PUBLIC LAW WEEK 2

Parliamentary sovereignty

What is Parliament
• Bicameral legislature: A legislature made up of two houses: a lower house and an
upper house.
• Unicameral legislature: A legislature made up of one house only.
• Westminster is a bicameral legislature.
• Lower House: House of Commons
• Upper House: House of Lords
• House of Commons: Elected (650 MPs)
• House of Lords: Unelected (approx. 800 peers)

The House of Lords

• Consists of approx. 800 peers.
• Life Peers (85% of all peers): conferred by the Queen under the Life Peerages Act
1958, on the recommendation of the Prime Minister.
• Most are political peers: their names have been put forward to the Prime
Minister by leaders of the political parties.
• Crossbenchers: no political affiliation. Appointed in practice, appointed by the
independent House of Lords Appointments Commission.
• 91 Hereditary Peers: These are inherited. They are passed down to the eldest heir.
• Until the House of Lords Act 1999, there were over 700 such peers and they
dominated the House of Lords.
• 25 Church of England Bishops and Archbishops
27% of peers are women and 5.4% are BAME
83% are more than 60 years old

AV Dicey
• “the right to make or unmake any law whatever”“parliament means…the King, the
HoL and the HoC; these three bodies acting together may be aptly describes as the
‘King in Parliament’” — introduction to the Study of the Law of the Constitution

Origins
• The doctrine, in its orthodox Diceyan form, pays no heed to the composition of
Parliament or its internal proceedings.
• The doctrine is not concerned with whether the Commons is actually
representative of the electorate or whether the balance between the Lords
and Commons is politically acceptable.
• From where does parliamentary sovereignty originate?
• No entrenched constitutional document therefore it does not originate from
this.
• Does not originate from statute. — Jennings, The Law and the Constitution
(4th ed 1952) 149.
o Note the paradox were this to be the case
 • The common law?
o But if sovereignty emerges from the courts, does this mean that the
courts are, in some way, superior to Parliament?

The Origins of Parliamentary Sovereignty: A Democratic

Foundation?

• Claim: Parliament is the dominant force in the UK Constitution because its

superior democratic credentials means that it should occupy this position.
• HOWEVER, the doctrine of parliamentary sovereignty existed long before
Parliament had any meaningful democratic basis.
o Representation of the People Act 1969: extended the franchise to
those over the age of 18. (Prior to this, only those over the age of 21
could vote).
o Representation of the People Act 1928: Gave all women over 21 the
same entitlement to vote as men.
o Representation of the People Act 1918: abolished nearly all property
requirements for men over the age of 21 and granted the right to
women over the age of 30 the right to vote subject to property
restrictions.
o Representation of the People Act 1867 and 1884: Amended property
owning restrictions regarding entitlement to vote. (All women and
40% of males were still unable to vote).
o Roman Catholic Relief Act 1829: Removed many of the restrictions on
Catholic entitlement to vote; however, it simultaneously increased
property restrictions.
o Doctrine of parliamentary sovereignty applied to the Imperial
Parliament– Parliament’s name when it passed legislation for British
colonies during the British empire. No ‘subject’ of a colony had
representation at Westminster.

Democracy legitimates Parliament’s continuing sovereignty; however, it cannot explain

the origins of the doctrine

Current issues with the democratic basis of Parliament

“Parliament means… the King, the House of Lords, and the House of Commons” — AV
Dicey
• The King (Monarch): Unelected; however, powers neutralised through convention.
• The House of Lords: Unelected. Appointed basis mostly since the House of Lords Act
1999 abolished most of the hereditary peers.
• The Commons: Elected through a ‘First Past the Post’ method in single seat
constituencies.
Only one of the 3 components of the Crown-in-Parliament is democratically elected

How is the FPTP method of voting undemocratic?

