Solicitors Qualifying Examination

Parliamentary Sovereignty | Public Law – SQE1 & SQE2 Exam

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Parliamentary Sovereignty

‘Natural’ or ‘Divine’ law – Pre-1688
• Judges in 17C suggested that there were natural or divine laws – moral
principles – against which no legislation could act
o Day v Savadge – Hobart CJ – an Act of Parliament that made a man
judge in his own case would be void
• Note: this put the supreme law-making power in the hands of the courts
• However, Diceyan theory (Introduction to the Study of the Law of the
Constitution) did away with any limits on the legislative powers of
parliament
• 3 basic rules:
1. Parliament is the supreme law-making body
2. No Parliament may be bound by a predecessor or may bind a
successor = power to unmake any law
3. No person or body may question the validity of an enactment of
Parliament
Parliament is the Supreme Law-making Body
• Absence of legal limitations, although there are political limits
• Parliament can pass laws to alter or regulate its own terms of office
o Septennial Act 1715
o Fixed-term Parliaments Act 2011
• Inconsistency between pieces of legislation (e.g. Irish Church Act 1869 +
Act of Union with Ireland 1800) not for courts to question (Ex pare Canon
Selwyn)
• Lord Hoffmann – R v Secretary of State for the Home Department, ex p.
Simms [2000] ~ ‘parliament can, if it chooses, legislate contrary to
fundamental principles of human rights’
o … so long as it does so in absolutely explicit wording, such that the
courts’ interpretation may not, in spite of its best efforts as
necessitated by HRA, be in line with ECHR
• Cheney v Conn – parliament can create statues that conflict with public
international law (e.g. against Geneva Convention)
• Mortensen v Peters – Parliament can legislate for territory beyond the
jurisdiction of the UK
o Here, terms of Act apply beyond the 3-mile territorial limit
recognized by international law
• Parliament can pass retrospective as well as prospective laws
o Burmah Oil Co v Lord Advocate – War Damage Act 1965
retrospectively nullified Burmah Oil Co decision
o Job-Seekers (Back to Work Schemes) Act 2013
© Liam Porritt 2020 2
No Parliament may be bound by a predecessor or bind a successor
• Express repeal through legislation – e.g. Sex Discrimination Act 1975,
Race Relations Act 1976 and Disability Discrimination Act 1995 all
repealed and replaced by Equality Act 2010
• Implied repeal – new Acts partially or wholly inconsistent with previous
Acts – previous Act repealed to extent of inconsistency
o Vauxhall Estates v Liverpool Corporation
§ In spite of 1919 Acquisition of Land Act stating that it
would prevail over any others to be passed, the terms of the
1925 Housing Act were applied – otherwise, the 1919 Act
would have become entrenched
• Modern view = implied repeal does not apply to certain ‘constitutional’
statutes, such as HRA 1998 and ECA 1972
Parliament limiting its own power
Parliament could:
1. Bind itself as to the content of future legislation – substantive limitation
2. Prescribe a manner in which legislation is to be passed/repealed –
binding of manner
3. Impose restrictions on the form of legislation in a certain area (e.g.
needing express words) – binding of form
Substantive binding
The Union Legislation
• Acts of Union = Acts of English, Scottish and Irish Parliaments creating UK
Parliament, thus limited by founding constitutional documents
o Article I – ‘The two kingdoms of England and Scotland shall […] for
ever after be united into One Kingdom by the name of Great
Britain’ – clear entrenching provision
o Many other religious provisions, including that the form of
Protestantism then used in the Church of Scotland ‘shall remain
and continue unalterable’
§ However, no suggestion in Treaty of how entrenched
provisions are to be safeguarded against future statutory
infringement
§ Many entrenched provisions (e.g. religious) no longer in
force
• McCormick v Lord Advocate – Lord Cooper: parliament of Great Britain ≠
inheriting all the peculiar characteristics of the English parliament
(including the unlimited sovereignty of parliament), and thus possible
that certain entrenched provisions, e.g. Church of Scotland + Scottish legal
system were altered by Parliamentary legislation
© Liam Porritt 2020 3
Grants of Independence
• Colonies often became Dominions following independence (e.g. Australia,
Canada) + their constitutions were established by UK acts of Parliament
• Constitutional convention that no new UK Act affecting a Dominion would
be passed without Dominion’s consent
• Confirmed in Statute of Westminster 1931 s 4 – legislation substantively
limiting legislation for former colonies
• British Coal Corporation v The King – Lord Sankey: Parliament could
repeal s 4 SoW, as a matter of theory but not reality
• Blackburn v Attorney General – Lord Denning: taking away independence,
while a theoretical possibility, is politically impossible
• Manuel v Attorney General [1983] – Megarry VC: orthodox view of
sovereignty + distinction between legal validity + practical enforceability,
the former being predominant as far as Parliamentary sovereignty is
concerned
• While somewhat academic, this argument does shed light on the status of
Parliamentary sovereignty in relation to the devolved nations of the UK.
