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The Sovereignty Of Parliament Notes

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The sovereignty of Parliament

[Introduction]
Diceyan Orthodoxy
Dicey 'The Law of the Constitution' 1885 - The Principle of
Parliamentary Sovereignty means…that Parliament… has, under the
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 override or set aside the
Legislation of Parliament.
Whatever the Queen-in-Parliament enacts as a statute is law (Dicey)
 Original conception of PS

3 implications drawn from this (Barber)

1. Rule of hierarchy of legal sources, statutes are at the top a. Conflict between different sources b. Pickin i. The function of the court is to construe and apply the enactments of Parliament.
ii. Courts should stay away from enquiring into the manner in which Parliament performed its functions in the legislative process iii. Will not assess the statute with regards to countervailing conditions iv. Parliament has the final say on the content of the law, judges had to only accept it c. De Keyser i. If there is conflict between statute and prerogative,
statute wins d. Both cases assert that statute are the highest source of law within the system

2. Doctrine of implied repeal a. Conflict between laws of the same source b. Precedence is given to the more recent statute, even if the recent statute does not explicitly repeal the earlier statute c. Ellen Street Estates i. 1919 statute required a higher level of compensation which seemed to say that this would hold indefinitely,
while a 1925 Act required a lower level of compensation ii. Court of Appeals held that a more recent Parliament would impliedly repeal the earlier one, gave effect to 1925 Act

3. Inability of parliament to bind itself a. Implication of (1) & (2)
b. Parliament cannot impose substantive limits on itself - no entrenchment

Hart's rule of recognition - 'the ultimate rule which identifies the sources of law in our legal system and imposes a duty to give effect to laws emanating from those sources'
Hart explains that in a legal system its RoR is seldom expressly formulated, rather, its existence is shown, and its content deduced, in the way in which particular rules are identified -
Hence, RoR in the UK - something constitutes a valid AoP if
(1) it has been approved by HoC & HoL
(2) given royal assent and
(3) to the extent that it is not inconsistent with any provision in a subsequently enacted AoP

Craig - substantive/procedural dimensions divide
Substantive dimension
 No substantive limits placed on Parliament
 Full subject-matter authority without any limits
 No Act of the sovereign legislature could be judicially invalidated
 Always open to the legislature to repeal any previous legislation;
no Parliament can bind its successors

Continuing sovereignty - each Parliament in turn possessed full sovereign authority, and could expressly repeal any acts of Parliament Procedural dimension
 No procedural limits on Parliament - it can do anything it wishes by simple majority
 It is not legally possible to entrench legislation in the UK
o Entrenching legislation - Parliament puts into its acts a requirement to eg. only be repealed or amended with 2/3 of the vote

Implied repeal cannot be abolished - inconsistency between two acts of different times dealing with the same subject matter, the newest act will implied overrule the earlier one
 Ellen Street Estates - even where P attempt to bind itself, courts ignore it to preserve procedural PS
 Thoburn - P being sovereign cannot abandon sovereignty
 Only one limit to Parliament's legal power: it cannot detract from its own continuing sovereignty

___

1. Should Parliament be sovereign?
a. Concerning passage of flagrantly immoral laws &
means of restraint b. For political constitutionalism - argument that legislators' own sense of morality and political backlash would make it impossible for them to enact immoral laws c. For legal constitutionalism - that political restraints failed to stop enactment of many retrospectively immoral laws testament that it is insufficient. Legislators however only reflect the choices of the electorate - it is the majority that cannot be trusted e.g. post 9/11 legislation regarding suspected terrorists d. Ultimately, no clear and definitive conclusion possible

2. What does Parliamentary sovereignty mean?
a. No legal limit to the laws it may enact - Dicey: No one can lawfully override, derogate from, or set aside an Act of
Parliament i. Corollary is that an unconstitutional Act of
Parliament is an oxymoron ii. Any restraint that parliament exercises flows from the political, not the legal system

3. Self-imposed constraints a. Accepting the orthodox opinion, if the constitution imposes no external constraints on Parliament, are self-imposed constraints a possibility?
i. Paradox: If parliament can do literally anything, then it must include the competence to limit its own powers, but then in that case it would no longer be sovereign?
ii. Example of whether parliament is capable of entrenching legislation by providing that future parliaments are required to respect a statute, e.g. Bill of Rights - and that any bills enacted in breach of it would be invalid b. Model I (Wade) - PS as a constitutional fixture i. No entrenchment - Wade argued in 1955 that it is impossible for parliament to entrench legislation because courts are constitutionally required to give effect to the most recent expression of parliamentary intent whenever two Acts conflict

