Parliamentary Sovereignty

Transcription

1 CHAPTER 7 property of 1stclasslawnotes Parliamentary Sovereignty Doctrines: Legislative Supremacy of Parliament Rule of Law Separation of Powers Parliamentary Supremacy Who has the ultimate law making power? Westminster Parliament (HC, HL, Monarch) has the power to make and unmake law, and it has the power not to have that law challenged by anyone else. Dicey's "traditional" or "orthodox" theory: Note the date and historical context For Dicey, Parliament has "the right to make or unmake any law whatever; and further no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament" - An Introduction to the Study of the Law of the Constitution (1885) Three Principles: 1. Parliament can legislate for anyone, anywhere - there are no substantive or territorial limits upon the legislative powers of Parliament 2. A current Parliament cannot be bound by its predecessors or bind its successors 3. Nobody else, including the Courts, can challenge the validity of an Act of Parliament 1. First Principle Parliament can legislate for anyone, anywhere - there are no limits in legal theory in relation to Parliament s power to legislate Treaty of Union Pact between Scotland and England, there would only be one Parliament supreme over two countries. Scotland Act Create devolved assemblies and give them certain legislative capacities, altering the law making powers and power relations between these countries, even though Westminster Parliament maintains supremacy. Parliament Acts 1911 and alters law making capacities of Parliament, changing the relationship between the House of Commons and the House of Lords (HoC can push through legislation even if the HoL doesn't agree). European Community Act 1972 House of Lords Act 1999 Does Parliament have any limits on its legislative capacity re: international law? 11

2 There are two types of international law, (i) customary international law and (b) treaties. The UK operates a dualist position in regards to international law, meaning that it only becomes part of UK law when given effect by an Act of Parliament. Challenges to UK legislation on the basis that it conflicts with the UK's obligations under international law have failed. Customary International Law Mortensen v Peters (1906) - International ship fishing in international waters off Scotland. An Act of Parliament from the 19th century made it illegal to fish in those waters, and the captain was charged. How can the captain be guilty of an offence of fishing in international waters that do not belong to the UK? Lord Dunedin: "For us an Act of Parliament duly passed by Lords and Commons and assented to by the King is supreme, and we are bound to give effect to its terms" - no territorial restrictions Treaties Cheney v Conn [1968]- Individual challenging provision of an Act about collecting taxes, arguing that because the tax funded nuclear weapons, the Act was in breach of the Geneva Convention and other international laws. Ungoed-Thomas J: "What the statute itself enacts cannot be unlawful, because what the statute says is itself the law, and the highest form of law, that is known in this country. It is law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment is illegal." - content/substance cannot be illegal Sir Ivor Jennings : What if Parliament passed a law prohibiting smoking on the streets of Paris? The fact that it is unenforceable is irrelevant to the actual legal validity of the law itself and it would nevertheless be a valid law according to traditional theory. Richard Glancey: What if it passed a law stating that it was illegal for the sun to rise every day? Yes, so long as it had been through the House of Commons and House of Lords, and given Royal Assent, then it would be a valid law. Lord Reid (Almost 100 years after Dicey) Madzimbamuto v Lardner Burke (1969) - "It is often said that it would be unconstitutional for the UK Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid." Important distinction: legal validity and practical reality or politics. The latter does not negate the validity of an Act of Parliament. 2. Second Principle A current Parliament cannot be bound by its predecessors or bind its successors Parliamentary supremacy means that no laws can be entrenched and thus each newly elected Parliament can change any or all of the laws in force at the time it is elected. The main control over this in practice is the need to appease voters, but the theoretical power is very wide. Two methods exist by which a law can be changed completely: Express Repeal - e.g. the statute simply states that its effect is to repeal part or all of a previous statute. This power cannot be restricted - Godden v Hales (1686) 12