Binding as to manner and form of future legislation
• Diceyan view: parliament could pass statute requiring special procedure
for amendment / repeal, but this requirement would not successively
bind parliaments
• However, consider:
o HRA 1998 – below
o European Communities Act 1972 – below
o European Union Act 2011
§ National referendum required before further amendments
to founding Treaties of EU = ‘referendum lock’ that would
have extended beyond the life of that Parliament through
manner and form requirement
© Liam Porritt 2020 4
No person/body may question the validity of an enactment of Parliament
Diceyan view: Acts not reviewable either as to their…
• Procedural passing
o Edinburgh and Dalkeith Railway v Wauchope – Wauchope claimed
rights infringed as had not been notified of passing of an act as he
should have been ~ once a bill becomes an act, it is for the courts
to enforce
o British Railways Board v Pickin – Parliament, it was alleged, had
been misled by the BRB, but HELD: not for courts to question
parliamentary procedure, refusing to look into the manner in
which a statute may have been passed = enrolled bill rule
• Substance
Jackson – challenge to Diceyan parliamentary supremacy?
R (Jackson) v Attorney General [2005]
• Validity of Hunting Act 2004, passed without the consent of HoL using
accelerated procedure created by Parliament Acts 1911 + 1949
• PA 1911 – HoL has power to delay passing by 2 years after second
reading (3 sessions), but after this, legislation may pass without HoL
consent
• PA 1949 – HoL has power to delay passing by 1 year ~ with this
legislation brought in using PA 1911 (passing after three rejections in
HoL)
Maintenance of Parliamentary Supremacy
• Jackson alleges that:
o Legislation made under PA 1911 is delegated or subordinate
§ Rejected by court as clear wording in PA 1911 to the
contrary
o PA 1949 is invalid as passed using PA 1911, the powers of which
may not be modified by HoC without express words authorising
such modification
§ There is nothing in the 1911 Act to suggest that future
amendment of it cannot be made using the 1911 Act itself
• Lord Pearce, Bribery Commissioner v Ranasinghe:
constitution can be altered by legislature if the
terms of the regulating instrument are complied
with, and this ‘may include the change or
abolition of those very provisions’
§ Lord Bingham (para 32): even the exclusion of the using of
PA 1911/49 to extend the period of Parliament beyond 5
years is not unamendable – it would be possible for
Parliament to use PA 1949 to amend PA 1911 to remove
© Liam Porritt 2020 5
this exclusion, and then to extend the period without the
consent of the HoL
• This was disagreed with by 5 of the Lords (see
below)
o Hunting Act 2004 passed under PA 1949 is thus also invalid
• In the court’s ratio, it appears that Parliamentary supremacy remains and
that parliament retains the power to make, amend and unmake any law.
Questioning Parliamentary Supremacy
• The court’s unanimous decision that it had jurisdiction to ascertain
whether the Hunting Act 2004 was an Act of Parliament may itself appear
contrary to the enrolled bill rule
• This case (and the ability of the courts to decide on the validity of an Act)
is distinguished from Pickin by Lord Bingham on two grounds:
o Pickin was a question of parliamentary procedure as concerns
their ability not to be misled; this is a case of whether an Act can be
passed through only one house
o A question of law is here raised (indeed, one of statutory
interpretation as to the PA 1911) and this cannot be solved by
parliament, so for the maintenance of the rule of law, it must be
answered by someone: the courts
• Alison Young: if HoL had established it was not an Act of Parliament as it
was invalid, this would not amount to overriding or setting aside
legislation, merely concluding that the Act never was legislation
o This seems contrary to Pickin though and principle that the courts
do not challenge parliamentary procedure – they can be
distinguished but the line here seems blurred
• Attorney General asserts that the 1949 Act may be used to abolish the
HoL – Lord Steyn: this may be correct in a strictly legal sense, but it would
‘test the relative merits of strict legalism and constitutional legal principle
in the courts at the most fundamental level’
• Steyn: in cases of abolition of JR, the ordinary role of the courts or the
HoL, the SC may have to consider ‘whether this is a constitutional
fundamental which even a sovereign Parliament […] cannot abolish’.
