Parliamentary Sovereignty
In a
state there must be one ultimate source of legal authority or the supreme law-making
body. In countries with a written constitution such a source of power is the
constitution. UK however is an exception as it does not have a proper codified
constitution and thus the ultimate sovereign authority is the Parliament.
According
to A.V. Dicey, sovereignty is the dominant characteristic of the UK political
institution. There are two types of sovereignty- Legal and Political. Legal
sovereignty derives from the sovereignty of the legislature while political
sovereignty lies with the people. There are two situations in which the legal
sovereignty may be lost- one where the Parliament decides to abolish its
sovereignty and places its residual power under a written constitution; and
second where the judiciary undergoes a revolution stating that it no longer
owes its allegiance to the Parliament.
This
doctrine sets the British constitution apart from the vast majority of other
democratic states. For example, although the legislative body of the U.S
Congress is a law-making body which passes primary legislation, this
legislature does not have unlimited law-making power as it is constitutionally
and legally constrained by the written codified constitution. If the
legislative body were to pass legislation which was inconsistent with the rules
laid down in the codified constitution, it would be subject to judicial review
by the Supreme Court and declared illegal. That is to say the legislation would
be declared to be legally unconstitutional and so invalid. By contrast, In UK,
the parliament can in legal theory pass any law and the legislation which is
enacted is not subject to judicial review by the courts. This is because
Parliament has not historically been constrained by a higher set of legal rules
enshrined in a written constitution. Acts of Parliament could not be tested or
questioned against an overriding codified constitution.
Evolution
of parliamentary sovereignty
Throughout
much of the seventeenth century the Crown and Parliament were in conflict, with
the Crown using the royal prerogative to rule rather than ruling through
Parliament. Abuse of the prerogative by Charles I (reigning from 1625 to 1649)
led to civil war and Charles’ execution along with the abolition of the
monarchy. Following a decade of republican rule under Oliver Cromwell, the
monarchy was restored in 1660. Further conflict followed over religion, with
James II being a Roman Catholic and placing Catholics in public office. The fear that James might be succeeded by a
Catholic heir who would restore the links with Rome caused parliamentarians to
invite William and Mary of Orange to overthrow James. With knowledge of
William’s imminent arrival, James II fled the country. The revolution of 1688,
during which James II fled to France and William of Orange and his wife Mary
were invited to assume the Crown, concluded the long running conflict. William
and Mary came to the throne but the power of the monarch was curtailed. It was
subject to conditions which ensured that Parliament had ultimate sovereignty
and that the royal prerogative was subject to that supremacy. The Bill of
Rights 1689, the settlement between Crown and Parliament, ensured Parliament’s
supremacy.
Sovereignty
as a common law concept
Parliamentary
sovereignty is a common law doctrine. It is the courts that have for centuries
in their judgments accepted that the Queen in Parliament can pass any law and
that they don’t have the constitutional power to review or question Acts of
Parliament and that the judicial function is limited to interpreting
legislation in order to ascertain the intention of Parliament in passing it. In
terms of the origin of the principle of parliamentary sovereignty Lord Steyn
commented ‘It is the construct of the common law. The judges created this
principle’
Political
and legal sovereignty
The
ultimate authority within a state is both political and legal. From a political
perspective, sovereignty lies not in a law-making body but with the people.
Legal sovereignty is therefore ultimately dependent upon the acceptance of its
authority by the people, who if the legislature abuses its trust may overthrow
that authority and replace it.
On
political sovereignty, four broadly similar approaches by Hobbes, Rousseau,
Locke and Paine each discuss the idea of a ‘social contact’.
Thomas
Hobbes offered the most extreme version of the social contract theory, arguing
that man by nature is incapable of regulating his life in peace and harmony
with his fellow man. According to him life is ‘solitary, poor, nasty, brutish
and nasty’ and so in order for there to be civil order, it was necessary for
each man to surrender to state his own sovereignty in exchange for security.
Such surrender was revocable only if the state abused its trust.
According
to Jean- Jacques Rousseau, the citizen enters into a contract with the state
surrendering to the state individual rights in exchange for the protection of
the state. His vision of man is markedly different from that of Thomas Hobbes.
Instead of living in a state of war, men are united in a community of endeavor
to secure the essential provisions of life. For him, sovereignty is nothing
less than the collective will of the people, which is supreme over the
government.
