Parliamentary Sovereignty
Lecture 6
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It’s a concept that runs through our study of the UK constitution. And its a concept that has been described as the cornerstone of the constitution.
The first thing we need to understand is what we mean by sovereignty – by sovereignty, we are essentially talking about supremacy.
· the difference between political and legal sovereignty
· The origins of the concept of
· The effect and the scope of the concept
· Explain the importance of replied repeal
· And also discuss what it membership of the EU and the Human Rights Act does and does not do to the concept
Political and Legal Sovereignty -
The ultimate authority within the state is both political and legal.
Political sovereignty lies with the people.
- There are various ways in which one can capture the idea of sovereignty within the state coming from the people. Various social contract theorists have captured this belief in different ways. For example:
- According to Thomas Hobbes, man is by nature incapable of regulating his life and therefore has to give over power to a sovereign in the interest of maintaining law and order. Without which life would be – solitary, nasty brutish and short.
- Rousseau – talked about the idea of state sovereignty arising from the collective will of the people. The state embodies the general will of the people. Government exercises this sovereignty on behalf of the people.
- Paine, Locke – had a rights based notion of sovereignty – i.e. citizens give up some rights to the state on a conditional basis - power is in effect held in trust by the government for the people and if the trust is broken.
What we are concerned with in this lesson is the concept of legal sovereignty – how would we define the concept of legal sovereignty. Legal sovereignty resides with parliament. But parliament exercise this authority on behalf of the people.
- What is the relationship between the two? Political sovereignty actually legitimizes legal sovereignty. At the heart of the concept of parliamentary sovereignty lies the relationship between parliament and the executive. i.e. parliament is supreme because the courts recognize them as supreme.
- This can be described in Kelsenian terms as the Grundnorm of the constitution – i.e. the rule upon which all rules are built. Parliamentary supremacy has been recognized by the courts since 1688. The removal of James II, the replacement of James II with William of Orange, and the signing of the Bill of Rights were the events that cemented the concept of Parliamentary Sovereignty in the UK constitution. i.e. It arose out of the continuing conflict between the king and the crown for political power. As we discussed when we had our lesson on the sources of the UK constitution, the key century in the struggle between the crown and parliament for political power was the 16th Century . The then King – Charles, abused his authority in the opinion of parliament by ruling the royal prerogative rather than parliament – this led to civil war and ultimately to the execution of Charles. After about a decade of being a republic, the monarchy was restored, but again there conflicts between parliament and the crown – this time over religion as James was catholic and England was, by then, a protestant nation. Ultimately James was chased into exile, and parliament replaced James with a new set of Monarh’s William and Mary from the House of Orange (in Holland) but they replaced them on their terms - one of the key terms of course was that parliament would be supreme.
This supremacy was enshrined in THE BILL OF RIGHTS of 1689 – from this point onwards, the supremacy of parliament over the crown was undisputed.
- Ex parte Canon Selwyn
“there is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An Act of the legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce a judgment as to the validity of an Act of Parliament”.
Legal Sovereignty
This a legal concept – the concept of the supremacy of parliament is derived from the common law – judges have given it recognition. When we were discussing both separation of powers and the rule of law, we stated that when judges are interpreting statutes, what do they do – the seek to give effect to the will of parliament – not just the will of parliament but the most recent expression of the will of parliament.
Let’s look, as we often do – at Dicey’s formulation of the concept. For Dice – Parliamentary Soverignty meant three things –
A.V. Dicey’s analysis of sovereignty
In Dicey’s view, parliamentary sovereignty entails three principal aspects. Each of these
needs to be studied with care:
a Parliament – the supreme law-making body – may legislate on any subject-matter.
b No Parliament can be restricted by a predecessor or restrict the power of a future
Parliament.
c No body, including a court of law, may question the validity of Acts of Parliament.
- Parliament may legislate on any subject matter
Parliament’s power remains theoretically absolute – i.e. it can pass any law on any subject matter.
This means it can pass laws that have an effect outside of the United Kingdom. Aviation Security Act – criminalizes acts of hijacking irrespective of wherever in the world it takes place
It can legislate retrospectively – i.e. it can make an action unlawful at a time when, at the time it was committed, the Act was lawful.
War Crimes Act – allows for the trial of things that took place during the second world – this was an Act which was passed in 1990.
Retrospective legislation as in Burmah Oil v Lord Advocate (1965)
And you can see it in the treatment of international law – international treaties have no effect in the UK until they are passed by into domestic law by an act of parliament.
Parliament may even abolish itself and reconstitute itself – under the Acts of Union – Parliament of England Abolished, and a new joint parliament of England and Wales is established.
However, there obviously practical limitations on the matters that parliament can legislate on.
