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Parliamentary Sovereignty Notes

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This is an extract of our Parliamentary Sovereignty document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Oxford students.

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Parliamentary Sovereignty The Traditional View The New View of Sovereignty The Real Traditional View of Sovereignty Where does Parliament's legislative authority come from?
What is an Act of Parliament?
On the devolution of Scotland The Separation of Powers and Parliamentary Sovereignty The Challenge from the EU The impact of EU law supremacy The Challenge from the ECHR

1. THE TRADITIONAL VIEW

* Put forward by Wade in Wade (1995) 13 CLJ 172

* Parliament is sovereign because no Act could be invalid in the eyes of the Courts, it could repeal any previous legislation, it can't band its successors, and there is only one process for enacting sovereign legislation - where it is declared to be the joint Cat of the Crown, Lords and Commons. Where there is a conflict between two Acts, the later repeals the earlier. Parliament cannot entrench legislation, such as make a Bill of Rights repealable only by some specially safeguarded process. The one limit on Parliamentary Sovereignty is that it cannot detract from its own continuing sovereignty.

* There can be no substantive limit on what current Parliament can do.

* Procedural - Parliament can do anything it would like by a simple majority, even where previous Acts have specific clauses stating that they can only be appealed or amended by a 2/3 majority.

* 3 justifications to this viewpoint:

* Previous constitutional writers said the same thing (Coke, Blackstone and Dicey) BUT each concludes that Parliament is sovereign on completely different reasoning

* Cases - some are supportive of the Wade line, BUT cases are distinguishable by later courts. They have no constitutional authority. If a case were to arise where Parliament expressed a severe imposition of a human right, then the court might say that there are limits to its power.

* The Rule of Recognition 'Ultimate legal principle' - rule from which rules derive their authority. The rule enjoining judicial obedience to statutes is one of the fundamental rules upon which the legal system develops. It is a requisite that the law should postulate one or more first causes, whose operation is ultimate and whose authority is underived. By-law given force by an Act of Parliament, which is not given force by anything else - it is legally ultimate. No statute can alter or abolish that rule because it is itself the source of authority of statute. To say that Parliament can change the rule because it can change any other rule is to put the cart before the horse. This rule is changed by revolution, but not by Parliament. BUT the Court could refuse to apply legislation, there would be a power struggle, and Parliament may end up no longer sovereign.

2. THE NEW VIEW OF SOVEREIGNTY

* Accepts the traditional view in so far as there can't be any substantive limit to what Parliament can do, but there can be formal or procedural limits. E.g. If a statute states that it cannot be altered except by a 2/3 majority, then it can't be altered by a simple majority.

* The case law to support this only applies to non-sovereign legislature, such as New South Wales, but it is not inapplicable to UK.

* 'Manner and Form' Sovereignty: If the rule is that the courts accept as law that which is made in the proper legal form, no rule shall be law unless it is enacted by the legislature in the proper legal form. If Parliament was truly sovereign, it would be able to provide another manner and form, for it can enact laws which change the law affecting itself. The Parliament Act 1911 provides the current manner and form of legislation, but Parliament could make a new manner and form if it so wished. If the Courts will only recognize what is enacted in the proper legal form, then Parliament can bind its successors to manner and form, and that sovereignty of future Parliament is qualified and precarious.

3.THE REAL TRADITIONAL VIEW OF SOVEREIGNTY

* Coke, Dicey and Blackstone all reached the conclusion that Parliament was sovereign, but didn't rely on previous cases or jurists, just descriptive and normative reasoning.

* Descriptive: Parliament is Sovereign because no one else can tell it what to do

* Normative: Normative value judgements underlie each rule. A reason or principle to justify why Parliament ought to have omnipotence, or no substantive limit.

* Blackstone: The normative reasoning used was one of balanced constitutionalism - Parliament has 3 elements, the King, the Commons and the Lords, and each checks and balances the others. However, Commons is now the top dog, so we no longer have a balanced constitutionalism.

* Dicey: 1. Who could stop them? 2. Parliament ought to be sovereign because democracy is self correcting. People elect MPs, MPs choose the Government, therefore people control the government, and the government will not do anything to harm the people. However, they will pass legislation that harms the people.

* The principle argument for Parliamentary sovereignty in the 21st Century would be that now we have a full franchise in which people elect Parliament. The Parliament thus elected has democratic legitimacy. There is no reason to impose any limit on what Parliament can do. Why substitute the argument of a democratic legislature for that of an unelected court?

* Lord Hope, "Our constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.

4.WHERE DOES PARLIAMENT'S LEGISLATIVE AUTHORITY COME FROM?

* Not from Parliament itself as 'no statute can confer this power on Parliament for this would be to assume and act on the very power that is to be conferred.'

* Not from the decisions in the courts, because by similar logic, no decision of the court can confer ultimate authority to decide on the courts, for this would be to assume the very power to be conferred.

* Through a historical process - The pattern of past events may be assumed to continue.

* Dicey attributes it to the 'constitution' but because we lack a written constitution, this causes some difficulties. Also from the democracy, because 'the electors can in the long run always enforce their will.' BUT, the electorate cannot always achieve its will, even supposing that it is possible to discover what the will of the electorate as an entity may be.

5.WHAT IS AN ACT OF PARLIAMENT?

* The Courts cannot question the validity of an Act of Parliament as no judicial review exists in the UK on Acts of Parliament. Although the Courts cannot review the contents of legislation, they can review whether the essential procedures of legislation have been observed - whether they have followed the 'manner and form' requirements that they have imposed on themselves. See R (Jackson) v Attorney General.

* For a Bill to be presented for the Royal Assent, it must be approved in each House (Under the enrolled Act rule). The Lords only have a delaying power of 1 year.

* Ellen Street Estates Ltd v Minister of Health: In this case an inconsistency between two statutes was in dispute. The Acquisition of Land (Compensation) Act had a provision that provisions of later Acts which are inconsistent with it shall have no effect. The Housing Act 1925 had such inconsistent provisions. Held that the legislature cannot bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute there can be no implied repeal. Parliament cannot bind itself as to the substance of later legislation.

* The Parliament Act 1911: contains provisions to remove the power of the Lords to veto or delay Money Bills, as well as other provisions intended to place the Lords-Commons relationship on a new footing. The Act provides that a Bill may become an Act without having been approved by the Lords in certain circumstances, and that the Speaker's certificate that the requirements of the Acts have been complied with

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