Locke
and Paine adopt the social contract approach but both emphasize that the
transfer of power to government is conditional upon the government protecting
the rights of citizens; power is held on trust and if the trust is broken the
people may reclaim their power.
A.V.
Dicey’s analysis of sovereignty
After
the passage of the Bill of Rights in
1689, William and Mary came to the throne subject to conditions which ensured
Parliament’s sovereignty and the royal prerogative being subject to such
supremacy. In BBC v. Johns, the
court held that no new prerogative can be claimed by the Crown. The classical
definition of Parliamentary Sovereignty has been given by A.V. Dicey in three
parts- Parliament can legislate on any subject matter; it is not bound by its
predecessor nor can bind its successor; and no one including the courts can
challenge the validity of an Act of Parliament.
a. Parliament
– the supreme law-making body – may legislate on any subject matter.
b. No
parliament can be restricted by a predecessor or restrict the power of a future
Parliament.
c. No
body, including a court of law, may question the validity of Acts of
Parliament.
There
is no limit on the subject matter on which the Parliament can legislate.
1. It
can alter the term of its office according to the Septennial Act.
2. It
can alter its powers. The Parliament
Acts of 1911 and 1949 curtailed the powers of the House of Lords, and the House of Lords Act 1999 reduced the
number of hereditary peers in the House of Lords.
3. It
can legislate to alter the succession to the throne under the Settlement Act 1700.
4. Parliament
can grant independence to its dominions. It did so to Zimbabwe under the Zimbabwe Independence Act.
5. It
can make laws retrospectively thereby making an action unlawful which at that
time was lawful. An example of such a category is the War Damages Act 1965.
6. It
can legislate extra territorially- the Aviation
Security Act allows the courts to try hijacking cases irrespective of the
territory and nationality of the hijacker.
7. It
can also give effect to international law within the UK (Human Rights Act 1998).
However,
a challenge to such an aspect is the debate of validity and effectiveness, i.e.
Parliament can make laws on any subject matter it wants to, but out of
political practice would not do so. These are the extra legal or non legal
limits on the Parliament and thus a challenge to the sovereignty of the
Parliament. This was best explained by Lord Reid in Madzimbamuto v. Lardener Burke as ‘it is often aid that it would be
unconstitutional for the UK Parliament to do certain things, meaning that the
political, moral and other reasons against doing them are so strong that most
people would regard it as highly immoral if Parliament did such things. But
that does not mean that it is beyond the power of the Parliament to do such
things. If Parliament wishes to do so, the courts cannot hold such an act
invalid’.
·
Parliament
is not bound by its predecessor nor can bind its successor:
Each
parliament must enjoy the same unlimited power as any parliament before it. No
parliament can enact rules which limit the future parliaments. This limb
requires the most careful analysis. The doctrine of implied repeal states that
when judges are faced with two conflicting statutes, the judges apply the
latest statute and deem the earlier provision to be impliedly repealed. The
judges are thereby giving effect to the latest expression of the Parliament. In
the cases of Vauxhall Estates v.
Liverpool Corporation, and Ellen
Street v. Minister of Health, the earlier act impliedly repealed the
earlier statutes. However, the doctrine does not apply for the constitutional
statutes which are so firmly entrenched that they cannot be repealed impliedly
(Thoburn v. Sunderland).
An
area which poses problems for legislative supremacy is the grants of
independence. S4 of the Westminster Act recognizes the
convention that the UK Parliament would not legislate for the Dominions without
their consent. This has limited the law-making powers of the future
parliaments. However, if the UK Parliament so desires, it can legally revoke
the Statute, but practically speaking it would not (British Coal v. The King).
Furthermore,
attention needs to be given o the Acts of Union with Scotland and Ireland. In
1707, the Act of Union created the
parliament of Great Britain, abolishing the parliaments of England and
Scotland. Many of the provisions were entrenched and not subject to repeal.
This suggests that the Act is then some form of higher law which binds the
future parliaments. In MacCormick v. The
Lord Advocate, MacCormick sought an injunction against the Lord Advocate as
representative of the Crown, preventing the use of the title Queen Elizabeth II
of the UK of Great Britain. The objection was based on historical inaccuracy.