3 There are two types of international law, (i) customary international law and (b) treaties. The UK operates a dualist position in regards to international law, meaning that it only becomes part of UK law when given effect by an Act of Parliament. Challenges to UK legislation on the basis that it conflicts with the UK's obligations under international law have failed. Customary International Law Mortensen v Peters (1906) - International ship fishing in international waters off Scotland. An Act of Parliament from the 19th century made it illegal to fish in those waters, and the captain was charged. How can the captain be guilty of an offence of fishing in international waters that do not belong to the UK? Lord Dunedin: "For us an Act of Parliament duly passed by Lords and Commons and assented to by the King is supreme, and we are bound to give effect to its terms" - no territorial restrictions Treaties Cheney v Conn [1968]- Individual challenging provision of an Act about collecting taxes, arguing that because the tax funded nuclear weapons, the Act was in breach of the Geneva Convention and other international laws. Ungoed-Thomas J: "What the statute itself enacts cannot be unlawful, because what the statute says is itself the law, and the highest form of law, that is known in this country. It is law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment is illegal." - content/substance cannot be illegal Sir Ivor Jennings : What if Parliament passed a law prohibiting smoking on the streets of Paris? The fact that it is unenforceable is irrelevant to the actual legal validity of the law itself and it would nevertheless be a valid law according to traditional theory. Richard Glancey: What if it passed a law stating that it was illegal for the sun to rise every day? Yes, so long as it had been through the House of Commons and House of Lords, and given Royal Assent, then it would be a valid law. Lord Reid (Almost 100 years after Dicey) Madzimbamuto v Lardner Burke (1969) - "It is often said that it would be unconstitutional for the UK Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid." Important distinction: legal validity and practical reality or politics. The latter does not negate the validity of an Act of Parliament. 2. Second Principle A current Parliament cannot be bound by its predecessors or bind its successors Parliamentary supremacy means that no laws can be entrenched and thus each newly elected Parliament can change any or all of the laws in force at the time it is elected. The main control over this in practice is the need to appease voters, but the theoretical power is very wide. Two methods exist by which a law can be changed completely: Express Repeal - e.g. the statute simply states that its effect is to repeal part or all of a previous statute. This power cannot be restricted - Godden v Hales (1686) 12

4 Implied Repeal - e.g. where a statute is inconsistent with one passed before it, the later one prevails and thus impliedly repeals the inconsistent parts of the earlier statute. Earlier statute gave better compensation to landlords re: compulsory purchase of land. Earlier statute stated that any other conflicting statute, at any other time, was not to be followed - later conflicting statute which gave worse compensation was nevertheless followed: Vauxhall Estates Ltd v Minister of Health (1932) Ellen Street Estates v Minister of Health (1934) This is why it is not possible, in traditional legal constitutional theory, to be able to entrench any provisions in the UK constitution. But, what about: s2(4) European Communities Act modified the theory? s3(2)(b) Human Rights Act appears to state that the HRA does not impliedly repeal previous inconsistent statutes Thoburn v Sunderland City Council (2002) - Laws LJ stated that the common law recognised a category of constitutional statutes which by force of the common law could not be impliedly repealed. See page 19 of workbook. 3. Third Principle Courts cannot challenge the validity of an Act of Parliament However, this principle only relates to primary legislation (Acts of Parliament). Anything subordinate to an Act, such as secondary legislation, legislation from a devolved Assembly or Local Authority by-laws, does not fall within the doctrine and can be challenged by the courts 2 different types of challenges to Acts of Parliament (both roundly rejected by the courts, but people nevertheless keep trying as it is a principle not set in stone and is therefore liable to change): 1. Substantive Challenges - the content of the Act itself is unlawful, and the courts should not therefore follow that particular Act of Parliament. R v Jordan [1967] - D convicted of inciting racial hatred under the Race Relations Act. He claimed that it was unlawful because it breached his fundamental right of freedom of expression (prior to HRA). Courts disagreed, arguing that the Act doesn't breach his rights and even if it did there is nothing they could do about it, as Parliament has the power to legislate over fundamental rights. 2. Procedural Challenges - the procedure by which the Act was passed is deficient and so, therefore, is the resulting Act of Parliament. Heath v Pryn (1670) - Challenge to Act of Parliament, but the Judges would not admit for the particular Act to be questioned because as it was made by the Commons, Lords and King, they "ought not to pry into any defects as to how the circumstances of the Act came together". Edinburgh & Dalkeith Railway v Wauchope (1842) - In relation to railway property. If a particular person was to be affected by the provision of the Act, that person had to be given notice about the bill as it was passing through Parliament so as to make representations. The Act was passed, but Wauchope was not given notice and he argued that the rules of how the Act should be passed had been breached, and the Act was therefore defective. The Court rejected his argument, noting that no court can inquire into the manner in which it was introduced into Parliament, all it can do is look into the parliamentary roll, i.e. is it on the statute books? is it on the roll? has it been passed by the Commons and Lords with Royal Assent? If so, no court of justice can look into it and any questions about the Act should be directed to Parliament ("Enrolled Act Rule"). Lord Campbell: "all that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament." British Railways Board v Pickin (1974) - Pickin argued that the way in which an Act was passed was defective because it had been passed fraudulently - British Railways Board had provided false information to Parliament as to why the Act was needed. 13

