WHAT IS PUBLIC LAW ( PART 4 )

By Law Teacher

4.1.1 Parliamentary Sovereignty – Introduction

Welcome to the fourth topic in this module guide – Parliamentary Sovereignty! Parliamentary Sovereignty is a body of rules that govern the legislative competence of Parliament and how courts are to deal with Acts if Parliament.  At the end of this section, you should have a general understanding of how Parliamentary Sovereignty is theorised, what Parliament’s legislative competence is and how Parliamentary Sovereignty is impacted by the Human Rights Act 1998.

This section begins by introducing Parliamentary Sovereignty and outlining the history of its conception. It then explores some sources of Parliamentary Sovereignty, theories and principles. The section then goes on to consider how the Human Rights Act 1998 affects Parliamentary Sovereignty and also how European Law impacts supremacy. The section finally discusses how EU limits Parliamentary supremacy and the effect of the European Communities Act 1972 (EC Act) that gives precedence to EU law above UK law.

Goals for this section:

• To understand the history and the concept of Parliamentary Supremacy.

• To appreciate the application of the different theories that relate to Parliamentary Sovereignty.

Objectives for this section:

• To appreciate how Parliamentary Sovereignty developed throughout history, and how theories by academics and commentators have contributed to its definition and description.

• To evaluate how the Parliamentary Sovereignty is impacted by the Human Rights Act 1998.

• To be able to analyse how EU law affects Parliamentary Sovereignty and to what extent it limits the powers of Parliament.

4.1.2 Parliamentary Sovereignty Lecture

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.

• 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’.

• 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.

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?

C. Theories of Parliamentary Sovereignty

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.

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.

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

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.

Express or Implied Repeal

In 1955, H.W.RWade ‘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

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.

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.

E. Continuing Sovereignty

H.L.A Hart, ‘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

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.

F. 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

Key Case: Ghaidon v Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30, is a leading case on the interpretation of statutes under s.3 HRA. S.3(1) provides that ‘as far as it is possible to do so’, all legislation ‘must be read and given effect in a manner which is compatible with Convention rights’.

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

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.

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 parteFactortameECJ ([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 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, The court confirmed that the 1972 Act was a constitutional Act and at common law could only be repealed by express provision

4.1.3 Parliamentary Sovereignty Lecture – Hands on Examples

The following are some example essay and problems questions, which you may find in an exam regarding the topic on Parliamentary sovereignty. Good answers should show evidence of an understanding of the main principles involved as well as reference to the main case law on the subject. For good marks in essay questions, reference to reading beyond a single textbook is also recommended. In the exam, it is useful to make a note of the main points

Q1 This fictitious scenario involves the introduction of a payment by those previously entitled to free school meals, in order to reduce the cost to the taxpayer. The No Longer Free School Meals Act 2011 is passed that those in receipt of free school meals will now be required to pay a fee based on a percentage of the normal cost of school meals, which is fixed in the Act.  Section 3 of the 2011 Act states that ‘provisions of this Act are to take precedence over Acts passed or to be passed’.  Section 4 states that ‘this Act is not to be amended or repealed unless the consent of Jamie Oliver is obtained’.  The new scheme proves to be very unpopular with protests being held due to its negative impact upon low-income families. The government introduces the Free School Meals (Amendment) Act 2012, which reintroduces free school meals. Jamie Oliver was not consulted prior to doing this.

Debbie and Brian have received a bill for 25% of the regular price of school meals for all of their three children who are entitled to free or reduced cost school meals. Advise Brian and Debbie whether to pay the bill.

Q2 Evaluate, the extent to which the law of the European Union has had an impact on parliamentary sovereigntyin the UK. If the UK is to leave the European Union, what steps will the UK Parliament be required to take in order to remove the application of EU law in the UK?

Q3 Critically access Dicey’s assertion that Parliament can pass, or repeal any law that it wishes and that an Act of Parliament cannot be invalidated by the courts.

• Question 1
• You should start your answer by identifying the parties, the causes of action and the issues in the case.
• Refer to the enrolled bill rule, that the courts have no jurisdiction once a bill has become an Act
• Refer to Edinburgh v Dalkeith Railway v Wauchope [1842] UKHL 710, 8 ER 279; Lee v Bude and Torrington Junction Railway (1871); and British Railways Board v Pickin [1974] AC 765
• The effect of sections 3 and 4 of the 2011 Act, defined express and implied repeal, explain the meaning of ‘entrenchment’; explain the rule that Parliament cannot bind its successors.
• Debbie and Brian could rely upon: Ellen Street Estates Ltd v Minster of Health [1934] 1KB 590; the school could rely upon Harris v Minister of the Interior (1952) 4 SA 769
• You should also explain the prospective formula and its effect on express and implied repeal. If the 2012 Act expressly repeals the 2011 Act, the 2012 Act should prevail.
• Reference can also be made to the Human Rights Act 1998 and European Union Law. At present the European Communities Act 1972 incorporated the Treaty of Accession 1972 into UK law. The impact of this is that EU law is effectively superior to legislation that the Westminster Parliament may wish to enact.

• Question 2
• First it is relevant to mention that the UK have voted to leave the European Union and are currently in negotiations to how this can be accomplished
• Begin with mentioning the Treaty of Accession 1972 and how this required domestic legislation to incorporate it into UK law in the form of the European Communities Act 1972
• Mention cases of 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, in which the ECJ held that states have limited their sovereign right. The consequence of this is that any subsequent legislation passed in a Member State, which is contrary to European Community law cannot prevail.
• This was confirmed in the UK in Blackburn v Attorney General [1971] 2 All ER 1380, where Lord Denning stated that although in legal theory Parliament cannot bind its successors and declare an Act of Parliament irreversible, the practical political situation must override theoretical legal principles.
• Thus, the consequence has been a purposive approach to statutory interpretation. e.g. Pickstone v Freemans plc [1989] AC 66 and Lister v Forth Dry Dock & Engineering Co Ltd [1988] UKHL 10. The purposive approach requires courts to interpret UK legislation in accordance with EU law.
• R vSecretary of State for Transport, ex parteFactortameECJ ([1990] 2 Lloyds Rep 351, [1990] 3 CMLR 1, C-213/89 (Factortame No.1) the ECJ held that a rule of 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 1998 contravened EC law.
• Thornburn v Sunderland City Council Gazette 11-Apr-2002, [2001] EWCH Admin 195, [2003] QB 151, all specific rights and obligations created by European Law were incorporated intodomestic law and now rank supreme to UK law.
• Finally, to overlay concerns about Parliamentary Sovereignty being eroded s.18 European Union Act 2011 confirmed the direction applicable or directly effective EU law takes effect in the UK as a result of the European Communities Act 1972. To prevent EU law from having an effect in the UK, Parliament would need to repeal the 1972 Act.

• Question 3
• Although Parliament can enact any law, politically this may not be possible. For example, it is unlikely to be politically acceptable to pass a law which prevents Billionaires from voting.
• There are some practical limitations on Parliaments legislative competence, e.g. you may wish to refer to British Coal Corporation v R [1935] AC 500, and Madzimbanuto v Lardner-Burke [1969] 1 AC 645
• You can also distinguish between the traditional formulation of parliamentary sovereignty in Scotland and England, referring to McCormick v Lord Advocate (1953) SC 396, stating that practically any change in the relationship between England and Scotland would require significant political negotiations to make an alteration to this relationship.