Commentary on the Changing Constitution: The Sovereignty of Parliament – Form or Substance? What is Parliamentary Sovereignty?

Definition:

It is regarded as a fundamental constitutional rule that there are no legal limits upon Westminster’s legislative powers, and that the courts may not question or review the validity of legislation.

The authority of Parliament includes the power to make constitutional changes by ordinary process of legislation, unlike the specific amendment procedures that apply to most written constitutions.

However, there is debate that this stress on Parliamentary Sovereignty in the modern context is more a matter of form than substance.

Limitations to the theory of Parliamentary Sovereignty:

1. Conflicts with the Rule of Law: How does Parliamentary Sovereignty reconcile with Rule of Law?

2. Membership of the EU, and Westminster’s authority is limited by Community Law (European Community Act). The courts must disapply UK legislation if it conflicts with Community Law.

3. Devolution and political practice– The Scottish Parliament in particular, which has its own law-making powers, where as a matter of political practice it affects the authority to legislate on Scotland.

4. Human Rights Act: Technically, preserves Parliamentary Sovereignty, but courts are allowed to declare legislation incompatible if in violation of ECHR

a. Interpretative powers, the political reality of a declaration of incompatibility, does it mean Westminster’s law-making capability been limited?

5. Does the democratic process work so perfectly as to justify the absence of any limit upon the authority of Parliament to legislate?

a. Possibility of abuse of power? Are there limits where the courts will not apply extreme legislation?

The two sovereignties:

1. There are two pillars of a legal system, Law-making and Interpreting and Applying the Law.

2. Sir Stephen Sedley: a bipolar sovereignty of the Crown in Parliament and Crown in its courts, to each of which the Crown’s ministers are answerable, politically and legally respectively.

a. What are the boundaries of the legislature and the courts?b. Will there be rivalry and competition, rather than complementary

partnership?

3. Hierarchy of norms: Acts of Parliament, secondary legislation, common law. Statute is the ‘highest form of law that is known in this country.’ Ungoed-Thomas J.

a. But this statement has been overridden by certain developments, namely European Community law, international human rights.

b. Also note that it’s the courts themselves that ascribe meaning and the authoritative ruling of the statute comes from a judicial decision, not a legislative one. (Brings up the point of interpretation)

Parliamentary Sovereignty as a legal doctrine:

1. Parliamentary Sovereignty as a ‘given’. A fundamental. Acknowledged by the Earl of Shaftesbury in 1689. Diceyan analysis also has great influence.

2. Sovereign Parliament is not bound by the Act of its predecessors: Doctrine of Implied Repeal. The later act repeals the earlier act, where there is an inconsistency with the provisions in the earlier Act.

Possible sources of Parliamentary Sovereignty:

1. Big Bang creation: Parliamentary Sovereignty as a Fundamental rule. See above.2. Decisions in Common Law giving Parliament its sovereignty. Courts are applying the

Acts and have said they are bound to apply them3. Historical Process: mutual understanding and comity. The courts and other political

actors give Sovereignty to Parliament.a. However, who is to say that this constitutional evolution has stopped here?

How about THE CONSTITUTION as a source?

1. UK has no written constitution, but where it is unwritten, ‘the distribution of public power consists ultimately in a dynamic settlement, acceptable to the people, between the different arms of government. (John Laws LJ)’

2. Historical Process, Dynamic Historical Experience, Evolutionary.

More importantly, Democratic Basis for Parliamentary Sovereignty

1. Parliament derives its sovereignty from the democratic nature of its political processes.

Parliamentary Sovereignty excludes Judicial Review

1. Do judges only apply the statute, or is it possible that they may on their own initiative begin to review legislation by Parliament?

a. What if it legislation breaches fundamental human rights?b. In the years before HRA98, Lord Woolf amongst others suggested that both

Parliament and the Court are subject to Rule of Law, and if Parliament enacts something unthinkable the courts may not necessarily uphold legislation.

2. Parliament has the right to breach fundamental human rights only if they make it clear and explicit that they wish to do so.

a. R v Lord Chancellor ex p Witham: b. R v Secretary of State (Home Dept) ex p Simms: ‘constraints on the exercise

by Parliament of this power are ‘ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.’

Only Acts of Parliament are Supreme

1. All the courts have to do to see if an act of Parliament is legal is to ‘look to the Parliament roll.’

2. To be valid, legislation must have been passed in the manner and form required by the constitution.

Judicial Interpretation and Application: viz the Rule of Law

1. Dicey: ‘Parliament is supreme legislator, but from the moment Parliament has uttered its will as law giver, that law will become subject to the interpretation put upon it by the judges.’

2. When law is passed, the courts do not accept that the executive’s statutory powers are unfettered/unlimited. The judges will interpret the law accordingly, in response to social changes and to protect constitutional values. Prevents constitutional changes from being made in general/not express words (very dangerous)

3. There are default presumptions that the court will uphold. Where wording in ambiguous the courts will uphold this presumption. However, the courts have also accepted that Parliament can if it chooses legislate contrary to fundamental principles of human rights (if done so in express wording)

a. Acts of Parliament can be altered by statutory interpretation, HRA98 ‘as far as it is possible to do so.’

