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Does “Supreme” mean, legally unlimited and unchallengeable? b. Status of the Acts of Union between Scotland and England (and Wales)

Parliamentary Sovereignty
Parliamentary Supremacy
The legislative supremacy of Parliament

Does “Supreme” mean, legally unlimited and unchallengeable?

Focus on the UK Parliament – no such doctrine regarding legislatures of Scotland, NI or Wales. Reference to ‘Parliament’ in these lectures is reference to the UK Parliament (Westminster)

Aims and outcomes
This section of the course aims to consider one of the basic doctrines of the constitution – parliamentary sovereignty. By the end of these lectures you should:
-understand and be able to explain what is meant by parliamentary sovereignty, how it is described by Dicey and how it is viewed by modern writers
-consider whether there have been significant changes in circumstances and in relation to the approach of the courts to parliamentary sovereignty
-does parliamentary sovereignty still deserve to be described as a ‘keystone’ of the constitution? Has it been eroded? Or modified?
-is there a danger of abuse of power? Should it the doctrine be modified?
-you should be able to use relevant case law and legislation to support and illustrate your answers to the above
-you should have read a few different views on the above – do not rely on just one book (on this or any other topic)

Checklist – specific questions to be addressed in this section (come back and look at this again at the end of this section)
What is meant by the doctrine of parliamentary sovereignty?
How did Dicey describe it?
Was the position always as Dicey described it?
What happens if an individual argues in the courts in England and Wales that an Act of Parliament is invalid? In the past? And now?
Was / is the same approach taken by the Scottish courts?
What is meant by implied repeal?
What implications does the doctrine of implied repeal have in practice?
Has the ‘orthodox’ / Diceyan view of Parliamentary Sovereignty changed recently?
If there have been changes, what has prompted the changes?
Have the courts applied the doctrine of Parliamentary Sovereignty in a different way in recent years?
What are the challenges to the orthodox view of Parliamentary Sovereignty?
Are there any legal limits on what Parliament may enact?
Are there non-legal limits on what Parliament may enact?
Should there be legal limits to what Parliament may enact?
Is it possible for Parliament to bind itself? ie impose limits on itself for the future?
Can you illustrate these points by reference to particular areas?

Are there adequate guarantees against the abuse of power?

When we have covered the Rule of Law, come back and consider whether the Rule of Law, as currently understood, acts as a counter-balance to Parliamentary Sovereignty, as currently understood.

Reading
Webley and Samuels, Public Law – Text, Cases and Materials (3rd ed, OUP), chapter 7 and parts of chapters 8, 9, 10 (regarding EU law, Human Rights, Devolution)
Parpworth, Constitutional & Administrative Law (9th ed, OUP) chapter 5
Relevant chapter(s) in other Public law books –
e.g. Turpin and Tomkins, British Government and the Constitution (7th ed, CUP) is a useful account
Remember – you should read the account in more than one textbook in order to see different views and perspectives.

Key questions to address:
1. What is the historical context?

2. What is the orthodox view of Parliamentary Sovereignty? As explained by AV Dicey

3. Is the traditional view supported or challenged by:
a. Transfers of sovereignty to former colonies

b. Status of the Acts of Union between Scotland and England (and Wales)

c. The ‘new’ view / manner and form argument

d. Membership of the EU and relevant obligations

e. Human Rights Act

f. Devolution

g. Common law radicalism (Turpin and Tomkins, 7th ed, p86)

h. Referendums

1. Historical context

Parliament (the Barons, House of Lords, House of Commons) v Monarch

Key areas: law-making, raising finance, religion

Grievances and limits on the Monarch
-Magna Carta 1215
-Petition of Right 1628

The Reformation and Henry VIII
Act of Appeals 1533, Act of Supremacy 1534, Act against the Pope’s Authority 1536

Position of the courts pre-1688:
Parliament subject to common law?

Dr Bonham’s case (1610): Chief Justice Coke:
‘And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometime adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.’

Day v Savadge (1614): Chief Justice Hobart:
‘…even an Act of Parliament, made against natural equity, as to make a man judge in his own case, is void in itself…’

17th century: House of Lords and House of Commons v Monarch
Civil war – Cromwell – Execution of the King – Restoration of Monarchy

Overthrow of James II 1688
Installation of William of Orange and Mary
Bill of Rights / Claim of Right 1689
Complaints set out in the Declaration of Right of 1688:
the late King James…did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom…
…by levying money for and to the use of the Crown … other in manner than … granted by Parliament
…by assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament…..

