section 2 of the Act also provides for two ways in which a general election can be held before the end of this five-year period:

• If the House of Commons resolves "That this House has no confidence in Her Majesty's Government", an early general election is held, unless the House of Commons resolves "That this House has confidence in Her Majesty's Government". 
• If the House of Commons, with the support of two-thirds of its total membership (including vacant seats), resolves "That there shall be an early parliamentary general election".

Devolution statutes passed by the UK Parliament 1998:

• Scotland: The Scotland Act 1998 established a Scottish Parliament and provides for the appointment of the Scottish Ministers to exercise executive functions in relation to Scotland. The Act enables the Parliament to makes a form of devolved primary legislation - Acts of the Scottish Parliament (ASPs). Acts confer delegated legislative powers, including on the Scottish Ministers.
• Northern Ireland: Recent devolution in Northern Ireland is historically more complex than elsewhere in the UK. A Northern Ireland Parliament legislated from 1921 to 1972 and, since then, there has been a halting sequence of elected Assemblies. Current arrangements derive from the Northern Ireland Act 1998 (though that was itself suspended between 2002 and 2007, when direct rule by Order in Council operated under the Northern Ireland Act 2000). Since May 2007, devolved legislative and executive powers have once again been vested in the NI Assembly and NI Ministers.
• Wales: The 1998 settlement, though establishing the National Assembly for Wales and providing for Welsh ministers to exercise functions on the Assembly's behalf, was a form of executive rather than legislative devolution. The powers of the Assembly were broadly equivalent to UK Ministers, and in relation to named (and pre-existing) legislative functions rather than presumed devolution with reservations. This has been modified by the Government of Wales Act 2006. Although there remains no presumption of devolution, that Act does for the first time provide for devolved primary legislation - Assembly Measures - in relation to specified subjects and, subject to a referendum, for replacement powers to be conferred on the Assembly to make its own Acts.

Redefining Parliament:

Can Parliament redefine itself?

1. Parliament Act 1911: Until the early years of the 20th century, the House of Lords had the power to veto (stop) legislation.The Parliament Act 1911, which removed from the House of Lords the power to veto a Bill, except one to extend the lifetime of a Parliament. Instead, the Lords could delay a Bill by up to two years. The Act also reduced the maximum lifespan of a Parliament from seven years to five years.

2. Parliament Act 1949: The Parliament Act 1949 further reduced the Lords' delaying powers to one year.

3. Devolution statutes: Devolution is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level. It is a form of decentralization.

4. EU institutions

5. ECHR

- Individual legal domestic law rights do not undermine Parliaments freedom to legislate

1. Lord Campbell in Edingburgh & Dalkeith Railway Co v Wauchope 1842: Standing orders in Parliament required notice of private acts to be given to those affected. Act passed without required notice. 'if the bill has passed both houses and received royal assent, no court can inquire into the mode in which it was introduced to Parliament, into what was done before its introduction or what passed in Parliament'

- Even where fraud is alleged to have induced Parliament to enact legislation, the courts will not question the will of Parliament

2. Willes J in Lee v Bude & Torrington Railway 1871: 'Are we to act as regents over what is done in Parliament with the consent of the Queen, Lords and Commons? I deny that any such authority exists. If an Act is obtained inpromperly, its for Parliament only to correct it'.

3. Lord Reid in Pickin v British Railway Board 1974: Removal of land right contested: 'the idea that the court is entitled to disregard a provision in an Act of Parliament must seem strange to anyone with any knowledge of the history and law of our constitution'. Parliament can remove rights and do as they please!!!!

- Parliament can defy an INTERNATIONAL right too, if it pleases....

1. Lord Dunedin in Mortensen v Peters 1906: claimed that Parliament could not legislate to control fishing in international waters controlled by international law and not national law. Court refused to accept that limitation. 'In this court we have nothing to do with the question of whether Parliament has or has not done what foreign powers may consider usurpation...we are bound to give effect to its terms'. 

2. Thomas J in Cheney v Conn 1968: Claimed that Parliament could not legislate to require taxation that would be used for a purpose that was illegal in International law (fund nuclear). Court refused to accept that limitation on Parliament's power. 'What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself THE LAW, and the highest form of law that is known to this country'. 