 • Representatives can get elected with small amounts of public support, as the size of
the winning margin is irrelevant: what matters is only that they get more votes than
other candidates
• FPTP encourages tactical voting, as voters often vote not for the candidate they most
prefer, but against the candidate they most dislike
• FPTP is regarded as wasteful, as votes cast in a constituency for losing candidates, or
for the winning candidate above the level they need to win that seat, count for
nothing
• FPTP can severely restrict voter choice. Parties are not homogenous and do not
speak with one unified voice. Parties are more coalitions of many different
viewpoints. If the preferred-party candidate in a constituency has views with which a
voter doesn’t agree, he or she doesn’t have a means of expressing that at the ballot
box
• Rather than allocating seats in line with actual support, FPTP rewards parties with
what is often termed ‘lumpy’ support; that is, with just enough votes to win in each
particular area. With smaller parties, this works in favour of those with centralised
support
• With relatively small constituency sizes, the way boundaries are drawn can have
important effects on the election result
• Having small constituencies often leads to a proliferation of safe seats, where the
same party is all but guaranteed re-election at each election. This not only effectively
disenfranchises a region’s voters, but it leads to these areas being ignored when it
comes to framing policy
• If large areas of the country are effectively electoral deserts for any particular party,
not only is the area ignored by that party, but also ambitious politicians from the
area will have to move away from their locality if they aspire to have influence within
their party
• Because FPTP restricts a constituency’s choice of candidates, the representation of
minorities and women suffers, as the ‘safest’ looking candidate is the one most likely
to be offered the chance to stand for election
• Although encouraging two-party politics can be advantageous, in a multi-party
culture, third parties with significant support can often be greatly disadvantaged

Safe/Marginal Seats
• In 2017 223/650 (34%) of seats had a winning margin of <20%

Monarch V Parliament
• Central legal question of the Civil War ... “Whether the King was above the law
(as the divine rights theory so beloved by the Stuarts would suggest) or whether
the law was above the King and able to impose enforceable limits upon him.” – E
Wicks, The Evolution of a Constitution: Eight Key Moments in British
Constitutional History (Hart Publishing, 2006) 19.
• Prior to the “Glorious” Revolution, the monarch claimed to be able to:
• Legislate by way of proclamation;
• Levy taxation without parliamentary approval;
• Use prerogative powers to unilaterally suspend laws.
• Bill of Rights 1689; Act of Settlement 1701
Origins
Bill of Rights 1689: Key Features
• Monarch may not suspend or execute laws without the consent of Parliament.
• Unlawful for the monarch to use the prerogative to levy taxes.
• Monarch cannot raise an army without the consent of Parliament.
• Guaranteed free elections to Parliament.
• Protection of freedom of speech for members of Parliament.
• Required that Parliament meet frequently.
Act of Settlement 1701: Key features
• Stated that the Crown pass to the descendants of Princess Sophia of Hanover.
• Stated that future monarchs be of the established Church of England.
• Mechanisms for judicial independence.
• Held that a Royal pardon cannot serve as a defence to parliamentary impeachment.
Parliament emerges as victor in the struggle against the Crown

Parliamentary Sovereignty has implications for the UK’s approach to international law
• “For us, an Act of Parliament duly passed by the Lords and Commons and assented
toby the King, is supreme, and we are bound to give effect to its terms” —
Mortensen vPeters (1906)14 Scots LTR 227 [High Court of Justiciary, Scotland]
• Parliament therefore can legislate contrary to international law
• The UK takes a ‘dualist’ approach to international law; i.e. an international
agreement is not binding in domestic law until Parliament incorporates it

Aspects of Dicey’s Conception of Parliamentary Sovereignty: The Positive

Aspect
• Positive Aspect: That Parliament has the right to make or unmake any law
whatsoever. There are no legal restraints on what laws Parliament can or cannot
enact.
“If a legislature decided that all blue-eyed babies should be murdered, the preservation of
blue-eyed babies would be illegal…” (AV Dicey)
• Negative Aspect: That no person or body is recognised by the law of England as
having the right to override or set aside the legislation of Parliament.
• Theory of Continuing Sovereignty: No Parliament can be bound by another
Parliament.
• Is this not itself a limit on Parliamentary Sovereignty?

