Parliamentary Sovereignty

Question 1

What bill enshrined the sovereignty of Parliament?

Answer 1

Bill of Rights 1689

Question 2

What is Dicey’s theory on Parliamentary Sovereignty?

Answer 2

the right to make or unmake any law whatsoever; 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

Question 3

3 elements of Dicey’s theory?

Answer 3

1. Parliament is supreme law-making body
2. No Parliament may be bound by predecessor or may bind a successor
3. No person/body may question validity of enactment of Parliament

Question 4

Technically, are there any legal limitations on Parliament?

Answer 4

No - there are political limitations, but not legal. For example, Parliament can pass legislation that alters the constitution.

Question 5

Can Parliament legislate contrary to fundamental rights?

Answer 5

Yes technically; however see Simms - the legality principle. There can be consequences, but it can pass these Acts if it wishes.

Question 6

Was is meant by ‘no entrenchment?’

Answer 6

As the UK constitution is unwritten, there are no entrenched rights or values in the UK’s legal system.

Question 7

What is meant by ‘express repeal’?

Answer 7

Occurs when legislation is passed that expressly states an intention that an earlier Act should be replaced. Often happens when there is a drive to consolidate and simplify legislation.

Question 8

What is meant by ‘implied repeal’?

Answer 8

Comes about (in the absence of express repeal) if a new Act is partially or wholly inconsistent with a previous Act. If so, the previous Act is repealed to the extent of the inconsistency.
Courts will only draw the implication that Parliament intended to repeal an earlier statute where two statutes are irreconcilable.

Question 9

What’s the effect of implied repeal in the context of parliamentary sovereignty and successors?

Answer 9

Parliament cannot bind its successors so as to prevent a statute from being impliedly repealed by a later one which is incompatible with it. Sovereignty takes a ‘continuing’ form.
Borne out in: Vauxhall Estates v Liverpool Corporation [1932], and Ellen St Estates v Minister of Health [1934]: Ds told compensation assessed re. Housing Act 1925, they argued should be Acquisition of Land Act 1919. Failed: implied repeal.

Question 10

Can the courts quash or invalidate primary legislation?

Answer 10

No - even if this legislation might be deemed ‘unconstitutional’ or contrary to international law standards. Also means no judicial review of any alleged procedural irregularity in the way that statute had gone through Parliament during the legislative process.

Question 11

What’s the enrolled bill rule?

Answer 11

Means that if a bill has been enrolled - i.e. it has become an Act of Parliament – it is impossible to go behind that. Any departure from normal procedure during the passage of the bill cannot be corrected by the courts.
See Edinburgh and Dalkeith Railway v Wauchope (1842) and Pickin v British Railways Board [1974].

Question 12

What is ‘entrenchment by manner and form’?

Answer 12

Parliament introducing procedural requirements that make it harder for subsequent parliaments to change the law, for instance by requiring prior popular approval for repeal in a referendum.

Question 13

What case raised the question of entrenchment by ‘manner and form’?

Answer 13

Attorney General for New South Wales v Trethowan [1932]: New South Wales legislature and referendum approval case - has split critics.

Question 14

Two key cases for debate over possibility of procedural limitations on Parliament’s powers?

Answer 14

Thoburn v Sunderland City Council [2002] - “Parliament… cannot stipulate as to the manner and form of any subsequent legislation”.
Contrast with:
Jackson v Attorney-General [2005]: Lady Hale saying if Parliament can redefine itself downwards, it can also do so ‘upwards…’

Question 15

What is Dominion status?

Answer 15

Equal status - given to to recognise a number of semi-independent states under the British Empire i.e. New Zealand

Question 16

Why did granting Dominion status challenge Westminster sovereignty?

Answer 16

Caused significant conceptual challenges to the original Diceyan doctrine of parliamentary sovereignty as it effectively legislated to reduce its own sphere of political authority.

Question 17

What was the key concept to come out of Blackburn v Attorney General [1971] with regards to legal authority of Westminster?

Answer 17

Lord Denning noted that ‘legal theory does not always march alongside political reality.’

Question 18

Is the UK a dualist or a monist state? What does it mean?

Answer 18

UK is a dualist state, in which there is a distinction between domestic and international law.
See Mortensen v Peters: domestic law has a higher status in the UK legal system. International law has to be incorporated.

Question 19

What did Parliament pass to incorporate the (EU) Treaty of Rome 1957 into domestic law?

Answer 19

ECA 1972

Question 20

Three key provisions in ECA re. sovereignty?

Answer 20

1. s 2(1): gave effect to EU law within UK
2. s 3(1): questions of law relating to EU should be determined according to principles of ECJ; e.g. supremacy of EU law over domestic law. See Costa v E.N.E.L. [1964].
3. s 2(4): primacy of EU law: acts passed have effect subject to EU law - issue re. acts enacted after 1972: conflicted with supremacy of Parliament.

Question 21

What was the landmark Factortame case about?

Answer 21

Involved a dispute between the Secretary of State for Transport and a number of companies, headed by Factortame Ltd, over the application of restrictive provisions in the Merchant Shipping Act 1988.
Applicant companies owned 95 fishing vessels. Owned by Spanish nationals but registered as British under 1894 Act. When law was changed and vessels had to re-register, applicant vessels failed to qualify (as managed from Spain). Court could not harmonise EU and UK law.