5 Lord Reid: "The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution" When looking at Dicey's theory, bear in Mind: Its date and historical nature Its status - what is it? It is a constitutional doctrine that has been accepted by the courts for hundreds of years For Dicey there was a difference between Legal Sovereignty of Parliament and Political Sovereignty of the electorate Countries with written constitution often possess a constitutional court which does have the power to set aside decisions or Acts which breach their constitution, e.g. the US. Parliamentary Supremacy - Impact of European Communities Act 1972 Traditional Theory (Dicey): 1. Parliament can legislate for anyone, anywhere - there are no substantive or territorial limits upon the legislative powers of Parliament 2. A current Parliament cannot be bound by its predecessors or bind its successors 3. Nobody else, including the Courts, can challenge the validity of an Act of Parliament Characteristics to bear in mind It is purely a legal theory - it is not concerned with politics or practical reality It is a 300 year old theory, recognised by Dicey 100 years ago. The doctrine itself has the status of a constitutional doctrine but it isn't set out in stone, and can evolve and change. European Communities Act 1972 Extremely important Act that radically changed the UK's constitution by altering the law-making powers within the UK and the way in which the Courts operate in relation to legislative capacity bodies. UK is traditionally a dualist state. International law is not binding - it is only persuasive and the courts are not bound to give effect to it in domestic courts. However, the whole purpose of ECA 1972 was to incorporate what was at the time the Treaty of Rome into domestic law (now have TEU and TFEU). It incorporated international law into domestic law, making it legally binding in domestic courts. It incorporated international law into domestic law, making it legally binding in domestic courts: Practical Effect s2(1) - States that certain European laws are to have direct effect in domestic law s2(2) - Provides mechanisms for future European law to be enacted into domestic law, to save having to create an Act of Parliament. s2(4) - Duty upon court - Rule of construction for the judiciary - where you have a conflict between domestic law on one hand and European law on the other, the domestic courts must give precedence to European law even to the extent of overriding domestic law. Any enactment passed or to be passed are subject to the primacy of European law - an attempt to bind successors. Law making powers in certain areas have been transferred to Europe The UK is under a duty to enact into domestic law whatever laws Europe makes (in the relevant areas) The Courts are under a duty to interpret and apply the relevant laws in accordance with European Law and the European Court of Justice decisions. Potential impact on the traditional doctrine of Parliamentary Supremacy: Parliament can legislate on anything, for anyone, anywhere. Westminster Parliament has given up some of its law making powers in certain areas, and consequently it could be argued that it is no longer supreme (does not have the final say/doesn't dictate subject matter) in those certain areas of law. 14