Conventions cannot prevent Parliament from legislating:

Constitutional Conventions (behaviours and NOT laws!): 

1. Madzimbamuto v Lardner Burke 1969: Rhodesia (British colony), acquired self government that by convention meant the British government would only legislate for them if requested to do so by Rhodesia. In 1965, Rhodesia declared independence. Parliament enacted legislation reclaiming power to govern Rhodesia directly. Claim brought and courts refused to entertrain the challenge. 'Often said that it would be unconstitutional for the UK Parliament to do certain things that are so strong most people would regard as highly improper but that does not mean it is beyond their power and the court cannot hold invalid'

Rights granted in prior constitutions CAN be ignored by Parliament:

1.Manuel v AG 1983: Canadian Constitution given up by Britain to legislate for them by passing legislation in 1982 via the Canada Act 1982. Claim brought as UK held to not be allowed to remove rights of less protected Canadians that wanted UK to still legislate for them. Court refused to entertain claim! 'The Canada Act is an act of Parliament and to that act as a judge, I owe full obdience. Parliament is supreme.'

Although the legal power is unlimited of Parliament, there are political limits...

1. Blackburn v AG per Lord Denning 1971: a case about UK's entry into European Economic Community. Reminded by Denning on the political limits on Parliaments power:

'Legal theory does not march alongside political theory. Statute of Westminster 1931 that took away power of Parliament to legislate for the Dominions. Freedom once given cannot be taken away. Legal theory must give way to practical politics'. 

TWO WORDS OF CAUTION:

1. Repeal under the Acts of Union per:

MacCormick v Lord Advocate 1953 Lord President Cooper: In English law Parliament can even contradict the Acts of Union but perhaps not Scottish Law: 'The principle of the unlimited sovereignty of Parliament is distinctively English principle which has no counterpart in Scottish constitutional law'. Scotlant perceive English law differently. 

2. Restraining appeal in the Colonies:

AG New South Wales v Trethowan 1932 per Dixon J 1932: Principles of Colonial Law which prevent repeal by colonial authorities have no bearing on Parliament's absolute freedom to legislate...or do they? 'This question must be answered upon a consideration of the true meaning and effect of the written instrument from which the Parliament of New South Wales derives its legislative power and not by the direct app of the doctrine of parliamentary soverignty'.

Repealling Legisl: a. Express repeal b. Implied repeal c. Fixed Term Parliaments Act 2011

A. EXPRESS REPEAL

Definition: Parliament has absolute unfettered power to repeal former legislation expressly. Entrenchment provisions in prior legislation are ineffective (i.e. 'this act can't be repealed').

1. Godden v Hales 1686 per Herbert CJ: 'If an act of Parliament had a clause in it that it should never be repealed, yet without question, the same power that made it, may repeal it.'

b. Implied Repeal:

Definition: doctrine of implied repeal: More recent statute contradicts an older statute, the older statute is taken to have been repealed so as necessary to enforce the recent statute.

1. Jaconelli 'Enacting a Bill of Rights' 1980: No Act may be held invalid by the courts. No Parliament can bind its successors as to the form or contend of subsquent legislation. Implicit in all these propositions lies the conclusion that, if 2 acts of Parliament conflict, the later statute repeals the earlier'. 

2. Vauxhall Estates 1932 and Ellen Street Estates 1934: Courts asked to refuse to implement a 1925 act as the 1919 act expressly stipulated that inconsistent provisions were ineffective. Courts only prepared to refuse older Acts and not future Acts. 'It is impossible for Parliament to enact that in susbsquent statute dealing the with same subject there can be no implied repeal.' per Maugham LJ in Ellen Streets

We belong to two memberships:

Council of Europe (jointed 1956 and HRA 1998 into our law) and European Union (joined 1973)

b. Implied Repeal & European Relationship

European Court on Human Rights:

• Political role of ECtHR: Governments not courts must enforce ECHR rulings
• HRA: Amendments provisions include: 1. Declaration of incompatibility and Ministerial power and limited Parliamentary role

European Court of Justice:

• European Institutions take a clear view on European law supremecy: IT IS SUPREME! 