Installation of William of Orange and Mary

The Bill of Rights of 1689 – England
In Scotland – Parliament enacted the Claim of Right 1689 – similar to the Bill of Rights but not identical
‘a new political “contract” was struck between the Commons, the Lords and the Monarchy, and consequently a new constitutional foundation was laid.’
(Loveland, Constitutional law,6th ed, p26)
The ‘balanced’ constitution
Articles from the Bill of Rights 1689
(1) That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal…

(4)That levying of money for or to the use of the Crown by pretence of prerogative without grant of Parliament… is illegal…’
A key question – how would the courts respond?
2. The traditional / orthodox view – Dicey
Dicey, The Law of the Constitution (1885):
“The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or 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.”
“This doctrine of the legislative supremacy of Parliament is the very keystone of the law of the Constitution.” (Dicey)
Make or unmake any laws
Parliament can change any law on any subject at any time and no one else can either make law or set aside law that parliament has made.
Madzimbamuto v Lardner-Burke [1969] 1AC 645.
Compare US system Marbury v Madison 1 Cr. 137, (1803) U.S. Supreme Court – the foundation for judicial review of legislation in the US constitutional system
Parliament is not bound by its predecessor, nor may it bind its successor.

Godden v Hales (1686)
‘If an Act of Parliament had a clause in it that it should never be repealed, yet without question, the same power that made it, may repeal it.’
Express and Implied Repeal.
Express repeal – Parliament in a statute, will expressly state that that statute or section repeals a previous Act or section.
Implied repeal– when provisions are in conflict, courts must apply the later statute in time, and that the earlier inconsistent statute is impliedly repealed.
Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 and Ellen Street Estates Ltd v Minister of Health [1934] 1KB 590
Parliamentary sovereignty and the courts – the refusal to review the validity of legislation:
What is an Act of parliament?
Can the courts entertain a challenge that an Act of Parliament that has NOT gone through the correct procedure?
Edinburgh and Dalkeith Railway Co. v Wauchope (1842) 8 ER 279 (8 CL & Fin 710) Lord Campbell
“All that a court of justice can do is to look to the Parliament Roll: if from that it should appear that a Bill has passed both Houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, or what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both Houses.”
Lee v Bude and Torrington Railway Co in (1871) LR 6 CP 576 Willes J
‘If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it; but, so long as it exists as law the courts are bound to obey it’
Pickin v British Railways Board [1974] AC 765 – Lord Reid:
‘The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its standing orders perform these functions. ……
For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them….’
Jackson v Attorney General [2006] UKHL 262
Parliament Act 1911 – HL veto over Bills reduced to delaying power of 2 years
Parliament Act 1949 – 2 years reduced to 1 year (passed under the Parl Act procedure)
Hunting Act 2004 – passed under Parl Act procedure – challenged in Jackson
Lord Bingham: ‘I feel some sense of strangeness at the exercise which the courts have…been invited to undertake in these proceedings….I am, however, persuaded that the present proceedings are legitimate….the issue concerns no question of parliamentary procedure such as would, and could only be the subject of parliamentary inquiry, but a question whether…these Acts are “enacted law”.’
What if legislation appears to contravene international law?
Cheney v Conn [1968] 1 All ER 779 or [1968] 1 WLR 242
“What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment the highest law in this country, is void.”
Mortensen v Peters (1906) SLT 227
‘For us, an Act of Parliament duly passed by Lords and Common and assented to by the King is supreme, and we are bound to give effect to its terms’
R v Jordan [1967] Crim LR 483
Only Acts of Parliament are immune from review
Bowles v Bank of England [1913] 1 Ch 57

3. Is the traditional view supported or challenged by:
a. Transfers of sovereignty to former colonies
If an Act of Parliament grants independence to a former colony, is it legally possible for an Act of Parliament to take it back in a later Act?
If an Act of Parliament states that Parliament will not make legislation for former colonies, will a later Act which does make legislation for former colonies be regarded as impliedly repealing the earlier Act?
Statute of Westminster 1931, s.4 :
“No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.”
British Coal Corporation v The King [1935] AC 500, 520
“It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired; indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute. But that is theory and has no relation to realities.”
Madzimbamuto v Lardner Burke [1969] 1 AC 645
Blackburn v AG [1971] 1 WLR 1037, 1040
“Freedom once given cannot be taken away. Legal theory must give way to practical politics.”
Manuel v AG [1983] Ch 77
3. Is the traditional view supported or challenged by:

