PARLIAMENTARY SOVEREIGNTY Introduction The doctrine of Parliamentary Sovereignty is the dominant characteristic of the British Constitution. The sovereignty/supremacy.

PARLIAMENTARY PARLIAMENTARY SOVEREIGNTYSOVEREIGNTY

Introduction

The doctrine of Parliamentary Sovereignty is the dominant characteristic of the British Constitution. The sovereignty/supremacy of Parliament stems from the 'Glorious Revolution' of 1688 when King James II fled the country, after a protracted struggle btn the King & Parliament for legal & political supremacy, & effectively left the Lords & Commons to find a new monarch. 'Parliament' offered the Crown to Prince William of Orange on terms which primarily asserted Parliament's legislative authority over the Crown, set out by the Declaration of Right 1688. These terms were accepted by Prince William who thus became the next King. Parliament had seized an opportunity to make itself the most powerful authority. After Parliament had been able to offer the Crown to a potential King on its own terms, how could its supremacy be questioned?

PARLIAMENTARY PARLIAMENTARY SOVEREIGNTY SOVEREIGNTY

Meaning of Parliamentary Sovereignty:

* According to Prof. AV Dicey in his book, “An Introduction to the Study of the Constitution”, which was published in 1885, defined the term as the right of Parliament to make an unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.


Meaning of Parliamentary Sovereignty: (Continuation)

* From the above definition of PS given by Dicey, the principle is that it can be viewed from two aspects i.e., the positive aspects which means not only that Parliament may legislate upon any topic, but also that any parliamentary entactment must be obeyed by the courts. The other aspect is the negative aspect, which means, “There is no person or body of persons who can, under the English Constitution, make rules which override or derogate from an Act of Parliament...” Dicey demonstrated the point by reference to the of legislative power able to compete with Parliament.


The three basic rules to deduce from Dicey's traditional definition of PS:

(a) Parliament is the supreme law making body & may enact laws on any subject matter;

(b) No Parliament may be bound by a predecessor or bind a successor; &

(c) No person or body including a court of law may question the validity of Parliament's enactment's.


How should the doctrine of PS be understood?

* According to this principle which Dicey considered to be the very keystone of the British Constitution, any Bill passed by both Houses of Parliament with the Royal Assent would be recognised by the cts as an Act of Parliament.

* From the above statement, Parliament here should not be equated to the HOC. It is important to remember that Parliament does not refer to individually to either HOC or HOL. Instead it refers to the Constitutional phenomenon known as the 'Queen in Parliament' i.e., Bill requiring the consent of the Queen in the HOC & the HOL before it may become an Act of Parliament. (This in practical term gave Parliament great power e.g. No legal limitations on what could be included in an Act of Parliament i.e., it could alter the law retrospectively- Burmah Oil Co Ltd v Lord Advocate)


How should the doctrine of PS be understood? (Continuation)

* Unlike in the USA, where cts could strike down measures of legislature as unconstitutional (see the case of Murbury v Madison (1803), where the US Supreme Court held that it had jurisdiction to decide whether an Act of Congress was or was not in conformity with the US constitution). But in the UK, cts have traditionally recognised the Acts of Parliament are not legally reviewable.


What is the importance of PS?

* The importance is derived from the fact that the Cts recognise no limit to Parliament's legislative power & will not question the validity of an Act of Parliament even where the Act is in conflict with a rule of common law. (See the case of Pickin v British Railway Board [1974] AC 765-where the Ct held once an Act is passed, cts must accept it. The HOL was not prepared to review the conduct of the internal proceedings in Parliament.

* If two statutory provisions are in conflict, then the one which was enacted most recently in time will prevail & therefore any attempt to protect a statutory provision from future repeal will generally be ineffectual. (See the cases of Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 & Ellen Street Estates v Minister of Health [1934] 1 KB 590.


What is the nature of PS?

* 'Sovereignty' here refers to Parliament's legislative powers. In this regard the UK Parliament is regarded as the highest law making body of the land.

* Not every rule making power exercised by Parliament results in an 'Act of Parliament' which alone can alter the law & is thus sovereign. (See the concept of negative of the doctrine). For example, resolution of either Houses of Parliament or decisions of the HOC do not have the force of law & cannot alter the law of the land & thereby affect individual rights & duties as stated in the case of Stockdale v Hansard. Treaties also entered into under the royal prerogative cannot alter the law of the land (see the case of Cheney v Conn [1968] 1 WLR 242).


How does the doctrine of PS operate from Dicey's point of view? (Traditional view)

(a)Parliament is the supreme law making body & may enact any laws on any subject matter

According to Dicey, the rule means that there is no limit on the subject matter on which Parliament may legislate. In other words, Parliament is legally competent to legislate on any subject matter. For example, Parliament may legislate to to alter its term of office & this can clearly be seen in 1716, whereby the life of Parliament was limited to three years under the Act of 1694. But fearing the effects of an election, the govt introduced, & Parliament passed, the Septennial Act 1715, extending the life of Parliament to seven years. Parliament may also legislate to alter its own powers, as with



(a) Parliament is the supreme law making body & may enact laws on any subject matter- (Continuation)

Parliament Acts of 1911 & 1949, where the powers of the HOL in respect to legislation were curtailed.

