Tagged as: UK Law

Parliamentary Sovereignty Lecture

The implication of Parliamentary Sovereignty is that the Westminster Parliament is legally entitled to pass, amend, or repeal any law that it wishes.  Once both the upper House of Lords and lower House of Commons pass a piece of legislation and the monarch provides the Royal Assent, then no court or other body is able to invalidate the law. Parliamentary Sovereignty is a statement of law, not of politics; politically Parliament may not be able to pass any legislation. The Monarch in Parliament is in this sense sovereign or supreme, having the supreme or ultimate law-making power in the UK. Sovereignty raises several important questions: what is the basis of Parliamentary Sovereignty, can Parliament really pass any law and can a present Parliament prevent is successors from enacting certain future legislation?

A. The History of Parliamentary Sovereignty

The recognition by the Monarch and the courts of Parliament's legislative supremacy was developed in a series of cases during the 17th century.

• In The Case of Proclamations [1611] 12 Co Rep 74; 77 ER1352, Chief Justice Coke stated that he doubted the King's legislative supremacy since he has only the prerogative that the law allows, he is also unable to create a new offence in law.
• However, in R v Hampden (1687) 3 State Tr 825 and Godden v Hales (1686) 11 St Tr 1166 it was argued that the King's prerogative allowed him to levy tax without parliamentary consent in contradiction to Parliament's Petition of right.
• In Dr Bonham's Case (1610) 8 Co Rep 114, Chief Justice Coke argued that it was the common law as developed by the judiciary which was the ultimate legal protection for the people. Coke states (at 118) "...when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void".
• In Day v Savadge (1614) Hob 85, it was held that an Act of Parliament would be invalid if it were 'made against natural equity'.

The Glorious Revolution of 1688 and constitutional settlement of 1689 changed the nature of Parliamentary supremacy. Charles I asserted his exclusive power to rule and to legislate, a power which derived from God. Years later when the throne was offered to William of Orange and Mary, subject to their recognition of Parliament's legislative supremacy, the enshrined within the Bill of Rights 1689, in which Parliamentary supremacy was enshrined in Article 9. The Monarch lost the power to derive an income from taxes, and thus became dependent on Parliament to derive an income [e.g. Bowles v Bank of England [1913] 1 Ch 57]. The powers of Parliament and Parliamentary privilege are clear in the Bill of Rights 1689, but it has been developed over a period of time since then in an incremental manner.

• British Railways Board v Pickin [1974] AC 765 Lord Reid stated that since the Revolution of 1688, the law of God, or nature or of natural justice could not overrule an Act of Parliament.

However, more recently Parliament has been found to be supreme, or sovereign.

M v Home Office and another [1994] 1AC 377, Lord Templeton at 395, from the 17th century Parliament established its supremacy over the Crown, over the executive and over the judiciary.

K Swinton, Challenging the Validity of an Act of Parliament: the effect of enrolment and parliamentary privilege [1976] 14(2) Osgoode Hall Law Journal, 345, 363; the principle of Parliamentary Sovereignty evolved though the struggles between Parliament and the Crown in the 17th century. Parliamentary legislative authority was proved by the end of the 15th century, but it was not clear whether such Acts were still subject to approval by the common law [or natural law]. The Glorious Revolution of 1688 confirmed that to subject such Act so the royal prerogative could not overrule it which is founded on the common law. The principle of Parliamentary Sovereignty is, thus, established under common law.

H.L.A Hart, The 'rule of recognition' is binding because it is accepted by judges and officials; its origin being in politics and ideology. Speculative writings by Lord Woolf, Lord Justice Sedley and Lord Justice Laws challenge the notion that Parliament could make any law and the courts will respect it. Parliamentary sovereignty is, thus, constrained by the Rule of Law and of fundamental rights.

B. Sources of Parliamentary Sovereignty

Jennings (I. Jennings The Law of the Constitution (5th edn, London University Press, 1959) asserts that Parliamentary Supremacy is rooted in the legal rule that courts accept legislation that Parliament enacts as law. Whereas Dicey (A.V Dicey, Introduction to the Study of the Law of the Constitution, 1885) maintained that Parliamentary Sovereignty is contained within the common law. 

In fact, the sources of Parliamentary Sovereignty are to be found within the UK constitution, which in the absence of a written constitution is to be found in:

• statute law;
• common law;
• constitutional conventions;
• some other category of norm?

i. Statute

The basic rules of parliamentary supremacy are not in Statute, as some commentators explain why this is not possible.