b. Status of the Acts of Union
MacCormick v Lord Advocate [1953] SC 396
Gibson v Lord Advocate [1975] SLT 134
Sillars v Smith [1982] SLT 539
Pringle [1991] SLT 330
Act of Union with Ireland Act 1800 – a union to last forever
3. Is the traditional view supported or challenged by:
c. The ‘new’ view / manner and form argument
Continuing and self-embracing theories of parliamentary sovereignty.
Is it really the case that Parliament cannot bind future Parliaments? If we accept that all future Parliaments have equal sovereignty to the present Parliament can there ever be an occasion when the present Parliament make new constitutional arrangements for the future?
Dicey is a proponent of the ‘continuing’ theory that Parliament being sovereign is always able to exercise sovereign powers and thus can always repeal any restrictions placed on its power by the legislation of previous Parliaments.
R.F.V. Heuston, Essays in Constitutional Law (2nd edn,), Ch 1, pp6-8
1) Sovereignty is a legal concept: The rules which identify the sovereign and prescribe its composition and functions are logically prior to it.
2) There is a distinction between rules which govern, on the one hand, a) the composition, and b) the procedure, and on the other hand, c) the area of power, of a sovereign legislature.
3) The courts have jurisdiction to question the validity of an alleged Act of Parliament on grounds 2a) and 2b) but not on ground 2c).
4) This jurisdiction is exerciseable either before or after the Royal Assent has been signified – in the former by way of injunction, in the latter by way of declaratory judgement.
Doctrine of manner and form.
Thus if a statute prescribes a specific procedure (manner and form)
Attorney- General for New South Wales v Trethowan [1932] AC 526
3. Is the traditional view supported or challenged by:

d. Membership of the EU and relevant obligations
What aspects of EC law do not fit easily with Parliamentary sovereignty? By what legal means did the UK make provision for joining the EU (what was then the EEC) and for allowing EU law to be applied in the UK? What have the courts done when faced with a conflict between EU law and an Act of Parliament? Can you refer to relevant case law?
What effect has accession to the EC had on the doctrine of parliamentary sovereignty? Has it eroded the doctrine? Does the EC Act 1972 have any special status? Is the 1972 Act open to implied repeal? Is it open to express repeal? What amounts to a ‘constitutional statute’?

Just for background
-The accommodation of EC law within other Member States
Formal Amendment to Constitution e.g. Third Amendment to Constitution of Ireland:
‘The State may become a member of the European Coal and Steel Community…, the European Economic Community… and the European Atomic Energy Community….No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, necessitated by membership of the Communities, or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State’. (Amendment of 1972)
Note the different issues dealt with in this provision.
Issues to be dealt with:
(a) How to enable UK organs of government to comply with the obligations of Community membership including the need to implement non-directly applicable legislation quickly
(b) How to accommodate directly applicable laws ie ensure that UK system recognise EC Regulations as laws which apply in the UK
(c) How to ensure that EC law would be accorded precedence over conflicting national law
European Communities Act, 1972
-Implementing EC directives:
S.2(2), S.2(4)…delegated legislation
-Accommodating directly applicable laws:
S.2(1): All such rights, powers, liabilities, obligations and restrictions from time to time arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable Community right” and similar expressions shall be read as referring to one to which this subsection applies.”
-Ensuring Community law is given precedence over conflicting national law
S.2(4): “…any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section;…”
-The approach of the courts in the United Kingdom
In order to deal with this area and the questions it raises, you will need to read these cases (or at the very least, extracts from those cases in the case books). In reading these cases you should not get bogged down in the facts – just try to work out the basic legal issues. Concentrate on the legal principle developed in the cases:
-do the courts accept the supremacy of EC law
-do the courts reject the traditional view of implied repeal as explained in the Ellen Streets Estates case (how could you tell?)
Macarthys Ltd v. Smith [1979 3 All ER 325 or 1979 CMLR 44. After reference to the European Court of Justice, [1981] QB 180 or [1981] 1 All ER 111
‘If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament…Unless there is such an intention and express repudiation of the Treaty, it is our duty to give priority to the Treaty.’ (Denning, before reference made)
“Community law is now part of our law; and, whenever there is any inconsistency, Community law has priority.” (Denning after reference made)