The petition and appeal were dismissed. Lord Cooper stated that there was no
provision in the Act which stated that the parliament of Great Britain was
absolutely sovereign in the sense that parliament should be free to later the
Treaty at will.
Also,
under the Northern Ireland Constitution
Act and Northern Ireland Act 1998, Northern Ireland would not cease to be
part of the UK unless and until a majority of voters should determine
otherwise. This was not binding on the UK Parliament- it could legislate to the
contrary but would not do so as the political implications would be very
strong.
Parliament
may specify particular procedures which must be undertaken to enact
legislation. Any provision related to the procedure but not affecting the
composition of the Parliament may be termed as a manner and form provision.
Such provisions are thus entrenched and are capable of binding the future
parliaments. In AG for New South Wales
v. Trethowan, a statute of the New South Wales repealed an entrenched
provision of the Colonial Validity Act without
holding the required referendum. The manner and form provision were thus
entrenched in that it was imposed on the New South Wales Parliament by the UK
Parliament.
There
have been reforms proposed for the succession to the Crown, namely that the
succession would take place in accordance with birth rather than gender, and
that discrimination against the Roman Catholics would be ended. The Act of Settlement however has a manner
and form provision that any amendment to the Act requires the consent of the
heads of the 15 Commonwealth countries which recognize Queen Elizabeth II as
their head of state. Thus, this has bound the future parliaments too.
·
No
one including the courts can challenge the validity of an Act of Parliament:
According
to the Enrolled Bill Rule, an act will be accepted as valid by the courts if it
passes through the necessary parliamentary stages and receives royal assent.
Regardless of the subject matter it will be upheld by the courts.
In Dr. Bonham’s case, a statute which was
against common sense or reason was controlled by the common law which then
nullified it. However according to Lord Reid in Pickin v. BRB, affirming Edinburgh
v. Wauchope, the Bill of Rights 1689 had established the supremacy of the
Parliament and the idea that statutes which were for instance against the rules
of natural justice has become obsolete. Moreover, the Hunting Act 2004 in the case of Jackson v. Attorney General 2005 was seen as a valid one though it
did nr protect the rights of the hunters- a small minority.
However,
there are non-legal constraints on the Parliament’s powers. Parliament is
elected by the people and no government can afford to ignore Parliament. The
Parliament needs to reflect the political morality within the society otherwise
a government can be brought down if its policies are such that it loses the
confidence of the Commons. Also, government is bound by international
obligations. Parliament can enact laws contrary to UK’s international
obligations but in practice it could not and would not do such a thing.
A
great challenge to this limb of the definite has been by the European Union. UK
joined the EC in 1972 and the ECJ has adopted the view that sovereignty of
Community law must be respected by the member states as all the member states
have surrendered or shared their sovereignty to gain an influence which they
would have been unable to attain on their own.
In UK
the acceptance of community law has been through the European Communities Act 1972. From the ECJ’s perspective,
community law prevails over domestic law and domestic legislatures have no
authority to enact binding legislation which is contrary to community law. From
the domestic perspective however, the picture is not so clear. S2 (1) of the Act states that Community
law shall have direct applicability in UK. Membership of EU raises some complex
questions about UK’s parliamentary supremacy. Article 4.3 of TEU imposes a duty on all member states to comply
with the Community law; secondly once an interpretation is received by the
domestic courts from the ECJ, the interpretation must be given effect. The
individual has thus the right to bring up the case against the state or bodies
which are the emanations of the state and in some circumstances can claim
compensation from the state.
Two
conclusions can then be reached. Firstly, the Parliament of 1972 has bound the
future parliaments, as the statute can be seen to be a constitutional one. x
However, on the other hand, it can be argued that the orthodox view remains
unimpaired as UK voluntarily acceded to the EC and passes the ECA in 1972. The
Act can then be repealed by UK Parliament any time it wants to. Also, in
accordance with Macarthys v. Smith, the
Court of Appeal and the House of Lords endorsed the view that if the Parliament
expressly chose to legislate contrary to Community law, the intention would be
given effect to by the judges. Also, the European
Union Act 2011 has introduced the requirement of a referendum to determine
whether powers to the EU be transferred in the new areas or not. This also has
limited the power of the government and has reinforced parliamentary supremacy.