Sir John Salmond Jurisprudence (12th edn, Sweet and Maxwell, 1966:111) stated that "no statue can confer this power [parliamentary supremacy] upon Parliament, for this would be to assume and act on the very power that is to be conferred". Parliament is incapable of conferring sovereignty upon itself via Statute.

Eric Barendt, An Introduction to Constitutional Law (OUP, 1988:87) "Parliament could declare .. that it is legally sovereign and [able] to enact any legislation it likes. But [this] would not add anything to its legislative capacity. Parliament can hardly confer constitutional authority on itself by its own enactment".

Parliament can acknowledge its law-making power in legislation, but not confer it; e.g. s.28 Scotland Act 1998.

ii. Common Law

Eric Barendt, An Introduction to Constitutional Law (OUP, 1988:86) discusses the source of the UK's Parliamentary legislative authority and the scope of that power. It is the courts that must also decide whether Parliamentary authority prevails over inconsistent rules of EC law. "It is therefore the courts, rather than Parliament itself, which have formulated the principle which is the corner-stone of the uncodified constitution of the United Kingdom".

iii. A constitutional convention?

This idea can be rejected on the basis that constitutional conventions are not justiciable and enforceable by the courts, whereas the courts can apply the parliamentary supremacy rules.

iv. Another category of norm?

Several writers have argued that parliamentary supremacy is in a class of its own. For example:

H.W.R Wade. 'The basis of legal sovereignty' [1955] CLJ, 172 "[I]f no statute can establish the rule that the courts obey Acts of Parliament, similarly no statute can alter or abolish that rule. This rule is above and beyond the reach of statute [...] because it is itself the source of the authority of statute. This puts it in a class by itself among rules of common law, and the apparent paradox that it is unalterable by Parliament turns out to be a truism" .. "the relationship between the courts of law and Parliament is first and foremost a political reality".

C. Theories of Parliamentary Sovereignty

Parliamentary sovereignty is said to be the power that has been given to that body by the people to enable it to make the law so as to permit a stable form of government, that is capable of providing a social contract with the people that provides them with safety and security.

A.V Dicey, Introduction to the Study of the Law of the Constitution, 1885, three main principles of Parliamentary Supremacy:-

1. Parliament is the supreme law making body and can enact laws on any subject matter
2. Parliament cannot bind its successor
3. No court of law (or other body) can question the validity of Parliaments enactments

Considering each in turn:

Principle 1: Parliament can enact any law on any subject matter it chooses

Parliament can enact laws on any subject matter, but politically this may not be possible. For example, it might be politically impossible to enact legislation, which requires women and men to own property as a precondition of voting. Parliament has enacted retrospective legislation which affect acts which occurred prior to the passage of the Act. Article 7 European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) prohibits retrospective legislation that leads to criminal sanction. Parliament has also enacted legislation, which operates extraterritorially, such as the War Crimes Act 1991, and the Criminal Justice and Immigration Act 2008.

A series of cases decided towards the end of the British Empire illustrate some practical limitations on Parliament's legislative competence:

British Coal Corporation v R [1935] AC 500, the Privy Council affirmed the impact of the Statute of Westminster which gave legislative independence to Canada and Australia. Section 4 Colonial Laws Validity Act 1865, thus, limited Parliament's legislative competence in providing that the Westminster Parliament could only pass legislation for the Dominions with their consent.

Madzimbanuto v Lardner-Burke [1969] 1 AC 645 if Parliament chose to pass a law which is morally, politically or otherwise improper, the courts cannot hold the Act of Parliament to be invalid. The case involved the Southern Rhodesia Act 1965, which asserted the Westminster Parliaments legislative supremacy over Southern Rhodesia, despite Ian Smith's unilateral declaration of independence in the newly created Zimbabwe.  Although Parliament can enact any law, it does not mean that Zimbabwean citizen's could be forced to acknowledge its supremacy.

Some authors argue that some areas are beyond the reach of the Westminster Parliament. In McCormick v Lord Advocate (1953) SC 396, the Lord President indicated that parliamentary sovereignty in its traditional formulation was English, not Scottish. He argued that the Act of Union with Scotland 1707 which provided for amendment or repeal of certain sections, but not all. Practically the change in the relationship between Scotland and England would require significant political negotiation, however, in a strictly legal sense there may be a problem from the Scottish side, but not from the English side.

Principle 2: May Parliament Bind Subsequent Parliaments?