The European Communities Act 1972 (section 2):

• UK joined in 1973 (Costa v ENEL 1964) Landmark decision of the European Court of Justice which established the supremacy of European Union law over the laws of its member states. Parliamentary Supremecy is endangered and now 2 courts competing .European Institutions create law UK applicable. European Courts of Justice is the final arbiter of EU law (by process of reference from domestic courts i.e. seeking interp.). All British courts follow the European Court of Justice and enforce EU law.

Tension between EU & UK law?

1. Mcarthy's v Smiths 1981: early case suggests a purposive interpretation of domestic legislation. We interpret UK law to comply with EU law. Statute matches EU law.

2. Secretary of State for Employment, ex parte EOC 1995: Courts warn government of the incompatibility of domestic law with EU law i.e. declaration of incompatibility

3. Factortame 1989: Spaniards shipping in UK waters. Merchant Shipping Act 1988 and EU law conflicted citizenship rights. Conflict of supremacies. Thatcher didn't like EU & tried to stop Spanish fishing and control ships. Act offends the European Communities Act 1972. House of Lords had to choose to apply EU or UK law. Lord Bridge held 2 obstacles stood in the way of granting injunction. 1st: the relief sought required the court to dis apply 1988 Act; were Factortame not to succeed in ECJ, House of Lords would have "conferred upon them rights directly contrary to Parliament's sovereign will". 2nd court had no jurisdiction to grant injunction against the Crown.House of Lords req'd to determine whether there existed an overriding principle of EU law imposing an obligation on courts vs. rights having effect under Community law. Concluded no clear authority & ECJ decision req'd.

Went to ECJ quickly: ECJ held that a national court has a duty to grant interim relief to safeguard alleged Community rights of individuals until decision of ECJ on the interpretation is available & where a rule of national law would deny relief, to set aside that rule.

House of Lords 2nd decision: Judgment after ECJ's ruling= granted injunction to Factortame. 3 issues emerged: the availability of interim relief against the Crown, basis on which such relief can be granted, and the impact of the ruling on Parliamentary sovereignty.

Has Parliamentary Sovereignty thus eroded?

Factortame was the first time in history that the courts refused to give effect to statute and severely questions Dicey's idea of Parliamentary Sovereignty as courts stood in the way of Parliament. Parliament has, in passing the European Communities Act 1972, managed to bind its successors from repealing the Act impliedly!!!!

1. Thoburn v Sunderland City Council 2003 per Laws LJ: Discusses the EFFECT of Factortame: 'In the present state of its maturity the common law has come to recognise that there exists rights which should be properly classified as constituional or fundamental. We should recognise a hirearchy of Acts of Parliament: as it were 'ordinary statutes' and 'constitutional statutes'. This suggests, according to LJ Laws that the doctrine of implied repeal will apply to ordinary statutes but NOT to constitutional statutes, which is problematic as we do not have a written constitution so how do we KNOW what constitutional statutes even are?

• Sir William Wade described Factortame as a 'constitutional revolution' and the 1972 did mean that Parliament bound its successors! BUT.. What about EXPRESS REPEAL? and legislating to LEAVE the EU? Parliament still supreme as could if they wanted leave the EU? Wait for another case where society is NOT so accepting!.....

R (Jackson) v AG 2005:

Case brought by Jackson challenged the use of the Parliament Acts to enact the Hunting Act 2004. The appellants claimed that the Parliament Act 1911 could not be used to pass the Parliament Act 1949 which amended the 1911 Act; the Hunting Act, which was passed only in accordance with the modified as opposed to the original requirements of the Parliament Acts procedure, was therefore invalid.  The Parliament Act 1949 had therefore been validly passed using the 1911 Act and the Hunting Act was consequently also held to be an Act of Parliament. Obiter: Lord Steyn, Lord Hope and Baroness Hale suggested that there might be limits to parliamentary sovereignty (although Lord Bingham and Lord Carswellimpliedly supported the orthodox view that there are no limits to parliamentary sovereignty. Jackson prompted debate about the legitimacy of limiting parliamentary sovereignty. The House of Lords found that Parliament Act 1911 did not have any limitations that would prevent it being used to enact the 1949. The 1949 Act had therefore validly amended the requirements for a bill to use the Parliament Acts procedure and the Hunting Act, which was passed in accordance with these amended requirements, was consequently also held to be valid; the appellants' appeal was dismissed

