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Parliamentary Sovereignty

and its limitations


the impact of EU membership,
ECHR ratification and
devolution on parliamentary
sovereignty

Parliamentary Sovereignty

What is parliamentary sovereignty?


What is parliamentary democracy?

Parliamentary Sovereignty

What is parliamentary sovereignty?


What is parliamentary democracy?

nciple of public constitutional law : Meaning: the legislature is supreme and stan
above other institutions of the State (the executive and the judiciary)

Parliamentary Sovereignty

What is parliamentary sovereignty?

The most important principle of the UK constitution.


According to it, Parliament is the supreme legal authority in the UK,
which can create or end any law.
The courts cannot overrule its legislation and
no Parliament can pass laws that future Parliaments cannot alter.

Parliamentary Sovereignty

What is parliamentary sovereignty?


What is parliamentary democracy?

Albert Dicey in
Introduction to the Study of the Law of the Constitution (1885):

Parliament... has... 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.

Parliamentary Sovereignty
The doctrine
(1) Parliament can make any law
(2) No Parliament can bind a future
parliament (any law can be changed
by the future parliament).
(3)No Court can question a valid Act
of Parliament

Parliamentary Sovereignty

Parliamentary Sovereignty: the


most important characteristic of the
British Constitution

In the USA or Germany, the legislature is


limited by the Constitution which contains
fundamental rights which need to be
upheld by the legislature. The U.S.
Supreme Court and the German Federal
Constitutional Court can declare laws
passed by the legislature to be
unconstitutional and therefore invalid.
In the UK there is no Constitutional Court

(1)There can be no legal limitation


on the power of parliament to enact
legislation.

Through the ordinary processes of legislation, parliament can make


laws regulating civil conduct, and in addition, it is also able to alter
constitutional framework of the state.

Parliament has thus passed laws, for example, to extend its own
life (Septennial Act 1716) extending the duration of parliament
from 2 to 7 years. (now 5 years: Parliament Act 1911, s.7)

to alter the line of succession to the throne (Act of Settlement of


1700; Abdication Act 1936)

to reform the composition of houses of Parliament ( Reform Acts


1832, 1868, Life Peerages Act, 1958; House of Lords Act 1999.)

(1)There can be no legal limitation


on the power of parliament to enact
legislation.

Parliament can even alter the meaning


of what constitutes an Act of
Parliament. Parliament Acts 1911-1949,
which enabled Bills to become Acts
without the assent of the House of
Lords.

(2)Act of Parliament cannot bind its


successors, i.e. later parliaments.

Principle of Continuing sovereignty


reason: limitation of legislative action of
future parliaments by, for example,
seeking to provide special protection for a
statute against subsequent repeal would
be to impose a restriction on parliaments
competence and therefore destroy its
sovereign authority.
if there exists a conflict between Acts: the
later Act must be assumed to have impliedly
repealed the earlier, this is generally
referred to as the doctrine of implied repeal.

(3) No court can question Act of


Parliament

The authority of an Act of Parliament may not be


called into question by any other institution of the
state. Therefore, the UK has no constitutional court
as can be found in other jurisdictions.

The judiciary, in particular, have a constitutional


duty to give full effect to the provision of an Act of
Parliament. In the words of Lord Reid in The judiciary,
in particular, have a constitutional duty to give full
effect to the provision of an Act of Parliament. In the
words of Lord Reid in Madzimbamuto v LardnerBurke [1969] 1 AC 645 (at 723):

Lord Reid in Madzimbamuto v


Lardner-Burke [1969]

It is often said that it would be


unconstitutional for the United Kingdom
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.

Parliamentary Sovereignty and the


Courts

The doctrine needs to take into account


political realities and new developments
today, it is seen as a general rule rather
than absolute one
Consideration for so-called constitutional
statutes undermined the doctrine
The doctrine of parliamentary sovereignty is
judge-made, it is up to the judges to adapt
it to changing political and historical
circumstances

Jackson Decision
in

Jackson decision
Lord Hope was critical of parliamentary

sovereignty :
Our constitution is dominated by the sovereignty
of Parliament. But Parliamentary sovereignty is no
longer, if it ever was, absolute. It is no longer
right to say that its freedom to legislate admits of
no qualification whatever. Step by step, gradually
but surely, the English principle of the absolute
legislative sovereignty of Parliament which Dicey
derived from Coke and Blackstone is being
qualified.

Jackson Decision

Lord Hope also said:


The rule of law enforced by the courts
is the ultimate controlling factor on
which our constitution is based.
And he added:
Parliamentary sovereignty is an
empty principle if legislation is passed
which is so absurd or so unacceptable
that the populace at large refused to
recognise it as law.

Jackson Decision

Lord Hope also said:


The rule of law enforced by the courts is the
ultimate controlling factor on which our
constitution is based.
And he added:
Parliamentary sovereignty is an empty
principle if legislation is passed which is so
absurd or so
unacceptable that the populace at large
refused to recognise it as law.