Parliament may by legislation make changes in constitutional law. No special procedure is required. But Does Parliament’s Power extend to legislating on all fundamental constitutional rules?

1. Parliament may not bind its successors: The doctrine of implied repeal. Maugham LJ, Ellen Sreet Estates Ltd v. Minister of Health,

a. ‘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.’ However, consider Thoburn v Sunderland City Council. Constitutional Act and immunity from implied repeal.

2. Parliament may not change the rule that courts recognise Acts of Parliament as law. a. ??

The effect of the Parliament Acts 1911-1949Challenge of R. (Jackson) v Attorney-General, to the Hunting Act 2004. In judicial review proceedings, the claimants asserted that the Hunting Act was not law because its validity depended on the Parliament Act 1949, and that Act was itself invalid.

If the way is open for major constitutional changes to be made by use of a Parliamentary Act procedure, Commons and Government might force through radical reform of the House of Lords itself, based solely on the wishes of Commons itself.

Obiter: Some judges have deep reservations as to the matter of the majority in the Commons to legislate in ways that adversely affect matters of constitutional principle.

1. Lord Steyn: ‘we do not have in the UK an uncontrolled constitution as the AG implausibly submits.’ …’the supremacy of parliament, pure and absolute as it was, can now be seen to be out of place in the modern UK, While that supremacy is still the general principle of the constitution, it is a construct of the common law.’ It is not ‘unthinkable that circumstances should arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.’

2. Lord Hope: ‘…Parliamentary Sovereignty is no longer, if it ever was, absolute. The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.’

3. Lady Hale, considering the limitations on PS imposed by the ECA72 and HRA98, ‘it is possible that other qualifications may emerge in due course, in general, however, the constraints upon what Parliament can do are political and diplomatic rather than constitutional.’

Statements of this kind question the absolutist vision of Dicey. However cannot be assumed that judges are similarly waiting to impose judicial supremacism, but also indicate a willingness not to merely address the content of PS, but also its link with the principles of democracy

Parliamentary Sovereignty and the European UnionThe conduct of foreign affairs may thus lead to a situation in which Parliament legislates under the constraint that otherwise the UK will be in breach of its treaty obligations.

European Union and the UK in particular:

1. European Union, created in 1993, under the Mastrict Treaty2. European Economic Community, created in 1957, Treaty of Rome, the

precursor of the current Community.3. UK acceded to EEC in 1972, Treaty of Brussels, and thereafter European

Community Act 1972.

What are the distinctive roles of the European Community:

1. Broad executive, legislative and fiscal powers are vested in the organs of the Community

2. ECJ and CFI exercises judicial powers3. Regulations made by the Council of Ministers are directly applicable.4. Treaty provisions and Community Measures may have direct effect in

member statesa. ECJ 1963 says, ‘the Community constitutes a new legal order of intl

law, for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals

5. From the perspective of the ECJ, it is essential that the main rules of Community Law should have direct effect in the legal systems of the member states.

a. Community law cannot be overridden by domestic legal provisions without being deprived of its character as community law and without the legal basis of the community being called into question. (Costa v Enel)

b. Community law thus creates obligations upon member states and also individual rights enforceable in national courts

c. This clearly is inconsistent with the theory of parliamentary sovereignty.

d. As a side point, the conflict between ECJ’s emphasis on supremacy of Community Law, and its interaction between constitutional laws based on national frontiers can be seen in Internationale Handelsgesellschaft case 11/70, and subsequent Wunsche Handelsgesellschaft case [1987]. The Germans were reluctant to give effect to Community Supremacy because they thought it did not do well enough to protect the fundamental rights enshrined in the German Constitution

Application to the UK:

1. The UK had problems because legal effect had to be given not only to existing but also to future rules of Community law. What happened to the idea of not binding future parliaments?

a. Could a guarantee be given or an undertaking entrenched that Parliament would in future neither legislate to leave the Community nor legislate in a manner which conflicted with Community Law?

2. Uncertainty over the issue: what the position would be if an Act passed after 1972 that was incompatible with the rule of Community law?

a. Impossible to undertake in 1972 that no such conflict would occur.b. Government accepted that a later act might prevail over ECA to the

extent of the conflictc. Judges have preferred to use interpretation to resolve conflict.

Denning MR, ‘Parliament has decreed that the treaty is henceforth part of our law. It is equal in force to any statute.’ Is Community law however of Greater Force than a statute by prevailing over subsequent Acts?

