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Con & Ad : Parliamentary Sovereignty Legal or political sovereignty?
?????Distinction between Parliament can do (legal), and what Parliament would do (political).
?????Eg Brexit, Article 50---if parliament voted on Brexit, parliamentary legally has sovereignty, could vote against it; but, politically, felt unable to do so given the referendum result. Legal sovereignty
? Post 1688 Settlement: o Parliamentary supremacy. o Bolstered by modern democracy.
? Absence of codified/entrenched constitution. Parl Sov = guiding principle in UK.
? Distinction with political sovereignty. Intro to Parl Sov
? Traditional analysis of UK constitution: no limits to the legislative competence of Parliament. Doctrine of unlimited sov of Parliament---product of struggle between Parliament and Crown, culminating in Glorious Rev 1688 and subsequent Bill of Rights. A. V. Dicey - 3 Basic 'Rules' of Parliamentary Sovereignty
1. Parliament is the supreme law-making body.
2. No Parliament can bind a successor (or be bound by a predecessor).
3. No person or body may question the validity of an Act of Parliament.
(1) Parliament = Supreme Law Making Body
?????Dicey: 'Parliament . . . has the right to make or unmake any law whatsoever.'
?????Note that Dicey's theory is concerned purely with the absence of any legal limitations on Parliament---he acknowledged there were clearly political limits on what Parliament could do.
?????No limitations on:
? ?? ? (a) No subject limitations--Subject matter of acts: o Sir Leslie Stephen (1882): Parliament could pass an Act saying 'all blue eyed babies should be killed'. That's what Dicey is telling us, Stephen saying. o That Parliament can pass legislation however absurd, unjust or impractical. o Jennings, post-war, made a similar point. He says: if Parliament wanted to ban smoking on the streets of Paris, they could pass such an Act.
1 o Stephen and Jennings both point out: the difference between what you can do, and what you would do. Dicey's not interested in that distinction. o Parliament can pass laws to alter or regulate its own terms of office, eg Septennial Act 1715 and Fixed-term Parliaments Act 2011. o And it can limit the power of its own constituent bodies, as in Parliament Acts 1911 and 1949. o And can create legislation that changes aspects of the constitution:
? Ex parte Canon Selwyn (1872): validity of Irish Church Act 1869 was challenged by a priest, on grounds it disestablished his church in Ireland, contrary to Act of Union with Ireland (1800).
? Argument was rejected. HELD, Cockburn CJ: 'An Act of Legislature is superior in authority to any court of law'. o European Communities Act 1872 and HRA 1998 have altered the constitutional framework of UK. Parl can legislate contrary to human rights
? R v Home Sec, ex parte Simms (2000): Lord Hoffman, obiter: parl sov means 'that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights'---but this can only be achieved through absolutely explicit wording by Parliament.
? 'fundamental rights cannot be overridden by general or ambiguous words . . . In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual'. o Can legislate contrary to public international law:
? Cheney v Conn (1968): Parliament can override international law. A taxpayer challenged validity of the Finance Act 1964. He argued it conflicted with Geneva Convention, a treaty to which UK was a party, because part of the tax collected would go to the manufacture of nuclear weapons. Ungoed-Thomas J: 'What the statute itself enacts cannot be unlawful
. . . it is the highest form of law known to this country'.
????? (b) No geographical limitations--geographical scope o Orthodox theory: Parliament can legislate for territory beyond the jurisdiction of the uK, even if this produces conflict with international law. o Mortensen v Peters (1906). Captain of a Norwegian trailer, convicted of fishing in Moray Firth contrary to the Herring Fisheries (Scotland) Act 1889. He was over 3 miles from coast,
2 international law says laws start 3 miles from coast. But he was brought in and sued for shipping in British waters. Because British statute said it extended to 10 miles from coast. But British law overrode international law. Court held it was bound to apply the Act, even though it conflicted with international law.
?????(c) No temporal limits - Time o Can pass retrospective as well as prospective laws. o War Damages Act 1965: had effect of retrospectively nullifying the HL's decision in Burmah Oil v Lord Advocate (1965). o War Crimes Act 1991. A retrospective Act (NB retrospectivity is illegal under Human Rights Act) HL vetoed it, it went through using the Parliament Act after a one-year delay. HL said this act will never work because all the trials will collapse because the evidence will not stand up in court. There have been 3-4 trials using this act, they have all collapsed. But it's still there. o Mental Health (Approval functions) Act 2012; and JobSeekers (Back to Work Schemes) Act 2013: both had retrospective elements.