• Steyn: crucially, the origins of parliamentary supremacy are in
common law – the courts created the principle and so it does not seem
unthinkable that they might qualify the rule on a different hypothesis of
constitutionalism.
• Lord Hope: ‘the rule of law enforced by the courts is the ultimate
controlling factor on which our constitution is based’ and thus the courts
would not uphold legislation threatening the RoL.
‘Hunting Sovereignty: Jackson v Attorney General’, Alison Young, 2006
• Continuing parliamentary sovereignty = each parliament is sovereign
• Self-embracing parliamentary sovereignty = parliament as a whole over
time is sovereign
© Liam Porritt 2020 6
• Self-embracing – Lord Steyn + Baroness Hale = Parliaments bound by s
2(1) of PA 1911 = unable to extend life of parliament without consent of
HoL ~ future parliaments bound by this
• Continuing = modification of the way in which valid legislation can be
enacted (to exclude HoL) = legal fact + political fact (accepted by both)
and a change to the way Acts are enacted (i.e. to parliamentary
procedure), but not to Parliamentary supremacy
Devolution
• Scotland Act 1998 – right to legislate on number of issues (and if an Act
possibly infringes bounds of power in s 29, s33 permits SC to rule if
permissible)
o S 28(7) – SA does not affect the power of UK Parliament to make
law for Scotland
§ Given SA 1998 intention of maximising autonomy of Scots
electorate, court could construe this as meaning that courts
must apply UK legislation affecting devolved matters only
where statute states that SA is being amended (Loveland,
333)
§ Thus, on devolved matters, devolved legislation will be
supreme over UK legislation, unless the UK legislation
amends the SA to give supremacy to UK legislation in that
area
o Scotland Act 2016, s 2 = codification of Sewel Convention ~ UK
Parliament will not normally legislate on devolved matters
without Scottish parliamentary consent
• AXA General Insurance Ltd v Lord Advocate
o Acts of Scottish Parliament = primary legislation, thus not subject
to JR
o Emphasised, as in Jackson, that the courts would not uphold
legislation threatening the RoL.
© Liam Porritt 2020 7
HRA 1998
• HRA 1998 – can be expressly repealed by legislation
• Court can only make non-binding declaration of incompatibility with
European Convention on Human Rights, under HRA 1998, s4.
o However, obligations to make amendment equivalent to a
convention = court effectively has power to overrule Act if not
ECHR compliant
o Also, Act effectively disapplied as if applied, person has recourse to
ECHR vs government
• Obligation of courts to interpret legislation in line with ECHR = s3 HRA
1998
o R v A (Complainant’s Sexual History)
§ Lord Steyn: very liberal approach to interpretation, ‘reading
down’ words into legislation in order to make it compatible
with ECHR, even if contrary to intentions of Parliament = on
the bounds of becoming legislator above Parliament ≠
Supremacy!
§ Lord Hope: expressed concerns with overly liberal
interpretation that crossed the bounds of PS.
§ Remember, however, that this s3 power is granted by
Parliament and could be taken away!