Moreover,
the Scotland Act, Government of Wales
Act and the Northern Ireland Act 1998, have developed a form of self
government in UK. The devolved bodies are at the will of the Parliament and if
the Parliament so desires it can strike down the whole devolutionary system via
one small enactment. The devolution of Scotland has raised the most complex
issue about the sovereignty of UK Parliament. Scotland has always retained a
strong sense of national and cultural identity and has its own legal system. However,
the Scotland Act makes it quite
clear that the Scottish Parliament unlike the Westminster Parliament is a
limited legislature, and that it cannot make any law which is out of its
legislative competence. The perception of the Scots is that the UK Parliament
should not make laws in the devolved areas without their consent and if it does
so, it would highly likely precipitate a political crisis. The Scottish
Government has proposed to hold a referendum for the independence of Scotland
and the coalition government has preferred to ask a single question from the
electorate, namely whether the people want independence for Scotland or want to
maintain the status quo.
Another
important challenge to the third limb has been the passage of the Human Rights Act in 1998. According to S3, judges are under a duty to
interpret legislation in a manner which is compatible with the ECHR. This means
that the judges are not giving effect to the latest will of the Parliament but
whether the legislation is compatible with the Convention rights or not. This
gives the HRA a special constitutional status and challenges the supremacy of
the Parliament.
However,
if the judges find the provision incompatible with the ECHR, all they can do is
issue a declaration of incompatibility which would not invalidate the provision
but open it to amendment. Also, under S6,
if the public bodies act unlawfully, they are held accountable to the
Parliament, which then reinforces the supremacy of the Parliament. Thus, it is felt that the HRA has maintained
parliamentary supremacy but has also empowered the judges.
In
conclusion, in UK the ultimate sovereignty lies with the Parliament which is
ultimately dependent upon the political sovereignty of the people. Each of the
principles of A.V. Dicey is subject to qualifications, but at the end of the
day, the UK Parliament has been able to retain its supremacy after all.
Detail
discussions related to Dicey’s view point on Parliamentary Sovereignty
A. The power to legislate (first
point)
It is
important to appreciate that there is a significant difference between what
Parliament can do legally and what it can do in practice. For example, if
parliament confers independence upon a former colony, in strict legal theory,
Parliament can also remove that independence. However, a unilaterally unwanted
attempt to regain sovereign power would be ineffective within the newly
independent- and sovereign state. As another example, in legal theory
Parliament could pass a law stating that the right to own private property is
abolished. According to Dicey, such an Act – once passed by the Commons and
Lords and given the Royal Assent – would be legally valid and the courts would
not be able to invalidate it. However, as a matter of political practice (if not
legal practice), Parliament would never pass such a law. And, if it were so
unwise as to do so, the law would be ineffective. The classic examples of
Parliament’s untrammeled legislative powers are those offered by Sir Ivor
Jennings (1959): parliament can legislate to ban smoking on the streets of
Paris; Parliament can legally make a man into a woman; and Sir Leslie Stephens
(1882): parliament could legislate to have blue eyed babies put to death. These
examples illustrate what is theoretically possible and what is practically
possible. The limits under which
Parliament operates are those imposed by the democratic process: they are
non-legal or extra – legal, limits.
However,
Parliament’s power remains theoretically absolute. Examples of the wide-ranging
nature of Parliament’s law making include Acts of Parliament that extend beyond
the territory of the United Kingdom (Parliament may legislate with extra –
territorial effect). An example of this is the Aviation Security Act 1982,
which extends the jurisdiction of the courts to try hijacking cases, with
limited exceptions, irrespective of the territory in which the offence occurred
and irrespective of the nationality of the hijacker. The War Crimes Act 1991
has extra territorial effect as it concerns murder, manslaughter or culpable
homicide committed by a British citizen (or a resident in the UK) in Germany or
an area under German occupation between 1939 -45.
Parliament
can choose to lengthen or shorten the life of a Parliament. For example, the
Septennial Act 1715 stipulated that the maximum length of a parliamentary term
was seven years (it had previously been three years under the Triennial Act
1694). Later, sec 7 of Parliament Act 1911 reduced this period to five years.
Today, the Fixed Term Parliament Act 2011 provides that there will be five
years in between general elections.
Parliament
can also legislate with retrospective effect, thereby making an action unlawful
which at the time was lawful. Retrospective laws generally are objectionable
because, of course, the individual has no control over their past conduct.