There have been extrajudicial comments that parliamentary sovereignty isnt absolute:

1. Lord Woolf had written that "if Parliament did the unthinkable, then I would say that courts would also be required to act in a manner which was without precedent" (Jackson)

2. LJ Laws had argued that "ultimate sovereignty rests ... not with those who wield governmental power, but in the conditions under which they are permitted to do so. The constitution, not the Parliament, is in this sense sovereign

3. Young & Forsyth: Significant challenges to Albert Dicey's orthodox view of parliamentary sovereignty: that Parliament can make and unmake law on any topic and that no body can make a higher form of law than Parliament or set aside primary legislation

4.Lord Hope: 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.The English principle of the absolute sovereignty of Parliament is being qualified.The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based and the courts have a part to play in defining the limits of Parliament's legislative sovereignty. (Jackson)

Conclusions:

1. Implied repeal is probably altered 

2. Express repeal (WE THINK) is still intact

3. Redefining Parliament remains possible

4. Judges have views that are often political which they have some power to impose..

5. No one has the power to challenge an Act of Parliament..... BUT what about Europe?

6. We are giving power away...Scotland, Wales, Northern Ireland....

What actually is a constitution? (written or unwritten, rigid or flexible?)

Eric Barendt, 1998, 'An Introduction to Constitutional Law': 'the constitution of a state is a written document which outlines the powers of its parliament, government, courts and other important institutions'. 

Hood Phillips & Jackson 2001, 'Constitutional and Administrative Law': 'the system of laws, customs and conventions which define the composition and powers of the organs of the state and regulate the relations of the various state organs to one another and to the private citizen'. 

Jennings 1959 'The Law and the Constitution': 'if a constitution means a written document, then obviously Great Britain has no constitution. But the document itself merely sets out the rules determining the creation and operation of government institution, and obviously GB has such institutions and such rules.' 

Barnett 2010: 'Constitutional & Administrative Law': framework and moral foundations of a constitution: 1) Governing power to be exercised within legal limits. 2)Those exercising power must be accountable. 3) The exercise of power must respect individual rights 4) Power must be dispersed within the state. 5) Executive and legislative power must be answerable to the people

An overview of the British Constitution:

Constitutions organise, distribute and regulate state power. They set out the structure of the state, the major state institutions, and the principles governing their relations with each other and with the state’s citizens. Britain is unusual in that it has an ‘unwritten’ constitution: unlike the great majority of countries there is no single legal document which sets out in one place the fundamental laws outlining how the state works.

Britain’s lack of a ‘written’ constitution can be explained by its history. In other countries, many of whom have experienced revolution or regime change, it has been necessary to start from scratch or begin from first principles, constructing new state institutions and defining in detail their relations with each other and their citizens. By contrast, the British Constitution has evolved over a long period of time, reflecting the relative stability of the British polity. What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution. It is thus more accurate to refer to Britain’s constitution as an ‘uncodified’ constitution, rather than an ‘unwritten’ one.

Overview continued...

It has been suggested that the British Constitution can be summed up in eight words: What the Queen in Parliament enacts is law. This means that Parliament, using the power of the Crown, enacts law which no other body can challenge. However, some of these principles are mythical (the British constitution may be better understood as involving the fusion of executive and legislature) or in doubt (Parliamentary sovereignty may now be called in question given the combined impact of Europe, devolution, the Courts, and human rights). An uncodified constitution creates two problems. First, it makes it difficult to know what the state of the constitution actually is. Second, it suggests that it is easier to make changes to the UK Constitution than in countries with written constitutions, because the latter have documents with a ‘higher law’ status against which ordinary statute law and government action can be tested, and are only amendable via elaborate procedures. The flexibility of the UK constitution is evident from the large number of constitutional reforms since 1997, including the abolition of the majority of hereditary peers in the House of Lords, the introduction of codified rights of individuals for the the first time in the Human Rights Act 1998, and devolution to Scotland, Wales and Northern Ireland. Arguably, however, these recent constitutional reforms may have made the constitution less flexible in some respects: it is debatable, for instance, whether the devolution settlementscould ever be repealed.

