Parliamentary Sovereignty Notes

Parliamentary Sovereignty

• Madison in the Federalist Papers argued some values were too important for ordinary politics

• Entrenchment

  • Procedural Entrenchment - procedurally protected law (e.g. a super majority required)

  • Substantive Entrenchment – laws that cannot be repealed.

• West Virginia on v Barnette US Supreme Court (1943)

  • Justice Robert H. Jackson: forceful defence of free speech and constitutional rights generally as being placed “beyond the reach of majorities and officials.”

• US the the sovereign lawmaker is 'the people'

  • The people are: 2/3 majority in Congress or 2/3 of States to propose and 3/4 of state legislatures to ratify

• Sovereignty in the UK – four ideas:

  • 1) The Crown (cf. James I)

  • 2) Parliament (Parker – tripartite structure represents estates of the realm)

  • 3) Common Law (Dr Bonham’s Case (1610))

    • Coke LJ “When an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it”

  • 4) Natural Law

    • Day v Savadge (1615) per Hobart CJ: “even an Act of Parliament, made against natural equity, as to make a man judge in his own case, is void in itself”

• Post 1688 there was a presumption that Parliament was sovereign lawmaker (Blackstone (mid C17) and Dicey (late C19))

  • Civil War (1688) and Declaration of Right settled this dispute

  • Alleged James II had infringed upon liberties by levying taxes and suspending laws without Parliaments consent. Implication people naturally possess these liberties.

  • James was deposed and replaced by William of Orange and Mary

    • A condition of doing this was accepting that sovereign legal power lay with Parliament.

• Blackstone’s Theory (1765)

  • American revolutionary time - If [the legislature] will positively enact a thing to be done, the judges are not at liberty to reject it – Judges not above legislature

  • Bernard Bailyn argues Americans wanted to search for the seams along the fabric of

• Diceyan Orthodoxy

  • Two elements to his statement of constitutional parliamentary sovereignty.

    • 1) The positive limb: Parliament can enact legislation on any subject matter whatsoever;

    • 2) The negative limb: no court possesses the legal power to overturn or refuse to apply an Act of Parliament

  • Therefore

    • There is no distinction in substantive terms between ordinary and fundamental laws enacted by Parliament

    • There is no distinction in procedural terms between ordinary and fundamental laws enacted by Parliament

  • City of London v Wood [1701]

    • “an Act of Parliament can do no wrong, though it may do several things that look pretty odd".

• The Enrolled Bill Rule (Wachope; Lee v Bude and Pickin)

  • Edinburgh Railway v Wauchope (1842)

    • Landowner affected by a private Act of Parliament authorising compulsory purchase of land for the construction of a railway, tried to argue court should declare act void for failing to give sufficient notice.

    • Lord Campbell thought that judging the constitutional adequacy of proceedings in either the Commons or the Lords was entirely beyond the court’s powers.

  • Lee v Bude and Torrington Railway (1871)

    • Wile J: “if an Act of Parliament has been obtained improperly it is for the legislature to correct it by repealing it: but so long as it exists as law, the Courts are bound to obey it”

  • British Railways Board v Pickin.

    • Mr Pickin alleged that British Rail had steered a private Bill through Parliament without giving the necessary notices to affected landowners.

    • Lord Reid explicitly denied that the courts had any power to question the legality of a Bill’s passage through Parliament.

      • Enrolled bill Rule: once a bill is on the statute books it cannot be altered by anyone other than parliament.

• The Doctrine of Implied Repeal

  • Vauxhall Estates Ltd v Liverpool Corpn [1934] and Ellen Street Estates Ltd v Minister of Health [1934]

    • Acquisition of Land Act 1919 s.7

    • The landowners affected sought to have compensation assessed on the basis used in the 1919 Act.

    • Housing Acts of 1925 and 1930 made these provisions less generous.

      • Cannot procedurally entrench act - 1919 Act: “as inconsistent with this Act those provisions shall cease or shall not have effect”

    • Distinguished express and implied repeal - ‘functionalist’ approaches to parliamentary sovereignty

      • Summarily rejected at appeal: the judges adopted instead a formalist approach that the courts unquestioningly obey the most recent Act of Parliament.

  • Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590

    • Scrutton LJ: “Parliament can alter an Act previously passed…by enacting a provision which is clearly inconsistent with the previous Act”

      • Thus Parliament can impliedly repeal any previous act – it is the latest statement that prevails in court, Parliament can bind itself.

    • Maugham LJ: “The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation”

• Relationship with International Law

  • Mortensen v Peters [1906]

    • 1889, the British Parliament passed the Herring Fishery (Scotland) Act, made it an offence to catch herring in the Moray Firth without a licence.

    • Mortensen was a Danish captain of a Norwegian Trawler breached these laws, argued that this breached international law which limited jurisdiction to three miles off coast.

    • Lord Salvesen: “In this court we have nothing to do with...whether an Act of the legislature is ultra vires … For us, an Act of Parliament…is supreme and we are bound to give effect to its terms”

  • Treaties are negotiated and formally entered into by the Crown (or ‘the government’) through its prerogative powers, not by Parliament.

    • Treaty signed by the British government can only have legal effect in Britain if it is incorporated into British law by an Act of Parliament.

  • Cheney v Conn [1968] 1 WLR 242

    • Cheney claimed that some of his tax money was being used to build nuclear weapons, contrary to the principles of the Geneva Convention, a treaty the British government had signed.

    • Argued illegal for...

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