According to Willes J when law is introduced for the first time, it should deal
with the future acts and ought not to change the character of past transactions
carried on upon the faith of the then existing law. An example of
retrospectivity is Burma Oil Company v
Lord Advocate (1965). In 1942, British troops had destroyed oil
installations in Rangoon, with the intention of preventing them from falling
into the hands of the Japanese. The British government made an ex gratia
payment of some 4 million pounds to the company. Burma Oil sued the government
for some 31 million pounds in compensation. House of Lords held that the
compensation was payable by the Crown for the destruction of property caused by
the exercise of the prerogative power in relation to war. The government
immediately introduced into parliament the War Damage Bill 1965 to nullify the
effect of the decision.
Parliament
can also legislate to alter its own powers, as for example with the parliament
Acts 1911 and 1949 which reduced the powers of the House of Lords in relation
to legislation, and the House of Lords Act 1999 which removed most of the
hereditary peers from the Upper House.
The
supremacy of Parliament is demonstrated when examining the status of
international law within the UK. The fundamental rule remains that
international law cannot legally effect within the law of the UK unless and
until it is brought into domestic law by an Act of the sovereign Parliament.
For this reason, for example, it was necessary to enact the European
Communities Act 1972 to give effect to Community law.
Extra-
legal/ non legal limits on Parliament Supremacy
1. Political
restraints: Although Parliament can, in legal theory, pass any law that it
chooses, this does not necessarily mean that Parliament will pass any such law.
This is because there may be an absence of legal limitations on Parliament;
there are political restraints on it. Political sovereignty rests with the
people as the people elect Parliament and so the electorate acts as a political
restraint on the laws that Parliament passes. So, if the Parliament passes a
highly controversial, objectionable and draconian law, at the following general
election these parliamentarians would have to face the consequences.
2. Political
entrenchment: According to Dicey legislation cannot be legally entrenched and
protected from repeal, it may well be the case that certain Acts of Parliament
(owing to their content and political importance) can become politically
entrenched in the sense that the Parliament may lack the political will to
repeal them. For example: The Human Rights Act 1998.
3. Practical
restraints: In 1931 Parliament passes the Statute of Westminster which stated
in section 4, that no UK statute passed after the commencement of this Act
shall extend to the law of a Dominion (in 1931 these Dominions included
Australia, Canada, New Zealand), unless the Dominion in question requested and
consented to that legislation. In strict legal theory, however, the UK
parliament could repeal this provision and legislate for one of the above
Dominions against their consent. The legislation would be valid but
ineffective.
4. Constitutional
conventions: Parliament can choose to legislate contrary to a constitutional
convention. For example, since the establishment of the Scotland Act 1998 a
convention has been established to the effect that the UK Parliament will not
legislate in the area of a devolved matter for Scotland without the consent of
the Scottish Parliament (Sewel convention). In legal theory, Parliament could
choose to ignore it and proceed to pass legislation for Scotland in the absence
of the consent of the Scottish Parliament. The political ramifications of such
action, however, would inevitably prevent Parliament from passing such
legislation. Even if the Parliament passes such an Act, since constitutional
conventions do not legally bind the parliament, it would have no effect.
B. No
Parliament can be bound by its predecessor not bind its successor (2nd
Point)
This
principle ensures that each new Parliament retains its sovereign power to pass
whatever legislation is deemed necessary at the time. If one Parliament could
tie the hands of its successor, the later Parliament would not enjoy full
legislative power to pass any legislation that it chooses, as it would be
restrained by this former Parliament. Today, this principle can be justified on
the basis that each new parliament should enjoy full sovereign legislative
power as each new Parliament represents the latest will of the people as
reflected in the latest general election. It also means that laws can adapt to
new developments and that one Parliament does not become a prisoner of the
views of a previous Parliament.
The
principle that no parliament can enact laws which limit future parliaments is
achieved through the twin doctrines of Implied Repeal and Express Repeal.
Implied
Repeal
The
doctrine of implied repeal provides the mechanism by which the judges gives
effect to the rule against parliament being bound by previous parliaments or
being able to bind subsequent parliaments, and thereby guarantees contemporary
sovereignty. Parliament may, repeal any previous law by expressly declaring
that law to be repealed. The position of the judiciary is then clear; they must
give effect to the latest expression of sovereign will and judges are not free
to apply earlier statute. The position may not always be so clear cut. Parliament may pass a statute which while not
expressly repealing an earlier Act, is inconsistent with it. When the judges
are faced with two apparently conflicting statutes, the doctrine of implied
repeal will come into play, the judges applying the latest statues in time and
deeming the earlier provisions to be impliedly repealed.