6 A current Parliament cannot be bound by its predecessors or bind its successors. The 1972 Parliament has bound all future Parliaments, especially in respect of provision s2(4) relating to future enactments. Courts cannot challenge the validity of an Act of Parliament. UK Courts have a duty to give primacy to European law over domestic law. Courts can challenge the validity of Acts of Parliament if they do not comply with European Law. Has all of this really happened? Factortame Spanish fishing vessels were registering as British vessels to take advantage of fishing quotas, so the UK passed the Merchant Shipping Act 1988 to try to prevent this from happening. Factortame, a Spanish fishing company, said that the MSA 1988 breached certain provisions of EU law. The UK court wanted to send a reference to the European Court of Justice, asking for advice relating to EU law - Factortame said they could not wait that long and requested immediate relief in the form of an interim injunction which suspended the provisions of MSA. 2 big problems: 1. The Courts did not have the jurisdiction or power to grant such relief. The Crown Proceedings Act 1947 expressly forbid the granting of interim injunctions against the Crown. 2. The relief would be the suspension of an Act of Parliament, which breaches Parliamentary Supremacy. The MSA 1988 was in direct conflict with treaty provisions, but it is a piece of Primary Legislation. The traditional theory of Parliamentary Supremacy holds that the Court cannot override, set aside or challenge the validity of an Act of Parliament. Result of Factortame: UK Court granted interim relief. The House of Lords decided that the UK Court were under a duty to give primacy to EU law, even if that means overriding domestic law by virtue of s2(4) European Communities Act Two-fold result: 1. Crown Proceedings Act 1947 'suspended' by the UK Court in order to grant relief 2. The Merchant Shipping Act 1988 'disapplied' by the UK Court Significance: It could be argued that all three aspects of Dicey's traditional theory of Parliamentary Supremacy have been impacted to a significant degree. Parliament can legislate on anything, for anyone, anywhere. Parliament is supposed to be able to legislate however it wants, regardless of subject matter or territorial extent. It knew the provisions of the ECA 1972 yet enacted the MSA 1988 which conflicted with it. The Court 'suspended' the MSA due to this conflict so the Parliament of 1988 was prevented from legislating how it wanted by the Parliament of The traditional doctrine of Parliamentary Supremacy was departed from. A current Parliament cannot be bound by its predecessors or bind its successors. The MSA 1988 was passed by the Parliament of 1988, but its competency was limited by and bound by one of its predecessors, the Parliament of In traditional theory of Parliamentary Supremacy, if there are two conflicting Acts on the statute books, the previous Act will be impliedly repealed and the latest intention of Parliament will be followed. However, in this case the Courts used the 1972 Act to reinterpret the MSA 1988, turning implied repeal on its head. In Thoburn v Sunderland City Council 2002, the Divisional Court indicated that the ECA 1972 was not subject to implied repeal and that there were some constitutional statutes that could only be repealed expressly. The ECA 1972, then, has some sort of entrenchment to it and it cannot be impliedly repealed. This has massive constitutional implications. Courts cannot challenge the validity of an Act of Parliament. According to traditional theory, the MSA 1988 and the CPA 1947 are Acts of Parliament and the UK Courts are therefore compelled to comply with them, regardless of their substantive content. However, in this instance this did not occur: it is true that the Acts themselves were not eradicated, but the Court did temporarily suspend certain provisions of those Acts for Factortame. To that degree, the traditional doctrine was departed from. But, it could be argued that the ECA 1972 has not had a significant effect on the traditional theory of Parliamentary Supremacy The ECA 1972 was itself a positive Act of Parliament, carried out by Parliament itself, and which Parliament itself could expressly repeal. Parliament has not limited itself or its Parliamentary Sovereignty and could repeal the ECA merely by passing an Act which stated "The ECA 1972 is abolished". 15

