PS (Essay A)

Question 1

What is the history of PS?

Answer 1

The doctrine of PS has been firmly established since Parl’s victories over the Corwn during the 1688 Glorious Revolution

Question 2

What is Dicey’s Def of PS?

Answer 2

Positive Limb: Parl. has the right to ‘make or unmake law’

Negative limb assert that ‘no person or body is recognised … as having a right to override or set aside the legislation of Parl.”

Question 3

What is the criticism of Dicey’s Def?

Answer 3

The status of this doctrine has been increasingly challenged

Question 4

What is thesis for the relevance of PS?

Answer 4

Demonstrate that increasing judicial skepticism, modern developments such as the reception of ECHR into national law and EU membership as well as political constraints have placed large strain on the traditional orthodoxy of PS. In its present state of evolution, it is apparent that PS is no longer abosolute.

Question 5

what is the evidence of Judicial Skepticism on PS?

Answer 5

Dicta in Jackson provides evidence of judicial skepticism on PS

Lord Hope: PS is no longer, i it ever was, absolute

Lord Hope: the fact that their Lordships have been willing to hear this appeal and to give judgement upon it is another indication that the courts have a part to play in defining the limits of Parl’s legislative Sovereignty

Lord Steyn: Parl could enact oppressive legislation as a matter of logic and strict legalism but this analysis was based on an absolute conception of PS that was ‘out of place’ in modern Britain.

Question 6

How is this Judicial Skepticism manifested?

Answer 6

Through judicial interpretations by the courts

Increasing Judicial activism suggest that judges are able to internet legislation so radically that it would be tantamount to a refusal to apply it

An example is in Anisminic - HOL attempted to find an interpretation of an ouster clause in an Act of Parl that would preserve judicial review

Question 7

Could you expand on Anisminic?

Answer 7

Court avoided fulfilling the intention of the legislature yet without deliberately setting aside the Act

Wade: Condemned the interpretation as sth which ‘runs wholly counter to the natural meaning of the ouster clause, tantamount to saying that JR is a constitutional fundamental which even the Sovereign Parl could not abolish’

Courts undermined Parl absolute legislative supremacy through their interpretation

Allan (1997): the distinction between re-interpreting and refusing to apply an Act is an ‘elusive’ and unhelpful one.

A court adopting a radical interpretation of the statute as to change its meaning entirely would be tantamount to a refusal to apply it, whether or not the court openly admit it or not.

Question 8

What does Lord Steyn (in Jackson) comment on the Judicial Skepticism on PS?

Answer 8

supremacy of Parl ultimately depends on judicial recognition of it an that if Parl were to assert an extravagant power, courts may have to consider whether this is a constitutional fundamental which even a sovereign Parl cannot abolish.

Question 9

What is the alternative perspectives to the infringement of PS?

(Judiciary did not infringe/ Parl still can overrule the judiciary)

Answer 9

Mullen (2007): important as the Jackson case is, it is probably too soon to predict the end of the sovereignty of Parl or the future role of the judges in the constitution.

Elliot: difficulty for the courts is that entering into constiutional review of legislation may risk an unprecedented consti struggle with the gov, calling for greater acctountability of judges in order to investigate the moral and political view of indv judges.

Griffith: this is exacerbated by the lack of democratic legitimacy of the judges, exemplified by the relative homogeneity of the profile of judges

Goldworthy suggests that it would be wrong for the courts to alter PS because “they could impose all kinds of limits on Parl. authority without any democratic input”

Judges are unlikely to set aside an Act of Parl unless the statute is so repugnant to fundamental principles of the consti.

Question 10

Where can we see that Parl still can overrule the decision in the courts?

Answer 10

Burmah Oil v Lord Advocate!!

• PS has not been totally qualified as Lord Hope claims
• Parl passing the War Damage Act 1965 retrospectively exempted the Crown from liabilities of damages caused during war which it engaged in, after the HL ruled by a majority that Burmah Oil were entitled to compensation for their destroyed plantation exemplifies PS overruling the ROL.

Question 11

What does the decision in Burmah Oil mean for the courts?

Answer 11

• The ROL as Dicey claimed and as the judges in Jackson believed promoted liberty and equality before the authoritative power of Parl, it seems convenient that the gov, controlling parl by maj can annul inconvenient court decisions by fabricating retroactive statutes.
• shows that absolute legislative sovereignty has been qualified if parl has the ability to annul decision made by judiciary
• this is by virtue of the fact that parl has voluntarily eroded its legislative authority by its ‘measures enacted’ as Lord Hope states in Jackson

Question 12

How has the political development and events infringed PS? (EU Law 1972)

Answer 12

• UK entry into EU in 1972. As a consequence of the ECA 1972, Parl cannot legislate any law that conflicted with EU law. Any national laws which are incompatible with EU law have to be disapplied

Evident in Factortame where the Merchant and SInpping Act 1988 was held to be materially incompatible with EU law and therefore had to be disapplied.