Two
cases which illustrate the principle of implied repeal are: Vauxhall Estates Ltd v Liverpool
Corporation (1932) and Ellen Street
Estates Ltd v Minister of Health (1934).
Vauxhall
Estates Ltd v Liverpool Corporation (1932): Sec 2 of the Acquisition of Land
(Assessment of Compensation) Act 1919 provided for the assessment of
compensation in respect of land acquired compulsorily by a government
department or local authority. Sec 7 of the Act provided that the provisions of
the Act or order by which the land is authorized to be acquired shall have
effect and any provision inconsistent with this Act shall cease to have effect.
In 1925, Sec 46 of the Housing Act provided for the assessment of such
compensation for land acquired compulsorily on a less generous basis. The
Corporation of Liverpool proposed a scheme under the 1925 Act for the
improvement of Liverpool which included lands owned by Vauxhall Estates Ltd who
contended that the amount of compensation should be assessed under sec 2 of the
1919 Act. This was because the assessment of compensation under the 1925 Act
differed materially from the 1919 Act and Sec7 of the 1919 Act rendered the
later 1925 Act of no effect. Counsel for Vauxhall had argued that sec7 of the
1919 Act prevented the implied repeal of its provisions.
The
Divisional court held that the 1925 Act impliedly repealed the earlier Act of
1919, to the extent that it was inconsistent. In Ellen Street Estates case, the
Court of Appeal again ruled that the 1919 Act must give way to the 1925
legislation.
However,
to counter argue this point, statues like (e.g. Human Rights Act 1998, European
Communities Act 1972) are constitutional statutes and the doctrine of implied
repeal does not apply to them and so they need to be expressly repealed.
Manner
and Form Theory
Parliament,
in the exercise of its sovereign power, may specify particular procedures which
must be undertaken to enact legislation. The essential question to be asked is
whether such provisions, are capable of binding a future parliament. A seminal case illustrating manner and form
theory is that of Attorney General for New South Wales v Trethowan (1932). In
this case the issue was the extent of legislative freedom that had been
conferred on colonial legislature by the Westminster parliament. The first relevant
Act is the Colonial Laws Validity Act 1865, an Act of the United Kingdom
Parliament which limited the powers of subordinate colonial legislatures. The
powers of the New South Wales legislature were laid down in the Constitution
Acts 1902 -1929. In 1929 a new constitution Act was passed which provided for
special procedures to be followed (a) in any attempt by a future Parliament to
abolish the Upper House and (b) in repealing the 1929 Act. Following a change
in the government, the new government attempted to pass an Act ignoring the
requirements of the 1929 Act. The central question is, did that new parliament
have the power to act in defiance of the earlier Act? The answer is no: the 1929 Act was not
repealed, and the earlier 1865 Act required that the 1929 Act be followed.
Harris
v The Minister of the Interior (1952) and Bribery Commissioner v Ranasinghe
(1965) --- all these cases demonstrate one fundamental principle: that
legislative bodies do not necessarily enjoy full sovereign power, and that some
form of ‘higher law’ may control their powers. In each of these cases, the
powers of the legislatures of New South Wales, South Africa and Ceylon (Sri
Lanka) had been established under an Act of the sovereign United Kingdom
Parliament. That being so, the legislative bodies had to comply with the
constitutional laws in force, and failure to do so would give the courts the
jurisdiction to declare a legislative act void.
Arguments
have been put forward to the effect that Parliament can bind its successors, by
setting out the ‘manner and form’ provisions which must be followed.
More
recent examples of Parliament laying down procedural requirements for
legislation are found in legislation relating to the status of Northern Ireland
within the United Kingdom. In the Northern Ireland 1998, sec 1 provides that
Northern Ireland remains part of the United Kingdom and that it shall not cease
to do so without the consent of the majority of the people of Northern Ireland
expressed through the referendum. Paradoxically, however, this does not limit
Parliament’s power to legislate on this subject without a referendum, but it
would be political suicide for any government to attempt to persuade Parliament
to do so without holding a referendum. The restriction, therefore, represents a
political but not a legal restraint on what Parliament can do.