Garland v British Rail [1983] 2 AC 751
Question left open of
‘whether anything short of an express positive statement in an Act of Parliament passed after January 1, 1973, that a particular provision is intended to be made in breach of an obligation assumed by the United Kingdom under a Community treaty would justify an English court in construing that provision in a manner inconsistent with a Community treaty obligation of the United Kingdom…’
The Factortame litigation:
1. The initial question is put to the British and questions are sent to the European Court of Justice separately from the Divisional Court and the House of Lords:
Factortame v Secretary of State for Transport [1989] 2 All ER 692 (HL) or [1990] 2 AC 85 or [1989] 2 WLR 997
2. The European Court of Justice replies to the question sent by the House of Lords:
R v Secretary of State for Transport Ex parte Factortame Ltd (Court of Justice)
[1990] ECR 2433
3. The House of Lords applies the response of the Court of Justice:
R v Secretary of State for Transport Ex Parte Factortame Ltd No 2
[1991] 1 AC 603 (has ECJ and HL rulings) or [1990] 3 WLR 818 or [1991] 1 All ER 70
4. The European Court of Justice responds to the Divisional Court’s original question on the substance of the law – whether the UK law was compatible with EC law
R v Secretary of State for Transport ex p. Factortame [1991] 3 All ER 769 or [1991] 3 CMLR 589

Action had also been taken by the European Commission against the UK:
Commission v UK (Court of Justice) [1990] 3 CMLR 375 – you do not need to read this one – just be aware that action was taken against the UK by the Commission)
5. House of Lords holds that UK Government is liable to pay compensation for losses suffered due to the Merchant Shipping Act 1988:
R. Secretary of State for Transport ex parte Factortame Ltd [1999] 4 All ER 906
******
R v Secretary of State for Employment ex parte Equal Opportunites Commission
House of Lords. [1995] 1 AC 1 / [1994] 1 WLR 409
The idea of constitutional statues which are not subject to implied repeal
Thoburn v Sunderland City Council [2002] 1 CMLR 50; [2003] QB 151
Weights and Measures Act 1985 – as originally enacted – allowed use of metric and imperial units of weight
EU Metrication Directive – required use of metric units of weight
Weights and Measures Act 1985 – amended by subordinate legislation: the Units of Measurement Regulations 1994 and other measures– imperial units of measurement no longer permitted for trade purposes other than as supplementary indication to metric units.
Subordinate legislation adopted under the EC Act 1972
But had the 1985 Act impliedly repealed the rule-making power contained in the 1972 Act? Ie had section 2(2) of the 1972 Act been repealed to the extent that it empowered legislation which would be inconsistent with section 1 of the 1985 Act as enacted? (See paragraphs 38-49);

Various conclusions:
-no inconsistency between s 1 1985 Act and s.2(2) EC Act (para 50)
– Community law cannot entrench itself (para 58-59):
‘there are no circumstances in which the jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself. This is, of course, the traditional doctrine of sovereignty. If it is to be modified, it certainly cannot be done by the incorporation of external texts. The conditions of Parliament’s legislative supremacy in the UK necessarily remain in the UK’s hands. But the traditional doctrine has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle.’
The EC Act 1972 is a constitutional statute which by force of the common law cannot be impliedly repealed – see paragraphs 60-67
‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not.’
How to identify a constitutional statute? See para 62
• Is the traditional view supported or challenged by:
o Human Rights Act
o More on this later
• Is the traditional view supported or challenged by:
o Devolution
o More on this later
• Is the traditional view supported or challenged by:
o Common law radicalism (Turpin &Tomkins, 7th ed, p86)

‘Woolf leads judges’ attack on ministers’, The Guardian 4 March 2004
http://politics.guardian.co.uk/homeaffairs/story/0,11026,1161676,00.html
text of Lord Woolf’s speech:
http://politics.guardian.co.uk/constitution/story/0,9061,1161915,00.html and http://politics.guardian.co.uk/constitution/story/0,9061,1161913,00.html
or see equivalent coverage in other newspapers
Lord Woolf, Droit Public – English Style, [1995] Public Law 57, 69:
‘…if Parliament did the unthinkable, then I would say that the courts would also be required to act in a manner which would be without precedent. Some judges might choose to do so by saying that it was an unrebuttable presumption that Parliament could never intend such a result. I myself would consider that there were advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold. They are limits of the most modest dimensions which I believe that any democrat would accept. They are no more than are necessary to enable the rule of law to be preserved.’
• Is the traditional view supported or challenged by:
o Referendums

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