Entrenchment

Jennings and Heuston consider that Parliament may entrench legislation under some circumstances so as to bind future parliaments. Heuston's understanding or parliamentary supremacy makes it possible for Parliament to change the way that legislation is enacted and to provide for legislation to be entrenched.

I. Jennings The Law of the Constitution (5th edn, London University Press, 1959: 152-3) challenges Dicey's theory, he argues that supremacy is a more accurate description of Parliaments legislative competence. He suggests that Parliamentary Supremacy is a legal concept, which describes the relationship between Parliament and the courts. He states that this 'means that the courts will always recognise as law the rules which Parliament makes as legislation' (1959:149). Later he states '... Legal sovereignty is merely a name indicating that the legislature has for the time being power to make laws of any kind in the manner prescribed by law' (Jennings, 1959:152).

R.F.V. Heuston, Essays in Constitutional Law (2nd edn, Stevens and Sons, 1964:6-7) asserted that a new view of sovereignty had overtaken Dicey's theory.  Heston argues that

1. Sovereignty is a legal concept: rules, which identify the sovereign and decide its formulation and functions are logically prior to it.
2. The rules which govern the composition, procedure and area of powers of the sovereign legislature can be distinguished;
3. The courts can question the validity of an Act on its composition, on its procedure, but  not on the powers of the legislature;
4. This jurisdiction can be exercisable before or after the Royal Assent.

There is no legal limit on the laws that Parliament may enact, therefore any constraints are political and not legal. The UK constitution imposes no constraints on Parliamentary Sovereignty, where do constraints come from? Is Parliament capable of entrenching legislation, requiring that the legislation can neither be repealed or amended? There are various theories by various scholars which offer solutions to this question. 3 options have been presented that might answer this question:

1. Parliamentary sovereignty as a constitutional fixture
2. Parliament is capable of controlling certain aspects of the legislative process
3. Unintended constraints exist upon parliamentary authority

The doctrines of express and implied repeal are used when the courts are faced with two Acts of Parliament on the same subject matter that contradict each other. Some writers argue that there is no entrenchment.

Entrenchments clauses and prospective formulae are statutory provisions, which attempt to protect an Act of Parliament from amendment or repeal. An entrenchment clause requires that a special procedure be adopted in order to amend or repeal a specific Statute, such as a referendum or a two-thirds majority in favour. A clause of this kind appears within s.1 Northern Ireland Act 1998. It requires that Northern Ireland will remain part of the United Kingdom until a referendum is held to illicit the will of the people, requiring a majority of the Northern Irish people to require leaving the UK.

Prospective formulae seek to protect a statute from repeal or amendment by stating that its provisions prevail over those of subsequent statutes. An example of such a provisions exists within s 2(4) European Communities Act 1972 which provides that any enactment shall be construed to have effect subject to the provisions of section 2(4). [see section G below on the impact of the UK's accession to the European Community Treaty of Accession of 1972].

Express or Implied Repeal

In 1955, H.W.R Wade 'The Basis of Legal Sovereignty' [1955] CLJ 172 argued that it was impossible for Parliament to entrench legislation because the courts are constitutionally required to give effect to the most recent expression of parliamentary intention whenever two Acts conflict.

• First, it is always possible for Parliament to enact legislation that leads to some or all of an Act being repealed [express repeal].
• Second, if Parliament contradicts existing legislation with a new law, it is still the courts' constitutional duty to disregard the older law in relation to the inconsistency between the two [implied repeal]. Endorsed in Ellen Street Estates Ltd v Minster of Health [1934] 1KB 590

In Ellen Street Estates Ltd v Minster of Health [1934] 1KB 590, Maugham LJ states:

The legislature cannot, according to our constitution, bind itself in 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 the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature.

When two laws conflict the more recent legislation is preferred over the older legislation. Wade argued that both express and implied repeal cannot be displaced. For example, in Wade's view a section that states 'This Act may not be repealed' would have no effect. Absolute entrenchment is then impossible. If an Act states that it cannot be repealed if some condition is first fulfilled, if Parliament were then to expressly or impliedly repeal the earlier Act, in Wade's view the latter Act would still repeal the earlier Act, whether or not the condition stipulated in the latter had been fulfilled. This means contingent entrenchment is impossible.

How can Wade assert (i) that Parliament is sovereign, but (ii) it is incapable of entrenching legislation? Parliament's sovereignty is self-embracing; it has the power to destroy its own sovereignty. Wade asserts that the UK Parliament has continuing sovereignty, which cannot be destroyed, and thus Parliament cannot entrench legislation.