Unpacking the traditional doctrine

• The lack of legal constraints on Parliament
• ‘"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.’
—Madzimbamuto v Lardner-Burke [1969] 1 AC 645,723 (Lord Reid)
Constraints therefore are political, rather than legal
“If a legislature decided that all blue-eyed babies should be murdered, the preservation of
blue-eyed babies would be illegal…but legislators must go mad before they could pass such
a law, and subjects be idiotic before they could submit to it.” — Sir Leslie Stephen
Distinction between ‘legal sovereignty’ and ‘political sovereignty’.

Can Parliament bind itself

• Theory of continuing sovereignty: Each Parliament is created anew with the same
powers as the previous Parliament – Diceyan/ Orthodox Theory
• Lex posterior derogate priori (the later statute supersedes the older
statute).
V
• Self-Embracing Sovereignty: Parliament can place some limitations on itself.
Parliament may find itself bound to adhere to previous enactments regarding the
manner in which legislation is enacted and the form that such legislation might take.
• Because parliament can change the rules that affect itself, parliament’s
sovereignty embraces itself; i.e. it is self-embracing.

Evidence of Continuing Sovereignty being upheld:

1. Ellen Street Estates v Minister of Health [1934] 1 KB 590, 597
• “If in a subsequent Act, Parliament chooses to make plain that an earlier statute
is being to some extent repealed, effect must be given to that intention just
because it is the will of the legislature.”– Maugham LJ
• Housing Act 1925 prevailed over the Acquisition of Land Act 1919

2. Dean of Ely v Bliss (1842) 5 Beav 574, 582

• “If two inconsistent Acts be passed at different times, the last must be obeyed,
and if obedience cannot be observed without derogating from the first, it is the
first which must give way...Every Act is made either for the purpose of making a
change in the law, or for the purpose of better declaring the law, and its
operation is not to be impeded by the mere fact that it is inconsistent with some
previous enactment.” – Lord Langdale

Self-Embracing Sovereignty Theory

• idea that Parliament can place some limitations on the use of its own powers
• The power to change law includes the power to change law affecting Parliament
itself (self-embracing

A. Procedural changes to how (the manner) its power is exercised, rather than limits on
what its power can do
• E.g. a statutory requirement that a policy area requires a referendum before
effective legislation on that topic
• Section 1 Northern Ireland Act 1998: It is hereby declared that Northern Ireland
in its entirety remains part of the United Kingdom and shall not cease to be so
without the consent of a majority of the people of Northern Ireland voting in a
poll held for the purposes of this section...

B. Limitations on the form on which legislation ought to take

• i.e. that a particular formula of words is required in order to repeal a statutory
measure
• Section 33(1) Canadian Charter of Rights and Freedoms (The Notwithstanding
Clause): Parliament or the legislature of a province may expressly declare in an
Act of Parliament or of the legislature... that the Act or Provision thereof shall
operate notwithstanding certain of the substantive protections afforded by the
Charter

Example:
AG for New South Wales v Trethowen [1932] AC 526 – Australian Case
• Legislature of New South Wales enacted legislation in 1929 stating that any future bill
which proposed to abolish the Legislative Council (upper house of NSW parliament)
would not be granted royal assent unless and until a referendum was held
• 1930: General Election and Legislature sought to repeal the 1929 Act and abolish the

Legislative Council without a referendum

• 1929 Act prevailed
Can Parliament redesign itself?
Binding itself examples — referenda or supermajorities
Redesign through legislation perhaps to allow ease of function

Parliament Act 1911

• prior to Act, HoL had substantial powers to delay or reject legislation proposal
from HoC a tumultuous issue at the time was Irish Home Rule hung parliament
was common 1870s minority liberal government were heavily dependent on Irish
nationalists (who favoured home rule) HoL (who was heavily conservative)
blocked a motion for Home Rule it was apparent that the HoL was largely
conservative and anti-home rule whereas the HoC was becoming more
progressive and democratic
• Trigger — 1909 People’s Budget passed by HoC…facilitating money bill to fund
this was rejected by HoL (contradicting democratic theory that financial
bills/power of the purse should be decided by accountable and elective bodies)
• Liberals threatened to get King’s permission to pack out the HoL with liberalsHoL
gave in and agreed to the passing of the PA191