Negative limb of the doctrine that ‘no person or body is recognised … as having a right to override or set aside the legislation of Parl’ is therefore directly challenged.

Lord Hope (Jackson): the doctrine of the supremacy of Community law restricts the absolute authority of Parl to legislate as it wants in this area’

Question 13

How has political developments and events infringed PS? (HRA)

Answer 13

• The reception of the ECHR into national law via the enactment of HRA has challenged the orthodoxy of PS
• S3 of HRA 1998 stipulates the courts to read parl.’s enactment, whenever possible, consistent with the relevant provisions of European Convention.

Lord Nicholls (Ghaidan) said that even when as far as stating that courts might be required to ‘depart from the intention of Parl which enacted the leg.’ showing how legislative supremacy is undermined

HRA also allows declaration of incompatibility if leg. is found to breach human rights

• DOI is ceremonial with no legal effect but the gov and Parl are still legally free to decide whether the leg in question should be ammended or repealed.

Kavanagh (2009) - it is not politically feasible to ignore a declaration of incompatibility issued by the court

E.g. passing of the Anti-Terrorism, Crime and Sec Act 2001 - Act found to be incompatible with Art 14 of the ECHR and Parl was pressured to replace it with the Prevention of Terrorism Act 2005

Question 14

What is the Judicial Opinion on the HRA?

Answer 14

Lord Hoffmann in Simms: Prl can, if it chooses to legislate contrary to fundamental principles of human rights; the constraints on the exercise by Parl. of this power are ‘ultimately political, not legal’

Lord Hoffman: but the principle of legality (set out in Pierson) means that Parl must squarely confront what it is doing and accept the political cost

Question 15

What are the political constraints to PS?

Answer 15

Political constitutionalist like Griffith have argued that public opinion would not stand for the enactment of laws that go against the ROL insisting that democratically-elected legislators will be aware that they will be held accountable for their actions

• Sir Ivor Jennings
• British Coal Corp v R

Question 16

What did Sir Ivor Jennings comment on the political constraints to PS?

Answer 16

Sir Ivor Jennings: if they wish for re-election, they may be called upon to give an account of their actions, they must consider in their actions what the general opinion of them must be.

• though the legality cannot be challenged, there is a general consensus that if political criticism is sufficiently strong, the legislative proposal may be challenged and withdrawn

an example: Parl could enact leg. banning smoking in the streets of Paris as a matter of UK law, but the French police and courts are unlikely to take notice

Question 17

What did British Coal Corp v R say about political constrains?

Answer 17

• it is doubtless true that the power of Parl to legislate ofr Canada remains unimpaired: ‘ But that is the theory and has no relation to realities’

shows that according to the doctrine of PS , Parl could repeal the legislation conferring independence upon the former territories of the British Empire, but in reality, as aptly posited by Denning LJ in Blackburn ‘legal theory must give way to practical politics’

• The proposition of the impossibility of the absolute doctrine of PS is strengthened by the fact that Parl is now a democratic institution so there must be some limits to its authority that prevent it from enacting legislation at odds with democratic principles.

Question 18

What are the limitations to the infringement of PS?

Answer 18

• Even though courts have been empowered to review some Parliamentary legislation under ECA 1972 and HRA 1998, in truth neither does present a direct challenge to PS, as Parl permitted this to happen by being the one enacting the legislation.

Lord Bridge (Factortame) -“whatever limitation of its sovereignty parliament accepted when it enacted the ECA 1972 was entirely voluntary’

Counter limitation - That said, Lord Bridge is merely recognizing the ambit of PS in a legal context. it is apparent that he ignored the political pressures that are constantly exerted on Parl to enter into the EU. Therefore, even though his words hold weight in legal theory, it may be fa from the truth having regard to political reality.

Therefore it is an oversimplification to assert a total defeat of the traditional doctrine which has been ingrained in the British constitution since the 1688 Glorious revolution. However, one would nevertheless certainly acknowledge the growing strain on this doctrine.

Question 19

Conclusion of this essay

Answer 19

● The doctrine of Parliamentary sovereignty is being challenged and needs to be challenged, especially since the Parliament is now a democratic institution but not in the past; therefore there must be some limits to this orthodoxy that prevent it from enacting legislation at odds with democratic principles.
● Emphasis on a dynamic experience is important – just as it was the political fact of Parliament’s 17th century victories over the Crown which established the doctrine of Parliamentary sovereignty, the political facts of UK’s membership in the EU, and the reception of ECHR into national law may all be recognised as the circumstances conditioning the constitutional environment in which the doctrine of sovereignty operates and evolves. As aptly put by Bradley, under such conditions, the respective authority of both Parliament and courts are not static but intrinsically open to change.