Principle 3: No court or body can question the legal validity of an Act of Parliament

Principle 1 means there is no area on which Parliament cannot legislate and principle 3 means that once it is enacted no institution or individual can question its validity.

Manuel v Attorney General [1983] Ch 77 - case confirms that it is the duty of the court to obey and apply every Act of Parliament, and the court cannot hold an Act to be ultra vires. Courts are not entitled to consider any defects in parliamentary procedure leading to the enactment of the legislation. Courts may invalidate delegated legislation which is deemed to be ultra vires.

Stockdate v Hansard [1839] 9 Ad & E 1; 112 ER 1112, a resolution of only the House of Commons cannot make or alter the law; it needs to be the concurrence of the three legislative estates. 

Parliament does recognise some limits on its supremacy, but it is arguable that these are political limitations. In instances when statutes contradict a provision of international law, in the UK 'dualist' system such provisions are not binding on Parliament unless Parliament enacts a statute to bring it into effect.  International law does not render a contradictory domestic law void.  Cheney v Conn [1968] 1 All ER 779 asserts the hierarchical superiority of Acts of Parliament even over international law. Courts operate the principle that Parliament does not intend to legislate in contradiction with international law, so if possible interpret the Statute to give consistent meaning with that of the international provision.

D. Continuing Sovereignty

Parliament has the authority to make the law by the constitution. The UK does not have a written constitution; Wade considered that the Glorious Revolution gave Parliament the authority to make the law. England experienced a serious tension between the King and Parliament in the 17th Century; with the two vying for constitutional primacy. The basis of Parliament's authority to make law consists of a political agreement made in the 17th century between the monarchy, Parliament and the courts. It was agreed that Parliament could make any law and that the courts would recognise Acts of Parliament as valid laws.

Wade states that this agreement is not a legal rule in any sense - Parliament did not legislate to afford itself authority. It is rather 'the ultimate political fact upon which the whole system of legislation hangs' H.W.R Wade 'The Basis of Legal Sovereignty' [1955] CLJ 172, 188.

H.L.A Hart, refers to this as the 'rule of recognition': '[i]n the day-to-day life of a legal system its rule of recognition is very seldom expressly formulated', rather 'its existence is shown'... 'in the way in which particular rules are identified'. H.L.A Hart The Concept of Law (OUP, 1961:98). According to the 'rule of recognition' a valid Act of Parliament has:

1. House of Commons approval;
2. House of Lords approval (other than where Parliament Acts apply);
3. Obtained the royal assent;
4. Consistency with subsequent Acts [since courts give effect to most recent legislation if inconsistent with former laws] - subject to the proviso that the Bill of Rights should take priority over all other inconsistent legislation

In the UK, Wade claims that Parliament cannot entrench legislation. In many countries the rule is to be found with their written constitution; but in the UK it exists only in Wade's 'political fact'. This rule of recognition or political fact cannot be amended by Parliament, since it is not law, and hence beyond Parliament's legislative reach.

Can Parliament amend its own Constitution?

If Parliament can pass, repeal or amend any law that it likes, it is able to amend the Constitution. Relevant case law suggests that it is able to do so for particular purposes.

In Jackson v Attorney General [2006] 1 AC 262, The HL had to determine the validity of the Parliament Act 1949, which amended the Parliament Act 1911. The 1949 Act was passed without the consent of the House of Lords in accordance with the procedure stipulated in section 2 1911 Act. The invalidity of the 1949 Act would make the Hunting Act 2004 invalid. The HL held that there is no constitutional principle or principle of statutory interpretation, which prevents the legislature from amending the constitution in accordance with the provisions of a statute which empowers it to do so.

E. The Human Rights Act 1998

The Human Rights Act 1998 (HRA) is currently in force in the UK although the Conservative government have confirmed that they intend to repeal it. It does however, have significance for the supremacy of Parliament.

• s.2 HRA obliges courts to take account of decisions of the European Court on Human Rights (ECtHR), when reviewing cases that deal with Convention rights
• s.3 HRA obliges the courts to interpret legislation in accordance with the rights incorporated within the European Convention on Human Rights 1950 (ECHR)
• s.4 HRA gives the High Court in England or Wales the jurisdiction to issue a declaration in incompatibility, when a provision of statute is found incompatible with a Convention right, although the government is not bound by such a declaration to amend incompatible legislation

The courts have no jurisdiction to declare a statute invalid.