What is 'The Rule of Law'?

- Complex phenomenon with no fixed definition or meaning and is a value of constitutional law rather than a rule as such. 

-Essence =Sovereignty of law over man

Characteristics of the Rule of Law:

• - Every individual must be subject to law
• - Officials must not be above the law
• - Law must apply equally to all
• - Law must be prospective not retrospective
• - Law must be a clear guide to conduct
• - It must be possible & not impossible to satisfy legal requirements
• - Law must be relatively stable
• - Law must observe the principles of natural justice (fair trials, legal advice, objective judges)
• - Must be independent, easily accessible courts
• - Plan our existence on the rules that exist

Dicey and the Rule of Law:

Three main principles for the rule:

1) Punishment only for breach of ordinary law (Article 7 ECHR: no crime without pre-existing offence)

2) Everyone is subject to law and to the ordinary courts

3) Common law protects individuals by responding to and remedying the particular legal needs of people (freedom until the enroachment of the law says so. 

The rule of law is:

1) A challenge to State authority and power

2) Power must be granted legitimately and exercised according to law

3) It imputes the concepts of legitimacy and constitutionality

Definition and history: The exercise of power by different institutions performing different functions with system of checks and balances

• - John Locke in 1690 elobrated the need to separate the powers and functions of the legislative and the executive branches of state power
• - Montesquieu in 1748 'The Spirit of the Law': 'In every government there are 3 sorts of powers: the legislative, the executive and the power of judging.' He argues there should not be an overlap of powers or personnel except to create a framework of unfettered power'. 
• - Hood-Phillips & Jackson 2001: 'there is not, and never has been, a strict separation of powers in the English constitution in the sense that the legislative, executive and judicial powers are assigned respectively to different organs, nor have checks and balances between them been devised. Development has been mainly empirical'. 
• - Marshall 1971: 'Firstly it is rarely clear whether there is such a separation. The argument is inconclusive'. 
• - Lord Mustill 1995 in R v Home sex, ex parte Fire Brigades Union: '..conception of the separation of powers that Parliament, the executive and the courts each have their distinct and largely exclusive domain. Parliament has a legally unchallengable right to make whatever law it thinks right. The executive carries on the administration of the country. The courts interpret the laws and see that they are observed. 

Content of the doctrine of separation of powers:

Ideally, it means:

• No mutual membership of different organs (or branches) of government
• No branch of government should do the work of another
• No branch of the government should influence or control the work of another

It contains:

• Executive (PM, Cabinet and Civil Service)
• Legislative (Parliament: Houses of Commons and Lords)
• Judicial (Courts: UK Supreme Court, Court of Appeal, High Courts etc)

Overlaps:

• Executive: (PM and Cabinet are in Parliament but not Civil Servants. PM effectively appoints Lords!)
• Legislature: (Commons is elected, Lords is appointed. Parliament effectively appoints the Executive)

Overlaps: Executive and Legislative

Functions and personnel:

• Executive: administer law, account to Parliament for administration of State, propose primary legislation, create secondary legislation. Appoint judges. 
• Legislature: supreme power in the State, create law, hold exec to account, national debating chamber. Exercise judicial authority in electoral matters. MP's can't work as judges. 
• Judiciary: interpret and enforce the law. Honour supremecy of Parliament (EU and HRA? impact). Develop common law (make law??) Hold the executive to account (rule of law?) Judges cannot be MP's. Supreme Court took judges out of Lords (Parliament)

How many branches are there?

- Montesque = 3 branches

- Locke = 2 branches

- Europe = 4 or 5 or more?

IMPERFECT AND FLAWED SYSTEM!!!!!!

..