Parliament may also legislate with retrospective effect, as with the War Damages Act 1965. The War Damages Act effectively overruled the decision of the HOL in Burmah Oil v Lord Advocate. The HOL had held that compensation was payable by the Crown for the destruction of property caused by the exercise of the prerogative power in relation to war.



(a) Parliament is the supreme law making body & may enact laws on any subject matter- (Continuation)

Limitations to the first basic rule from the critics point of view:

* The effect of the Parliament Acts 1911 & 1949 i.e., a Bill may become an Act of Parliament without the Lords assent. This Acts do not apply to an Act to extend the life of Parliament.* UK being a member of the Council of Europe & now with HRA 1998 in place, UK Parliament is not expected to come up with retrospective legislation. UK also believes in the spirit of the ROL.



(b) No Parliament may be bound by a predecessor or bind a successor.

The emphasis is on the doctrine of 'implied repeal', which means the position that the judges will take while faced with two apparently conflicting statutes. This kind of a situation may arise when Parliament pass, through inadventence, a statute which while not expressly repealing the earlier Act, is inconsistent with it. The judges will resort to the doctrine to come up with an answer e.g. the latest statute will prevail.



(b) No Parliament may be bound by a predecessor or bind a successor- (Continuation)

The principle that the latest statute will prevail can be seen from cases of Vauxhall Estate Ltd v Liverpool Corporation [1932] 1 KB 733 & Ellen Street Estates v Minister of Health [1934] 1 KB 590. These cases concerned a provision in the Acquisition of Land (Assessment of Compensation) Act 1919 which in regulating the compensation paid when land was compulsory acquired, said that if any land was acquired under the terms of any other statute, then in so far as inconsistent with this Act those provisions shall cease to have or shall have no effect. These words could be read as an attempt to preclude repeal.




The compensation allowed for under the later Housing Act 1925 was less generous, it was in the interest of the Companies involved in the two cases to plead the invalidity of the 1925 Act on that ground. However, neither was successful. In Vauxhall, the Divisional Court held that the later statute impliedly overruled/repealed the earlier statute, even though the earlier statute stated that any later inconsistent legislation was to have no effect. In Ellen, the COA held that “...it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matters there can be no implied repeal.




Limitations to the second basic rule from the critics point of view:

* The operation of the ECA 1972 & the HRA 1998- the critics argued that this principle is no longer valid.

(c) No person or body including a court of law may question the validity of an Act of Parliament's enactments.




According to Dicey, an Act of Parliament will be accepted as valid by courts provided that it has passed through the requisite legislative stages and received the royal assent (the 'Enrolled Bill Rule'). Relevant cases to cite are: Edinburg & Dalkeith Railway v Wauchope [1842] & Pickin v British Railway Board [1974] AC 765. For example in Pickin's case, Pickin owned land on either side of the railway line. The Private Act 1836 provided that if the line was ever abandoned, the land on which it was built reverted to the onwer of the adjacent land. A later Act, the British Railways Act 1968, abolished this provision.




Pickin v British Railway Board [1974] AC 765- (Continuation)

Pickin claimed that the Board had fraudulently misled Parliament when the 1968 Act was passed & so the Act should not be relied on. The court held that once an Act is passed, courts must accept it.The HOL was not prepared to review the conduct of the internal proceedings of Parliament. Lord Reid reiterated the words of Lord Campbell in Edinburgh & Dalkeith & stated in judgement:



(c) No person or body including a court of law may question the validity of an Act of Parliament's enactments. (Continuation)

Pinkin's case: 'For a century or more both Parliament & the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, & I would only support it if compelled by clear authority. But it appears to me that the whole trend of authority for over a century is against permitting any such investigation'.


Limitations on the operation of the doctrine of PS:

There are several reasons/means according to constitutional theory that limits the doctrine of Parliamentary Sovereignty. They are:

(a) Substantive Limitations-(limitations as to the scope & subject matter in respect of which Parliament may legislate)

*Acts of Union with Scotland 1706 & Ireland 1800- In the words of Prof. JDB Mitchell, the UK Parliament was not 'born unfree'. The Acts of Union have some form of 'higher law' status which binds & limits the powers of Parliament.



(a) Substantive Limitations

* The operation of the concept of 'Devolution' in Scotland, Wales & Northern Ireland. There seems to be availability of other legislative power, which might in some ways be regarded as competing sources. (But see Art 28(7) of Scotland Act 1998-which states that the arrangement just described 'does not affect the power of Parliament of the UK to make laws for Scotland'.