Feautures of PA1911
• HoL power to delay money bills limited to one month
• 2. power to veto public bills was removed and replaced with a power to delay for
two
• years (reduced to 1 year with PA1949)
• 3. maximum life of Parliament reduced from 7 to 5 years
Acts passed under PA1911
• Welsh Church Act 1914
• Government of Ireland Act 1914 — 3rd Home Rule Bill (didn't come into effect
WW1)
• Parliament Act 1949

Acts passed under the PA1911 as amended

• War Crimes Act 1991
• European Parliamentary Elections Act 1999
• Sexual Offences (Amendment) Act 2000
• Hunting Act 2004

jackson v Attorney General 2006

Facts:
• Appellants challenged the legal validity of the Hunting Act 2004 which makes it
an offence to hunt a wild mammal with dogs save in limited circumstances 2003
Bill passed the Commons with a majority of 208 but rejected by the Lords by a
majority of 212 in October 2003Identical bill passed by the Commons in 2003
was reintroduced in September 2004; rejected by the Lords in November 200
Lords and Commons unable to come to an agreement before the end of the
Parliamentary year so Speaker of the House of Commons, Michael Martin,
invoked the Parliament Acts 1911 and 1949. Hunting Act 2004 enacted without
approval of the House of Lords

Issue:
• Appellants challenged the Legality of the Parliament Act 1949 which was itself
enacted using the procedure established by the Parliament Act 1911“...the real
question turns on the validity of the 1949 Act and that in turn depends on the
true effect of the 1911 Act.”– Lord Bingham

Jackson v AG Judgment
Question — Did the courts even have jurisdiction in the first place to hear a challenge to the
validity of legislation?
• Pickin v British Railway Board [1974] AC 765: “the courts in this country have no
power to declare enacted law to be invalid”. (Lord Simon at p798).
• Pickin sought to inquire into the internal workings of Parliament and to argue that
Parliament had been ‘misled’ and proceeded on a false basis. Illegitimate for a court
to do this.
• Jackson concerned a question that Parliament itself could not decide– namely,
whether these Acts are ‘enacted law’. Therefore, courts should resolve it.
• Pickin distinguished; court did have jurisdiction to hear the case.

Held:
• Attorney General’s submission endorsed — Parliament Act 1911 did not have any
limitations preventing it from being used to enact the 1949 Act
• 1911 Act had been validly amended by the 1949 Act and therefore all subsequent
Acts enacted in accordance with the procedure laid out in the 1949 Act were valid
• Hunting Act 2004 upheld
• Note: Court of Appeal distinction of ‘fundamental constitutional changes’ that could
not be implemented using the Parliament Acts rejected
• But 7 judges did suggest that the Parliament Acts procedure could not be used to
pass a statute extending the life of Parliament.

Jackson contains a number of obiter statements from the various judges suggesting that
there may be substantive limits to what Parliament can do. HOWEVER, THESE ARE NOT
BINDING!!!

Recent Obiter Dicta Remarks on Substantive Limits to Parliamentary Sovereignty:

R (on the application of Privacy International) v Investigatory Powers Tribunal [2019]
• whether s68(7) of the Regulation of Investigatory Powers Act 2000 prevented judicial
review of the decisions of the Investigatory Powers Tribunal– a so-called ‘ouster
clause.’
• Lord Carnwath, (Lady Hale and Lord Kerr in agreement):
“I see a strong case for holding that, consistently with the rule of law, binding effect
cannot be given to a clause which purports wholly to exclude the supervisory
jurisdiction of the High Court to review a decision of an inferior court or tribunal,
whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of
the words used, it should remain ultimately a matter for the court to determine the
extent to which such a clause should be upheld, having regard to its purpose and
statutory context, and the nature and importance of the legal issue in question; and
to determine the level of scrutiny required by the rule of law.” [144]