?????So technically, Parl could ban exploration on the moon in 1927. But whilst legal sovereignty says we can do this; political practicalities means there are limitations.
(2) Cannot bind successors---No Parliament may be bound by a predecessor or bind a successor???Dicey: 'A sovereign power cannot restrict its own powers by any particular enactment'. No entrenchment of legislation. Dicey: Parliament 'has the right to . . . unmake any law whatsoever . . . '. Each new Parliament must enjoy the same unlimited power as any before it. Rationale: if Parliament were to pass a law limiting its power as an institution, a future Parliament would not be supreme. Two forms of repeal Express repeal: legislation expressly states an intention that an earlier Act should be repealed. o Eg the Regulation of Investigatory Powers Act 2000 replaced the Interception of Communications Act 1985. o Express repeal often happens where there is a drive to consolidate and simplify legislation. Eg Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995: all repealed and replaced by the Equality Act
2010. Implied repeal: a later Act impliedly repeals an earlier Act with which it is in conflict: 3
?o If a new Act is partially or wholly inconsistent with a previous Act, the previous Act is repealed to the extent of the inconsistency. o 'Doctrine of implied repeal'. o Vauxhall Estates v Liverpool Corporation (1932) o & Ellen St Estates v Minister of Health (1934) o Both cases involved plaintiffs claiming compensation for property that had been compulsorily purchased from them. According to the defendants, the level of compensation was to be assessed in compliance with the Housing Act 1925. However, plaintiffs said should be calculated according to (the more generous terms) of the Acquisition of Land Act 1919, which had expressly stated that its provisions were to prevail over any others passed or to be passed. o Court held: was bound to apply the terms of the later 1925 Act. If the plaintiff's claim had succeeded, the 1919 Act would effectively have become entrenched. o Maugham LJ in Ellen St Estates: 'The legislature cannot . . . bind itself as to the force of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute . . . there can be no implied repeal'. o Second act repeals by implication the first one. o This doesn't always work, but broadly, two acts clash, the later acts takes precedent. This is principle of 'continuing sovereignty' [Diceyan idea that regards each separate Parliament as a sovereign law-making body, see Alison Young article at bottom]. Does 'doctrine of implied repeal' apply to 'constitutional' statutes: more modern view that implied repeal may not be applicable to certain 'constitutional' statues, such as HRA 1998 and ECA 1972.
? ?? ? 3 main ways in which Parliament could attempt to bind itself: o (1): Substantive limitation: bind itself as to the content of future legislation o (2): 'Manner'/ Procedurally: could prescribe a particular manner in which legislation can be passed or repealed, such as a 2/3rds majority. o (3): 'Form': A restriction that any legiiation dealing with a certain subject should bear a particular form, such as the need for express words. o The last 2 ideas referred to as 'manner' and 'form' entrenchment respectively. (1) Substantive binding?
? ?? ? (a) Union Legislation: the Acts of Union, between England, Scotland & Ireland. Arguments that they were intended to
4 represent a higher form of law, and so substantively entrenched. o Theory: that the Acts of Union were not created by the UK Parliament, but by the original English, Scottish & Irish Parliaments. Hence the Acts created a new UK Parliament that was not sovereign, but limited by its founding constitutional documents. In words of Professor J Mitchell: the new Parliament was 'born unfree'. o McCormick v Lord Advocate (1953): A Scottish Nationalist raised an objection to the designation of the new monarchy as Queen Elizabeth II. Argued that, as a matter of fact, the first Queen Elizabeth had been Queen of Eng but not of Scotland. o Application dismissed on other grounds, but Lord Cooper stated obiter: 'The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish Constitutional law . . . Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty in seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament . . . .' o The argument that the Acts of Union limited parliamentary sovereignty was not definitively rejected by the court, but was left open for future decision o Gibson v Lord Advocate (1975): o The Acts of Union between Eng & Scotland contained some fundamental provisions re the preservation of certain aspects of Scottish law & institutions, eg that alterations in private law must be 'for the evident utility of the subjects in Scotland' (article XVIII). o This case involved a challenge to a European Community common fisheries policy measure, because it gave access to Scottish waters. o The complainant argued that this was a change in private law which was not for the 'evident utility' of Scots, as required by the Acts of Union. o Court hELD: access to fishers was not 'private law', and thus the measure could be not be challenged. However, Lord Keith did not rule out an argument of the kind put forward in situation where it might be more relevant on the facts. o So the arguments in both above cases were quite inconclusive: o Dicey: viewed the Acts of Union as having no higher legal status than any other Act; o It is true to say the UK Parliament has altered many of the principles contained in both the Scottish and Irish Acts of Union
5 o Further, the judicial remarks in McCormick and Gibson were obiter, No Scottish court has actually declared an Act of Parliament to be invalid on the basis that it is inconsistent with the Act of Union.