Question 22

Factortame (No.2) was heard at the ECJ: (R v Secretary of State for Transport, ex parte Factortame Ltd. (No. 2)): what was ruled?

Answer 22

This case is one of the most important in UK constitutional law. It established that the courts could now suspend an Act of Parliament where they were required to do so by EU law.

Question 23

Relevance of case R v SoS Employment, ex parte Equal Opportunities Commission [1995]?

Answer 23

Sex discrimination at work case: court showed that it could disapply provisions within statutes that clearly conflicted with EU law, even without a reference to the ECJ.

Question 24

Relevance of Thoburn v Sunderland City Council [2002]?

Answer 24

Market traders convicted for using imperial measures contrary to EU directive.
Alleged in their appeal that the ECA 1972 (through which the directive had been implemented into UK law) was incompatible with the later Weights and Measures Act 1985.
Laws LJ found no incompatibility, but made number of obiter points which have been very influential.

Question 25

What was the essence of Laws LJ’s obiter points (in Thoburn)?

Answer 25

He concluded that EU law was able to prevail over incompatible domestic statutes because an exception had been created to the doctrine of implied repeal.
He saw this to be a reflection of the existence of a hierarchy of statutes – these could be divided into ‘ordinary’ statutes and ‘constitutional’ ones.

Question 26

How was ECHR incorporated into domestic law?

Answer 26

Human Rights Act 1998

Question 27

Key sections of HRA 1998?

Answer 27

• Section 2 – interpretation of ECHR rights - i.e. court must take into account jurisprudence of ECtHR and there must be ‘dialogue’
• Section 3 – interpretation of legislation - i.e. UK courts must interpret existing legislation in an ECHR-compatible way - note impact on sovereignty
• Section 4 – declarations of incompatibility - political rather than legal effect
• Section 6 – enforcement of rights (and ‘statutory defence’)

Question 28

What is the effect of Simms with regard to parliamentary sovereignty?

Answer 28

Lord Hoffmann established a balance between two key constitutional principles which can work in tension with each other.
• He recognised that Parliament is able, if it wishes, to enact laws which undermine fundamental rights, and therefore clearly accepted the ultimate force of parliamentary sovereignty.
• However, he made the crucial proviso that, if Parliament wishes to do this, it must state its intention in crystal clear terms. Otherwise the courts will apply the strong presumption that Parliament did not intend to restrict rights.
- i.e. Parliament has to accept the ‘political cost’ of restricting fundamental rights

Question 29

What’s the relevance of Anisminic v Foreign Compensation Commission [1969]?

Answer 29

Gov ‘ouster clauses’ re. JR:
section 4(4) of the Foreign Compensation Act 1950 provided that: “The determination by the commission of any application made to them under this Act shall not be called in question in any court of law”.
HoL held did not prevent from challenging.
Courts see ouster clauses as an affront to its constitutional purpose of holding the Executive to account.

Question 30

What are the cases that actually established legality principle?

Answer 30

90s cases
R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994] (prisoner communication with lawyer)
R v Lord Chancellor, ex parte Witham [1997] (scale of court fees)
All to do with whether the Parliamentary Acts specify these restrictions on fundamental rights. i.e. ultra vires.

Question 31

What is ‘common law constitutionalism’?

Answer 31

The courts developing a body of principle re’ judicial ‘activism’.

Question 32

What’s the relevance of Osborn v Parole Board [2013]?

Answer 32

Judicial activism re. parole board: HoL (Lord Reed) held that the Parole Board had acted unlawfully in failing to allow oral hearings for three prisoners when important decisions were being taken about their release or recall on licence.
Lord Reed was developing on the well-established existing principle, evident in the common law since the 1960s, that administrative bodies such as the Parole Board had an obligation to act fairly to those about whom they were making important decisions.

Question 33

Key cases re. access to and independence of the courts?

Answer 33

R (Unison) v Lord Chancellor [2017] - fees re. employment tribunals - access to justice
R (Evans) v Attorney General [2015] - executive’s actions were reviewable by the court

Question 34

Key feature of Kennedy v. The Charity Commission [2014]?

Answer 34

Case concerned a journalist’s Freedom of Information Act request in relation to a charity set up by the controversial politician, George Galloway.
- Constitutional importance of transparency and open justice – what Lord Mance called the “common law presumption in favour of openness”

Question 35

Facts of Jackson v Attorney General [2005]?

Answer 35

Hunting Act 2005 – which banned fox-hunting – was invalid, because it had been passed under the accelerated procedure laid down in the Parliament Act (“PA”) of 1949. Argued 1949 Act void as delegate body (i.e. Parliament comprising only Commons) could not increase its own powers on its own authority.
Courts held 1949 Act valid so Acts passed under the procedure valid too.

Question 36

What was the obiter re. democtratic safeguard to come out of Jackson?

Answer 36

Issue: whether it would be possible for a future House of Commons to extend its own lifetime (beyond the 5-year limit) by adopting a two-stage process using the accelerated PA procedure. Majority said not possible.

Question 37

What did Jackson highlight re. judicial concern of the executive?

Answer 37

potential constitutional dangers of a system in which which a strong central executive can use its majority in Parliament to pass legislation that may undermine fundamental rights and values. Lord Steyn referred to a “complaisant House of Commons” (at para 102.)

Question 38

What does Lord Steyn say in Jackson re. parliamentary supremacy?

Answer 38

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom….Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law.” Unorthodox but interesting.