The Supremacy of EU Law: Challenges to Parliamentary Sovereignty

• Dicey would say that an Act of Parliament is supreme — “…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 set aside the legislation of Parliament.”
• However, EU Law claims primacy over domestic law in all Member States
• “... the Community constitutes a new legal order of international law for the benefit
of which the states have limited their sovereign rights, albeit within limited fields,
and the subjects of which comprise not only member states but also their nationals.
Independently of the legislation of member states, Community law therefore not
only imposes obligations on individuals, but is also intended to confer upon them
rights which part of their legal heritage.” — Van Gend en Loos (1962

Public Law
• “The transfer by the states from their domestic legal system to the Community legal
system of the rights and obligations arising under the Treaty carries with it a
permanent limitation of their sovereign rights, against which a subsequent unilateral
act incompatible with the concept of the Community cannot prevail” — Costa v ENEL
• Without the principle of the supremacy of EU law, member states could frustrate the
operation of EU law, thus defeating the purpose of the Union in the first instance
Factortame Litigation [1990, 1991, 1992]
• Facts — Dispute regarding (what is now) Article 49 Treaty on the Functioning of the
European Union (TFEU) which entitles EU nationals to establish businesses in any EU
state
• Parliament enacted the Merchant Shipping Act 1988 to protect the British fishing
industry by preventing foreign nationals from exploiting British fish stocks
• Court of Justice of the EU (CJEU) ruled that nationality restrictions imposed by the
Merchant Shipping Act 1988 were incompatible with Article 49; however, this
judgment would take some years before being delivered
• In the meantime, the claimants asked the courts to issue an injunction that would
disapply the Merchant Shipping Act 1988 until the case was heard in full
• Was the MSA 1988 incompatible with EU law?
• ECJ said yes and believed they had the power to put in place interim
provisions, thus suspending the operation of a Parliament Act
• Parliamentary sovereignty would appear to prevent the setting aside– even
temporarily– of primary legislation

Outcome
“...whatever limitation of its sovereignty Parliament accepted when it enacted the European
Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has
always been clear that it was the duty of a United Kingdom court, when delivering final
judgment, to override any rule of national law found to be in conflict with any directly
enforceable rule of Community law. Similarly, when decisions of the European Court of
Justice have exposed areas of United Kingdom statute law which failed to implement
Council
directives, Parliament has always loyally accepted the obligation to make appropriate and
prompt amendments. Thus there is nothing in any way novel in according supremacy to
rules of Community law in those areas to which they apply and to insist that, in the
protection of rights under Community law, national courts must not be inhibited by rules of
national law from granting interim relief in appropriate cases is no more than a logical
recognition of that supremacy” — Factortame (No.2)– Lord Bridge (p 659)

What does Factortame mean for Parliamentary Sovereignty?

• Wade: Factortame was a ‘judicial revolution’. The judges refused to do what the old
constitutional order required of them and instead shifted their allegiance to the EU.
•But this does not align with Lord Bridge’s comments that legislation not some
judge-led revolution was the reason why the Court was disapplying the MSA 1988
• Analysis of parliamentary sovereignty in Factortame is sparse. We must therefore rely
upon academic commentary and subsequent case law and legal developments to
understand its basis and implications furthe

Conclusions
• Parliamentary sovereignty is a deceptively simple idea that belies a number of
complexities, some bordering on paradoxes.
• While the claim made by the Diceyan/Orthodox theory of parliamentary sovereignty
that Parliament can make or unmake any law it likes has not necessarily faced an
insurmountable challenge, Dicey’s second claim that ‘no person or body is
 recognised by the law of England as having a right to set aside the legislation of
Parliament’ must be reappraised in light of Factortame.
• That stated, Parliamentary sovereignty is still the ‘apex norm of the British
constitution’. All major constitutional developments in recent decades, while stress-
testing parliamentary sovereignty, have still not led to its abandonment.
• The self-embracing theory of parliamentary sovereignty may provide a more clearer
understanding of parliamentary sovereignty today than the Diceyan/Orthodox
theory.