* The effect of the HRA 1998 which came into force on 2nd Oct 2000. Under the Act, the higher courts are empowered to declare a primary & secondary legislation incompatible with Convention rights. (See Art 4 of the Act)




* The effect of ECA 1972- whereby EU Law is given preference to inconsistent national law. (See sec 2(2) &(4) of the Act)

* The argument of partial surrender of power-Parliament is viewed to have limited its scope geographically. These have occurred with reference to the dissolution of the Britihs Empire & consequent acquisition of independence by formerly dependent territories e.g. The Statute of Westminster 1931 gives an acknowledgement to the Dominion states. (See the requirement of sec 4 of the Act)




Note: Make reference to the following cases on the operation of sec 4 of the Statute of Westminster: (Partial Surrender of Power)

- British Coal Corporation v King (1935)- where Lord Sankey held that: “As a matter of abstract law. Parliament might even

repeal sec 4 of the Act... but that is theory & has no relation to reality”.

(b) Procedural Limitations- (it concern the course a legislation must take)

Once again reference is made to sec 4 of the Statute of Westminster 1931.



(b) Procedural Limitations

Note: Make reference to the following cases on the operation of sec 4 of the Statute of Westminster:

Manuel v AG (1983)- the issue here was that the Canada Act 1982 was inconsistent with & the derogation from the constitutional safeguards provided for the Indian peoples by the Statute of Westminster 1931. The plaintiff's contention was that consent of all provincial legislatures, the Indian nations of Canada & Federal Parliament were necessary before the amendment to the Canadian Constitution. The Ct held that sec did not require actual consent of the Dominions.


Limitations on the operation of the doctrine of PS: (b) Procedural Limitations

See also the case of Madzimbamuto v Lardner-Burke (1982)- In this case, Lord Reid illustrated the scope of Parliamentary Sovereignty when he accepted that whilst it may be highly improper for Parliament to do certain 'immoral things', if Parliament choose to do them & act immorally, the Cts could not hold the relevant Act of Parliament invalid.

See also the cases of MacCormick v Lord Advocate (1953) & Gibson v Lord Advocate (1975)- In MacCormick the judge reserved opinion on whether breach of the Acts of Union would raise issues justiciable in the Cts (Lord Russel suggested that in such a circumstance... a political remedy would be more suitable... than a judicial remedy... in light of the limited functions of the Cts while dealing with political matters).



(c) Manner & Form Argument- (the UK Parliament is limited as to its composition & procedure)

The issue here is whether the UK Parliament can bind future Parliament. Cases have been cited by the critics in support of the view that the UK Parliament can bind future Parliament e.g. New South Wales v Trethowan [1932] AC 526, where in 1929 the Parliament of New South Wales passed an Act which provided that no Bill for abolishing the Upper House of the legislature (Legislative Council) should be presented for the Royal Assent unless it had been approved at a referendum by majority of electors.



(c) Manner & Form Argument New South Wales v Trethowan (Continuation)It was further provided that this requirement of referendum might not itself be repealed except by the same process. In 1930, a new Parliament was elected in which Labour Party held the majority seats in the Lower House. Two Bills were passed through both Houses, the first purporting to abolish the legislative Council. Neither Bills was submitted to the electors & accordingly two members of the threatened Legislative Council sought an injunction to restrain the submission of these Bills for the royal assent. The PC held that a Bill passed by both Houses of the New South Wales Parliament could not be given royal assent & become law, the requirement of a referendum was binding on the legislature until it has been abolished by a law passed in a manner & form required by the law for the time being.



(c) Manner & Form Argument

See also the case of Harris v Minister of the Interior (1952)-In this case an entrenching provision of the South Africa Constitution demanded 2/3 majority in the Parliament of South Africa, prior to revocation of provisions within the constitution, was upheld. The Ct refused to recognise purported legislation which did not follow this procedure as a valid Act of Parliament.

See also the case of Bribery Commissioner v Ranasinghe [1965] AC 172, where the PC held that the Bribery Tribunal by which the respondent had been convicted was not lawfully appointed b'se it had been set up by an ordinary Act of Parliament of Ceylone. Thus inconsistent with provisions in the constitution.


Is there any other issue(s) to consider while addressing the doctrine of PS?

* Do the Parliament Acts 1911 & 1949 redefine Parliament? These Acts provide that under certain circumstances a Bill may become an Act of Parliament without the Lords assent. But these Acts do not apply to an Act to extend the life of Parliament. So, could court declare such an act invalid on the basis of 'manner & form' if it had been passed without the assent of Lords? It all boils down to this circular argument-Can an Act of Parliament be unconstitutional? Is the phrase 'unconstitutional statute' legally possible in the UK? The answer will depend on answering another question & that is-does legal theory march along political reality? This is why the argument is circular.


Conclusion

* From strict legal sense, Dicey's analaysis of PS could still be said to be accurate. The arguments presented in favour of the existence of limitations on PS are basically academic & are built on such grounds as: political, social, economic etc. However, Dicey's view was based purely on 'legal sovereignty' of Parliament e.g. legally speaking nothing would stop incoming Parliament from repealing the HRA 1998 (but for politcal reasons, it may not do so).

PARLIAMENTARY SOVEREIGNTY Introduction The doctrine of Parliamentary Sovereignty is the dominant characteristic of the British Constitution. The sovereignty/supremacy.

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