3. R v.Secretary of State for Transport, ex p. Factortame:a. Question was whether Interim relief could be granted for fishermen

who could not fish while matter as to whether Merchant Shipping Act 1988 infringed their community rights was referred to the ECJ

b. House of Lords referred a question to ECJ as to whether there ‘was an overriding principle of Community Law’ that required national courts to secure effective interim protection of Community Rights. Court of Justice replied affirmatively.

i. ‘Directly applicable rules of Community law must be fully and uniformly applied in all the member states from the date of

their entry into force, in accordance with the principle of the precedence of Community law.’ This principle rendered ‘automatically inapplicable any conflict provision of national law.’

c. Lord Bridge’s statement, ‘Whatever limitation of its sovereignty, Parliament accepted when it enacted the European Communities Act was entirely voluntary. As long as UK remains in the EC, the laws made by the supreme Parliament must if necessary give way to the greater supremacy of Community law

i. In simple terms, EU supremacy has been around before UK joined. When UK joined they knew from the history of the EU that they had to listen to their law, and UK knew what they were getting themselves into.’

d. Three other examples of this: i. ECJ, Marshall v Southampton and South West Hampshire

Health Authority. Sex Discrim Act was breaching Equal Treatment Directive because victims could not claim adequate reparation

ii. HL themselves declared that conditions imposed by Employment (Consolidation) Act 1978 on part-time worker protection was discriminatory, because they were incompatible with female worker Community Law

iii. Factortame 2, HoL held that British Govt was liable to compensate the fishing interests because liability arose in part in 1988 when European Commission in Brussels had expressly told them the proposed Act infringed the right of establishment under Community law, but had gone ahead anyway.

4. In general, British Courts must not apply national legislation, whenever it is enacted, if to do so would conflict with Community law. A Constitutional Revolution, if you will.

a. Whatever rationalisation of the change, British membership has caused a significant area of legislative power to pass to the European authorities.

b. British courts, must review Acts of Parliament consistently with EC law, must decide if Act is applied/disapplied, and may even award compensation for improper exercise of legislative authority.

Change in the operation of PS is not necessarily permanent, however. UK can still exercise ultimate sovereign authority by repealing the 1972 Act. Short of this extreme, it is unlikely that Westminster would expressly mandate the courts to disregard a specific Community obligation.

Parliamentary Sovereignty and DevolutionAs a matter of strict law: Westminster retains full capacity to amend or repeal the Scotland Act and may do so at any time, without any prior procedure such as a referendum being necessary

Westminster retains full capacity to legislate in Scotland’s affairs, whether or not they are within Scotland’s legislative competence, but as a matter of political practice Westminster does not.

Within its devolved powers, the SP may amend or repeal existing acts of the Westminster Parliament and also future acts enacted that deal with matters within Edinburgh’s competence, unless those Acts show a clear intention to take a particular matter outside the competence by amending the 1998 so as to achieve this.

Good to note there is huge support for the Scottish Parliament.

Parliamentary Sovereignty and Human Rights Act 1998Although the European Court of Human Rights held that a state that is party to the ECHR may decide how the Convention rights should be protected within its jurisdiction, the UK’s unique position of having no formal means of protecting human rights while not having incorporated the ECHR in national law became exposed to criticism.

1. Interpretative dutya. A new strong interpretative duty is applied to all legislation, whether

primary or secondary, regardless of date of the legislation; this duty must be observed by all parties who apply legislation, including courts and tribunals

i. S3(1) HRA98, So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention Rights.

ii. S3(2) HRA98, For secondary legislation that is incompatible, may be quashed or disapplied

2. Declaration of Incompatibilityi. S4 In case of primary legislation, declaration of incompatibility

to be issued1. Fast track remedial procedure, by choice of a minister2. Declaration of compatibility of Act passing through

Parliamentii. Public authorities bound as well (definition of public authority

is a big point of contention to be covered in later readings.)3. What is the effect of interpretative duty and Declaration of Incompatibility

combined?

a. The act goes a very long way to enabling there to be judicial review of legislation in all but name.

b. Must rewrite ‘all that a court may do with an Act of Parliament is to apply it.’ But now interpretative duty requires it to go further.

c. While therefore the Act does not entrust the courts with the power to strike down an Act of Parliament, the courts are empowered to deliver a wound to Parliament’s handiwork that will often prove mortal, even though life support for the legislation must be switched off by the government or by Parliament, not by Courts.’ Bradley, Changing Constitution

d. Lord Steyn says ‘it is crystal clear that the carefully and subtly drafted Human Rights Act preserves the principle of Parliamentary Sovereignty.’ But in doing so the Act has made a significant alteration to the legal status of legislation that affects Convention Rights. Parliamentary Sovereignty has been reasserted and continues as a matter of form, but the substance of legislative power which the doctrine implies has been subject to an important measure of judicial control.

ConclusionsParliament Act brings up the idea of constitutional legislation that raises some serious questions for the courts to resolve that cannot be answered by Diceyan Orthodoxy (extend life of parliament, abolish House of Lords, etc.)

European Communities Act: Is an act of parliament compliant with Community Law? If not, disapply it?

HRA98: Judicial supremacy v Parliamentary Sovereignty

Scotland: Devolved powers that has potential over time to acquire political authority to rival Westminster

Source/Justification of Legislative Supremacy, linked to democracy? Ewing says PS Is ‘a constitutional principle acquired before the advent of democracy yet one which might be said to be the most democratic of all constitutional principles.’ It is a device that best gives effect to the principle of popular sovereignty, whereby peoples in a self governing community are empowered to make rules.

1. However, does this democratic grounding of PS justify the removal of all restraints? And what checks and balances should be kept on electoral power?