• A (FC) and Others v Secretary of State for the Home Department [2004]
o Requirements under ECHR infringed by Anti-terrorism, Crime and
Security Act 2001, s 23 ~ permitting home secretary to imprison
any non-national reasonably suspected of being a terrorist went
beyond the ‘extent strictly required by the exigencies of the crisis’
o Declaration of incompatibility in accordance with s 4 HRA 1998 =
implied repeal giving supremacy to later Acts (i.e. 2001 Act) not
enforced in cases involving HRA 1998 ~ implied repeal does not
apply to HRA 1998
© Liam Porritt 2020 8
EU Law
• R (Miller) v Secretary of State for Exiting the European Union [2017] – Lord
Neuberger: Parliament and not the Executive is the sovereign body
capable of affecting major change to UK constitutional arrangements
• European Communities Act 1972 – incorporated Treaty of Rome 1957
into UK law: ‘equal in force to any Statute’ (Bulmer v Bollinger [1974] –
Denning)
o S 2(1) – DE to Community law in UK
o S 2(4) – UK Acts construed and have effect subject to directly
applicable Community law
Interpretation of Statute
• Initially, approach of judiciary is in line with PS – implied repeal (of UK or
EU law) by subsequent Acts (Felixstowe Dock and Railway Co v British
Transport Docks Board [1976])
• Subsequently, approach = give effect to statute in accordance with EU law
as far as possible, unless express contrary intention expressed
o Macarthys Ltd v Smith – Denning MR: s 2(4) = abolition of implied
repeal as far as Community law is concerned
o Garland v British Rail Engineering Ltd – Lord Diplock: wide
purposive approach to statutory interpretation, but only in so far
as the words can bear the EU meaning (Treaties)
o Pickstone v Freeman – extended Garland to secondary legislation
Incompatibility of statute with EU law
R v Secretary of State for Transport, ex p. Factortame Ltd and Others (No. 2)
• UK incorporated company with fishing vessels
• Merchant Shipping Act 1988 – 75% of British owners required for them
to be registered in UK
• Factortame had majority of Spanish owners
• Contrary to EU law
• HoL ~ agreed with CoA and set aside interim relief period for Factortame
pending ECJ ruling (Act is upheld as UK law)
o ECJ: if national law alone precludes granting of interim relief until
ECJ decision, rule should be set aside until ECJ decision (= courts
have jurisdiction to suspend Act until ECJ decision to protect
Community-law rights)
o Not an infringement of Parliamentary sovereignty as Parliament
had itself voluntarily limited its sovereignty through the ECA 1972,
at which time primacy of EU law was well established (Costa v
ENEL)
© Liam Porritt 2020 9
R v Secretary of State for Employment, ex p. Equal Opportunities Commission
[1995]
• HoL disapplied statute without reference to ECJ
• Five-year period before part-time workers could claim redundancy /
unfair dismissal compensation = discriminatory against women (indirect,
contrary to art 141 TEU)
• Tribunals applied HoL decision even while Act remained in force,
applying this to both EU and UK citizens
Thoburn v Sunderland City Council [2002]
• Laws LJ: Constitutional statutes (which condition the legal
relationship between citizen and state + alter fundamental
constitutional rights) = require legislature’s actual intention by
‘unambiguous words on the face of the later statute’
o EU law can therefore only be overridden by express repeal
o Lord Hoffmann – R v Secretary of State for the Home Department, ex
p. Simms [2000] ~ ‘parliament can, if it chooses, legislate contrary
to fundamental principles of human rights’
§ … so long as it does so in absolutely explicit wording, such
that the courts’ interpretation may not, in spite of its best
efforts as necessitated by HRA, be in line with ECHR
• This permits:
o The benefits of a written constitution – fundamental rights
accorded special respect
o Sovereignty of legislature + flexibility of uncodified constitution
remain – all statutes can be expressly repealed by Parliament
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014]
• Nuances Laws LJ’s view: comparative importance of key constitutional
principles and statutes – not merely that there are ‘constitutional’ vs
‘ordinary’ statutes, but a hierarchy of ‘constitutional’ statutes ~ SC rejects
EU law trumping Article 9 of Bill of Rights 1689 (freedom of speech
and proceedings in parliament ought not to be ‘impeached’ in any court of
law)
• Perhaps underplays
NB: In all these cases, notion of parliamentary supremacy broadly protected,
with any questions surrounding PS derived from the (reversible) parliamentary
enactment of statutes that may be said to hold greater status than others, thus
overriding implied repeal and giving the courts the power to assert this against
subsequent Acts, but leaving open the possibility of express repeal.
This is less radical than views expressed in Jackson, which went as far as stating
that the courts would perhaps step in should the legislature enact legislation that
threatened the RoL.

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