1. Parliament can state in a later Act that some or all of an earlier act is repealed - express repeal

2. Even if parliament enacts new legislation at odds with earlier legislation, it is the courts'
constitutional duty to enforce the new law and disregard the old - implied repeal, endorsed in Ellen Street Estates ii. Implications of courts' constitutional duty:

1. Legislation enacted by parliament saying that
'this act may not be repealed' has no legal effect - Wade. Absolute entrenchment is then impossible

2. Conditional entrenchment - original act says it may not be repealed unless a condition is fulfilled - e.g. requiring 2/3 of the HoC - Wade argues that express or implied repeal will still take effect regardless of the condition iii. Ultimately, the question is whether parliament has a self-embracing sovereignty or continuing sovereignty. In the first, parliament's powers extend to destroying its own sovereignty, in the latter, it is thought that sovereignty cannot be destroyed, so parliament must not be able to entrench legislation iv. Why does Wade think parliament has a continuing sovereignty?

1. Basis of UK parliament's authority resides in the political agreement between the monarch, Parliament and the courts in the 17th century revolution - The king, alongside the courts, agreed that duly enacted parliamentary legislation had to be recognized as law of the land

2. Hence, PS is not a legal rule in any recognizable sense, but rather the ultimate political fact upon which the whole system of legislation hangs - what Hart refers to as the 'rule of recognition' - the rule that tells everyone, including the courts, what to recognize as law

3. Entrenching legislation changes the rule of recognition - one thing parliament cannot do,
because parliament is only sovereign in the sense of being able to make or change any law, but the rule of recognition is not a law
- it exists in the political realm, beyond parliament's legislative reach c. Criticism of Wade i. He provides an exclusively historical explanation for PS and does not take into account the current principle justification - that it is a democratic institution

1. Allan argues that if democracy justifies parliament's lawmaking powers, it must also limit its authority - i.e. that enacting legislation at odds with basic principles of democracy is unconstitutional and unlawful ii. *That lawmaking authority of parliament arose through non-legal means does not necessarily entail that the rule cannot be legally manipulated d. Model II - Parliament capable of controlling certain aspects of legislative process i. 'New view' of PS - parliament can make it easier or harder than usual for a given statute to be amended or repealed (manner & form), but they should not be able to make it impossible ii. Absolute entrenchment would allow a given parliament to enshrine its views in legislation that could never be altered

1. Undemocratic to people in the future

2. Impractical - circumstances may change to make these laws inappropriate iii. Argument that permitting contingent entrenchment of legislation - e.g. requiring 2/3 majority - is the desirable middle ground between extreme entrenchment (problems of which mentioned earlier) and no entrenchment, which would mean that there can be no hierarchy of laws

1. E.g. European Union Act 2011 provides that a treaty transferring additional powers to the EU
could only entered into by the UK if approved in a referendum - this undertaking is arguably legally meaningless since it can be overridden by a further AoP without holding the referendum iv. New view argued to be consistent with notion of PS -
sovereignty includes capacity for enacting, amending or repealing any law - parliament continues to be capable of all these things even if certain conditions must first be fulfilled e. Criticism of the 'new view'
i. Does not accurately describe position adopted by UK
law in reality

1. Ellen Street Estates - Maugham LJ -
Parliament "cannot… bind itself as to the form of subsequent legislation."

2. Laws LJ in Thoburn - "Parliament cannot bind its successors by stipulating against repeal', 'cannot stipulate against implied repeal any more than it can stipulate against express repeal', & 'Being sovereign, it cannot abandon its sovereignty.'
ii. Generational dictatorship (Barber)

1. If earlier P can bind later P - effectively allowing one generation to bind the next a. Contravene ideal of ensuring that each generation can govern itself and decide for itself which laws it wanted

2. Even if all Ps are Parliament, each 5 year HoC
in an important sense a different parliament - allowing Ps to bind future Ps ultimately involves not X binding itself with its consent, but X1 binding X2, which X2 never asked for. This is fundamentally different iii. Can make it prohibitively difficult to repeal earlier legislation, effectively extinguishing PS
f. While the continuing theory & the new view differs on whether parliament can be subject to intended constraints, they agree that it is free from unintended constraints - those that do not derive from conditions imposed by parliament itself

[**Important themes]

Self-imposed constraints on Parliament

1. ECA 1972 a. Why?
i. By giving effect to EU laws in the UK and providing that EU law should take priority over UK law,
including AoP - PS dictates that any other sources of law had to give way to statute (Barber)

1. S2(4) of the ECA provides that any AoP "shall be construed and have effect subject to the foregoing provisions of this section."
ii. However, Lord Denning confirmed in Macarthys that express derogation can work -

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