F. European Union Law in the UK and its Implications for Parliamentary Sovereignty

The UK joined the European Community on 1 January 1973 under the terms of the EU Treaty of Accession 1972. The European Communities Act 1972 incorporated the EU Treaty into UK law and gave effect to the implication of membership of the European Community upon Parliamentary Sovereignty. Unlike other international law that has not been expressly incorporated into UK law by an Act of Parliament, the effect of the European Communities Act 1972 (EC Act) was to give precedence to EU law above UK law.

In NV Algemene Trasport-Expedite Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62 and Flaminio Costa v ENEL (1964) Case 6/64 the Court of Justice of the European Union (formerly the European Court of Justice)  held that states have limited their sovereign rights. The legal system that exists within Europe has formed an integral and binding part of the legal systems of Member States involving a permanent transfer or rights and obligations. Any subsequent legislation adopted by a Member State, which is incompatible with the concept of the European Community, could not prevail.

In Blackburn v Attorney General [1971] 2 All ER 1380, the claimant argued that in signing the Treaty of Rome, the government would surrender part of the UK's Parliamentary Sovereignty and be in breach of the law. In the Court of Appeal (CA), Lord Denning held that although in theory Parliament cannot bind its successors and declare an Act of Parliament irreversible, legal theory must give way to practical politics.

Sections 2 and 3 of the European Communities Act 1972, gives legal effect to any rights and obligations created by the EC treaties and provide any remedies provided by the treaty. In HP Bulmer Ltd & Anor v. J. Bollinger SA & Ors [1974] EWCA Civ 14, the Court of Appeal (CA) refused to refer a case to the European Court of Justice (ECJ) on a matter of EC Justice on the grounds that it was not necessary to do so. While the EC Act remains, EU law is supreme; ultimately, sovereignty still lies with Parliament, since the EC Act can be repealed by Parliament. Lord Denning MR confirmed this in Macarthys Ltd v Smith [1979] (Case 129/79).

The consequence is the purposive approach to statutory interpretation. In Pickstone v Freemans plc [1989] AC 66, the CA took a purposive approach to section 1(2)(c)Equal Pay Act 1970, to offer an interpretation of the provision that accorded with Art 119 EC Treaty.

In Lister v Forth Dry Dock & Engineering Co Ltd [1988] UKHL 10, the House of Lords (HL) determined that regulations enacted in 1981 were expressly enacted to give effect to Council Directive 77/187/EEC, which safeguards employee's rights on the transfer of a business. UK courts are under a duty to provide a purposive approach to regulations in a manner, which would accord with a CJEU decision.

In R vSecretary of State for Transport, ex parteFactortame ECJ ([1990] 2 Lloyds Rep 351, [1990] 3 CMLR 1, C-213/89 (Factortame No.1) the High Court requested a preliminary ruling from the ECJ to determine the compatibility of the Merchant Shipping Act 1988 (MSA) with the EC Treaty. The High Court granted an interim order disapplying the relevant provisions of the MSA. The CA reversed this decision, holding that the English courts had no jurisdiction to disapply an Act of Parliament. The presumption was that Act was compatible with EC law until it was declared incompatible.

The House of Lords (HL) referred the case to the ECJ requesting them to clarify whether a national court was under to obligation to provide and effective interlocutory remedy, to protect a party from irredeemable damage. The ECJ found that a rule of a national law, which acts as the sole obstacle to interim relief in a case concerning EC law, must be set aside.  The ECJ also found that the Merchant Shipping Act 1988 contravened EC law.

In Thornburn v Sunderland City Council Gazette 11-Apr-2002, [2001] EWCH Admin 195, [2003] QB 151, A number of retailers appealed convictions for breach of regulations which required food to be sold in metric weights. They claimed that the Weights and Measures Act 1985 and regulations made under the Act impliedly repealed the EC Act 1972, to this extent. The court confirmed that the 1972 Act was a constitutional Act and at common law could only be repealed by express provision. On accession to the EC Treaty, the UK subjected itself to a new and unique legal order, which was supreme above the legal systems of the member states. All specific rights and obligations created by European Law were incorporated into domestic law and now rank supreme to UK law as a result of the 1972 Act. Even when there is clear inconsistency between European Law and domestic law, substantive community rights prevail.

Due to concerns that the Supreme Court was turning into a constitutional court and overruling UK law with the power to override Acts of Parliament by applying EU Law, which was not in agreement with domestic law. Parliament enacted s.18 European Union Act 2011 confirms that directly applicable or directly effective EU law only takes effect in the UK as a result of the existence of the EC Act 1972. The section was enacted to allay concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by the decisions of courts. It did not alter the existing relationships between EU and UK law.

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