Constraints on parliamentary
powers

Membership in the EU

Human Rights Act 1998

Devolution

Sovereignty and the EU

U K and the International Treaties: Dualist


country : International Treaties binding on
the State in international law only. They do
not create legal obligations enforceable in
the domestic system either between
individuals or against the State.
Problem with the EC membership: the UK
system needed to accept major EC
principles : supremacy of EC law, direct
applicability, direct effect.

Sovereignty and the EU


Broad executive, legislative and fiscal
powers are vested in the organs of the
Community
( exclusive competence: powers conferred
on Community: only EC/EU can legislate in
this areas)

Council of Ministers makes law

ECJ applies and enforces Community law


(binding on the Member States)

Membership within the EU and


parliamentary sovereignty

Supremacy of Community law (Van den en Loos


[1963], Costa v ENEL [1964] ECJ: by creating a

community of unlimited duration, having its own institutions,


its own personality, its own legal capacity and capacity of
representation real powers stemming from a limitation of
sovereignty or transfer of powers from the states to the
Community, the Member States have limited their sovereign
rights and have thus created a body of law which binds both
their nationals and themselves

Direct effect of some forms of Community law strain on the traditional doctrine

Member State liability for Acts of Parliament that


are inconsistent with Community law

Parliamentary Sovereignty and the


EU

The Community legal order is


inconsistent with the sovereignty of
Parliament.

No person or body is recognised by


the law of England as having a right
to override or set aside the
legislation of Parliament Dicey

The European Communities Act


1972

Section 2(1) gives effect to all rules of


Community law
Section 2(4) of the ECA 1972:
Any enactment passed or to be passed
shall be construed and shall have effect
subject to the foregoing provisions of
this section
What about the doctrine of implied
repeal?

The European Communities Act


1972

Community law is superior to any Act


of Parliament whenever enacted

ECA can be repealed expressly

However, what is the position where


an Act of Parliament clashes with
Community law?

Parliamentary Sovereignty and the


EC Law

a voluntary surrender of Parliaments


legislative power in areas falling
within competence of EC.
CA in Macarthys Ltd v Smith[1979] 3
ALL ER 325.. If the ECJ adjudged a
statute to be incompatible with
directly effective Community Law the
European law will prevail over that
municipal legislation.

Factortame and sovereignty

Factortame I [1991] 1 A.C. 603 Interim relief


available against operation of an Act of
Parliament
Factortame II [1991] ECR 1-4586 Was the
Merchant Shipping Act 1988 contrary to
Community law?
Factortame III [1996] ECR 1-1034 Was the
British government liable to pay
compensation?
Factortame IV decisions by English courts
on the breach question [2000] EULR 40

Sovereignty and the Human Rights


Act

Doctrine of Parliamentary Sovereignty


has long been the main obstacle

Strasbourg decisions had an impact on


the development of the common law
See Osman v UK case 1998 29 EHRR,
245

Follow-up task
Could you please read the case
stated below and reflect on
implications arising from the HRA and
their impact on the doctrine of
Parliamentary Sovereignty?
Barret v Enfield LBC 1999 3 ALL ER
193

Parliamentary Sovereignty and the


Human Rights Act 1998
A new interpretative duty for the judges
(s.3) (HRA does not attempt to bind a
future Parliament but imposes duty on
judges to interpret so far as possible to do
so in compatibility with Convention rights.
Subordinate legislation may be quashed if
incompatible
Declaration of incompatibility (s. 4)
Alconbury case [2001, HRLR 2]

Parliamentary Sovereignty and the


Human Rights Act

(1) A new strong interpretative duty


(2) subordinate legislation may be quashed if
incompatible
(3) declarations of incompatibility
(4) new ground of review
(5) Strasbourg case law to be taken into
account
(6) Parliament is not bound by the HRA but
HRA is politically entrenched and cannot be
impliedly repealed.

Devolution and Parliamentary


Sovereignty

Law-making powers to the Scottish


Parliament

Impact on Westminster sovereignty:


Westminster retains full capacity to repeal
the Scotland Act
Westminster may still legislate for Scotland
Scottish Parliament may amend
Westminster Acts within its competence

Summarising

European Community Act goes furthest


Enables the court to decide whether an Act
of Parliament complies with Community law

Human Rights Act has given judges


interpretative tools

Scotland Act: new powers for Scottish


Parliament

Conclusion

Parliamentary sovereignty remains


essential for the British legal system
The concept is constantly evolving
The courts formulated and
articulated the doctrine, it is up to
them to restate the principle in
response to new political
circumstances

Further Reading

Elliott, M. Parliamentary sovereignty


under pressure (2004), International
Journal of Constitutional Law, 2(3)
545
McLean, I. and McMillan, A. Professor
Diceys contradictions, 2007 P.L.435