7 In instances where the Act has not been expressly repealed, are the Courts overriding the traditional theory of the supremacy of Parliament by giving primacy to EU law? It could be argued that actually, all they are doing is what Parliament told them to do. They acted as they did in Factortame as Parliament instructed them in the ECA An Act of Parliament. Rather than being an example of how Parliament has limited its power, it is actually a great example of the power that Parliament has - it has changed the way it operates and instructed the Courts to give primacy to EU law over domestic law until told otherwise. Parliamentary Supremacy - continuing v self-embracing concepts of supremacy, and Manner and Form theory. The paradox within Dicey's traditional theory: If Parliament is omnipotent, with no internal or external limits, can it make an Act of Parliament that cannot be repealed, or can only be repealed in certain circumstances? If it cannot, then it is not all powerful. If it can, then there are limits upon it and it cannot act as it wishes. How can you address this conundrum? Look at different conceptions of supremacy. 1. Self-embracing conception of sovereignty (limited) 2. Continuing conception of sovereignty (unlimited) Self-embracing nature of Parliamentary Sovereignty (limited sovereignty) There has only ever been one Parliament. The personnel might change, but the vehicle itself does not. Parliament does have the power to restrict its own powers, it has master over itself and can limit itself. Continuing nature of Parliamentary Sovereignty (unlimited sovereignty) There are a number of discrete and distinct Parliaments, i.e. every 4-5 years. Each is separate and has complete sovereignty or supremacy over themselves, hence why one Parliament cannot bind or be bound by other Parliaments. There are no internal (express/implied repeal prevents Parliament binding itself) or external limits on Parliament (it can pass laws on anything, for anyone, anywhere). Dicey This accords with Dicey's traditional theory of Parliamentary Sovereignty, which has been endorsed by the courts in cases such as Wauchope and Pickin. Sir William Wade (The Basis of Legal Sovereignty, 1955). Held the view that Parliament has continuing Sovereignty. Justified this view on a historical basis - at the time of the Glorious Revolution, an unbreakable political agreement was forged between the three organs of the state (legislative, executive, judiciary) which placed Parliament at the apex of the constitutional framework. Any attempt to go against that continuing nature of Parliamentary supremacy is in contradiction to that political agreement, and this political and constitutional rule will continue to operate and exist unless and until the three organs of the state make a new agreement to change the status quo If one of the three organs does not agree to such a change and a change is attempted or actually takes place then that will be a constitutional revolution, as one proponent will be rebelling against the others and altering the constitutional pact entered into during the Constitutional revolution However, it is questionable whether Wade's theory is accurate, because Parliament can limit its own power. The Parliament Acts of 1911 and 1949 and the European Communities Act 1972 are examples of Parliament restricting its own powers, therefore providing evidence that Wade s view is wrong (and therefore that the continuing view of sovereignty is wrong) Manner and Form Theory 16

8 Conforms to self-embracing concept of supremacy Agrees with Orthodox theory that Parliament cannot absolutely entrench any provision forever. However, it believes that Parliament does have the power to create internal constraints on itself. It can create binding rules about how legislation can be passed in the future and what form it must take, but that it cannot dictate the content of a future Parliament's laws, hence the manner and form tag. For example, it could create an Act which can only be amended or repealed if certain conditions are satisfied, such as majority vote in favour by a referendum. If a later Act tried to amend or repeal this special Act without following the procedures laid out in the earlier Act, then the later Act would not apply according to the view and the Court should not uphold that law. Sir Ivor Jennings Prince Analogy: If a Prince has sovereignty, then he really does have complete unlimited power. If he said he was going to limit himself and create a legislature and particular laws would only exist if they were passed by that legislature, then if he had proper supremacy there would be nothing stopping him afterwards from abolishing that legislature. If the Prince doesn't have sovereignty, and creates a legislature and particular laws that would only exist if they were passed by that legislature, and a subsequent Prince then tries to abolish that legislature, it would not be a valid law because it is not in the correct manner and form. In the first, you have supremacy or sovereignty. The second isn't about sovereignty; it is not limiting the content of the law, but rather the manner and form of true laws. As long as they conform to the correct manner and form, then there are no limits. Why is this desirable? The manner and form theory would allow protection of special or constitutional Acts, and it also prevents the problem of allowing absolute entrenchment for evermore - so it tries to champion the middle ground between the two extremes. Proponents point to the Parliament Acts 1911 and 1949 and the European Communities Act 1972 as evidence that it is not only desirable, but realistic too. Evidenced by recent developments such as the European Union Act 2011, which is referendum locked (ss2, 3 and 4) whereby any changes in the relationship between the UK and the EU must be done by referendum. But, these provisions will only work if it is accepted that the manner and form theory is correct - if the orthodox view is maintained, Parliament could merely pass an Act incorporating the relevant changes without holding a referendum and that would be valid. Critics have evidence that this theory is inaccurate: Vauxhall Estates, Ellen St Estates and Thoburn - that you cannot have manner and form requirements in legislation because it isn't worth the paper that it's written on. Neither side has completely won the argument over the other, both sides can point to evidence to suggest their theory is the correct interpretation. 17