? ?? ? (b) Grants of Independence o dismantling of British Empire, grants of independence to the colonies. o Several, eg Canada & Australia, thereafter became known as 'Dominions', but were effectively independent nations. o The Dominions' constitutions were established by UK Acts of Parliament. o A British constitutional convention developed that no new UK Act affecting a Dominion would be passed without the request and consent of that Dominion. o Confirmed in Statute of Westminster 1931, which required there to be a recital of the request and consent from the Dominion.
? s4: 'No Act of parliament of the UK . . . shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested and consent to the enactment thereof'.
? So the Statute of Westminster effectively imposed substantive and procedural restrictions on Westminster Parliament's ability to legislate for former colonies. o So raises question: how far did Statute of Westminster 1931, s4, bind its successors?
o British Coal Corporation v The King (1935): a case concerning the ability of Parliament to legislate for Canada in breach of Statute of Westminster, s4. Lord Sankey: ' . . . the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired . . . But that is theory and has no relation to realities'. o Blackburn v A-G (1971): a case concerning UK membership of the European Community, issue of limits on Parl Sov discussed again. o Lord Denning highlighted the distinction between legal theory and political reality: ' . . . in legal theory, one parliament cannot bind another and . . . no act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster 1931 . . . Can anyone imagine that Parliament could or would reverse that statute? [or can anyone imagine Parliament reversing the laws granting independence to the Dominions]....Freedom once given cannot be taken away. Legal theory must give way to practical politics'.
6 o In both above cases, the judicial comments were obiter: and both related to political limitations on Parl Sov, rather than legal limitations. o So some later judges have doubted those view:
? Manuel v A-G (1983):
? Concerned an amendment to the Constitution of Canada by an Act of Parliament.
? Megarry VC clearly re-stated the orthodox view of sovereignty: 'I have grave doubts about the theory of the transfer of sovereignty as affecting the competence of parliament. In my view, it is a fundamental of the English constitution that parliament is supreme . . . .Nor must validity in law be confused with practical enforceability'. o So, the grants of independence do impose very clear political limits on Parliament, but do not limit the theoretical legal power of Westminster to pass law governing these states---this distinction is very much an academic argument some think. o Arguably, a similar distinction is developing re the devolved nations of the UK, notably Scotland [[se below]]
(2) Manner and Form Binding?
??? ?Can Parliament limit itself---procedurally?
??? ?Orthodox Diceyan view: no, can't bind a successor.
??? ?Further, the courts would not entertain a challenge to the subsequent incompatible statute because of the 'enrolled bill rule' laid down in Pickin v British Railways Board (1974), see below.
? ?? ? However, some academics have challenged the orthodox view that Parliament cannot bind its successors. Most obvious challenge relates to HRA 1998 and ECA 1972, discussed below.
? ?? ? Other analysis of Commonwealth cases has led some academics to question whether Parliament can bind itself:
? ?? ? AG for NSW v Trethowan (1932): o Validity of the Constitution Amendment Act 1929 was tested. This inserted a new s7A into the Constitution Act 1902. This provided that no bill to abolish the Upper House could be presented unless it had been supported by a majority of voters in a referendum. Similarly, s7A itself was also entrenched. In order to repeal the section, the same procedure had to be followed: an arrangement known as 'double entrenchment'. o In 1930, a new gov came in, it was decided to repeal the Constitution Act 1902, s7A and abolish the Upper House, through a normal repeal, not through the 'manner and form' clause.
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