Independence statutes, cannot take independence away from the colonies:
Parliament may pass a law declaring all private property – what would be the political consequences of such a law. This does not mean that parliament would never legislate an impossibility
Madzimbamuto v Lardner-Burke (1969) – detained by the government of Ian Smith under the UDI.
Challenge the validity of the Act before the Privy Council – Lord Reid said It is often said that it would be unconstitutional for the UK parliament to do certain things – meaning that the moral, political or other reasons against doing them are so strong that most people would regard it as highly improper if Parliament does these things. But that does not mean that it is beyond the power of parliament to do these things. Parliament chose to do any of them, the courts would not hold the act of parliament invalid.
- Madzimbabuto v Lardner-Burke (1969)
It is often said that the it would be unconstitutional for the UK Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would consider doing those things to be highly improper . But that does not mean that it is beyond the power of Parliament to do such things. If parliament chose to do any of them, the courts could not hold an act of parliament to be invalid.
B. No parliament can be restricted by a predecessor, or can restrict the power of a future parliament.
Vauxhall Estates v Liverpool Corporation –
So if there is a conflict between a statute that was passed in say 1919 and a statute that was passed in 1925, which will expression of parliamentary intent will the courts uphold?
The most recent one – this is the ruling of the court in Vauxhall Estates v Liverpool Corporation. (1932) KB 733. This is what is known as the doctrine of implied repeal – when one finds two acts of parliament that contradict each other, they later one repeals the earlier one. Conflict between two acts which gave two different levels of compensation – one passed in 1925, the other 1919.
Ellen Street Estates v Minister of Health (1934); “The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act parliament chooses to make it plain that he earlier statute us being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.”
But – this doctrine has been held to be inapplicable to acts of Major constitutional importance:
Scottish Act of Union – which seeks to create a permanent Union with Scotland
Macormick v Lord Advocate cases/Gibson v Lord Advocate
What is the legal effect of the Act of Union between the England and Scotland. Which were separate countries – James I of England, was also James VI of Scotland
Article I of the act stated that the two countries shall be a union”forever after” but stated obiter that supremacy is part of English law, never been part of Scottish law.
But we have to examine it again in the manner and form cases – argument that if parliament prescribes a manner in which an act may be changed, then that procedure should be followed .e.g. if parliament suggests that there should be referendum.
European Cases – Impact:
Section 2(4) of the European Communities Act of 1972 – This provides that “ANY ENACTMENT PASSED OR TO BE PASSED…SHALL BE CONSTRUED AND HAVE EFFECT ACCORDING TO THE FOREGOING PROVISIONS OF THIS SECTION” – I.E. THAT ACTS OF PARLIAMENT MUST BE CONSTRUED IN ACCORDANCE WITH EUROPEAN COMMUNITY LAW.
R v Sec of State for Transport, ex Parte Factortame
Merchant Shipping Act disapplied as being contra EU law.
Attorney-General for New South Wales v Trewothan (1932) – s. 5 of the Colonial Laws validity Act, 1865 – i.e. required for the laws – specific form should be followed, otherwise assent would be invalid – Privy Council
Devolution – specific, frequent references were made in which the parliaments of all the devolved home territories were made subservient to the UK parliament.
C. Nobody may question the validity of an Act of Parliament, including a court of law
We have seen this in respect of the attitudes of the courts towards an Act of Parliament – i.e. to give effect to the will of the legislature.
This is given effect to in two ways – one ways is through the Enrolled Bill Rule “which simply states that once a Bill has passed through the requisite parliamentary stages and received royal assent, parliament will not look into how it was passed, even in the even of a defect in the passage of the bill.”
Pickin v British Railway Board. 1974 AC 765
Contemporary Issues and Sovereignty
What is the impact of EU membership on parliamentary sovereignty?
Domesticated – i.e. the treaty of rome has the force of law in the UK because it has been passed by the UK parliament under the statute called the European Communities Act of 1972.
EU bodies intend for EU law to be higher thab domestic law, to supercede this. But how have judges treated this. Section 2(4) of the EU
Human Rights Act – what is the impact on sovereignty – remember the law has actually been domesticated. This means that that it can be applied domestically rather than locally. However, its applied in a way that does not challenge the sovereignty of parliament. If a domestic act is declared contrary to a UK act, the courts refers the offending act back to parliament for parliament to review. It does not invalidate the act the way the Supreme Court of Ghana would, for example.
Discussion:
Jackson v Attorney-General (2005)
The Classic account given by Dicey of the doctrine of the supremacy of Parliament – pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances will arise when the courts may have to qualify a principle established on a different hypotheses of constitutionalism. (Lord Steyn)
Our constitution is dominated by the sovereignty of parliament. But parliamentary sovereignty is no longer, if it ever was, absolute. (Lord Hope)
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