Act of
Union 1707
Until
the early 17th century England and Scotland were two entirely independent
kingdoms. This changed dramatically in 1603 on the death of Elizabeth I of
England. Because the Queen had died unmarried and childless, the English crown
passed to the next available heir, her cousin James VI, King of Scotland.
England and Scotland now shared the same monarch under what was known as a
union of the crowns.
James was not satisfied with
this arrangement. He wanted a complete or perfect union that brought the two
kingdoms into a single, enlarged and unified state. A commission of English and
Scottish MPs was set up in October 1604 to consider how a perfect union might
be created. James was quick to grasp that it could not be achieved overnight,
and that only modest steps should be taken at first. But the idea of the
unification of the laws, parliaments and economies of both kingdoms met with
little enthusiasm at Westminster. After a series of negations and deliberations
the Act of Union of 1707 was introduced that
merged England and Scotland into a single state of Great Britain and created a
single Parliament at Westminster.
In McCormick v Lord Advocate (1953) the
action raised by loyal Scottish subjects was to interdict Her Majesty’s
ministers from causing her to be described as ‘Elizabeth II’. The ground of the
argument was that the adoption of such a title was a contravention of the
Treaty of Union of 1707. Since by that Treaty, in its first article, a new
kingdom had been expressly created by amalgamation of two older ones, that the
Treaty must be fundamental law for the new Kingdom and government acts contrary
to its terms could not be valid. Against
the petitioners, Lord Advocate argued that Articles of Union had nothing to do
with Queen’s titles, and that even if some of the articles were fundamental and
unalterable, article I was not among that class. He also argued that
petitioners had no title to sue and explained that the basis on which the
numerals in Royal titles in Great Britain were adopted was by way of
continuation of the numbering of the Kings and Queens either of Scotland or of
England before the Union.
The basic
argument being that the Act provided for the Union of Scotland and England to
be ‘for ever after’. It contained many provisions which were phrased in terms
which suggested the intention that they should be enduring and hence not
subject to amendment or repeal. However, many amendments have been made. It has
been argued that Acts of Parliament that go against any provisions of the Act
of Union are invalid, on the basis that the Act of Union was a constituent Act
----- one prior to and setting conditions under which the newly created
parliament could legitimately act. Can the parliament be bound by its
predecessor?
C. Validity cannot be challenged (3rd
Point)
The
manner in which sovereignty is upheld is through the judicial decisions. In
relation to domestic legislation, two rules are dominant. The first is the
enrolled bill rule which states that, once a Bill has passed through the
requisite parliamentary stages and received the Royal Assent, the courts will
not inquire into the manner in which it was passed – even if allegations are
made that it was improperly passed. The second rule is Implied Repeal (judges
giving effect to the latest will of the Parliament)
In British Railways Board v Pickin (1974):
In 1968 a private Act of Parliament (the British Railways Act 1968) was passed
with the effect of nullifying the effect of an earlier private Act of 1836.The
latter Act established a railway line and provided that if the line should be
abandoned, the lands on which the line was built should vest in the owners of
the adjoining lands. Instead, under s18 of the later 1968 Act, such land would
now vest in the British Railways Board.
Pickin
owned land adjoining a track and instituted an action against the British
Railways Board claiming ownership of the adjoining land to the center line of
the track. The Board argued that under the 1968 Act the land vested in the
Board. In reply, Pickin alleged that the Board had misled the Parliament and
that the 1968 Act was not passed properly. However, it was found that validity
of Acts of Parliament could not be reviewed. Lord Reid stated: 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.
Brief
Background for Jackson v Attorney General (2006)
The powers of the House of Lords are limited by
a combination of law and convention.
The Parliament Acts, although rarely used,
provide a way of solving disagreement between the Commons and the Lords.
Parliament
Acts: background
Until the early years of the
20th century, the House of Lords had the power to veto (stop) legislation.
However, this arrangement
was put under pressure when the House of Lords refused to pass David
Lloyd-George's 'people's budget' of 1909. Eventually, the budget was passed
after a general election in 1910; a second general election was then fought on
the issue of reform of the House of Lords.
Parliament
Act 1911
The result was the
Parliament Act 1911, which removed from the House of Lords the power to veto a
Bill, except one to extend the lifetime of a Parliament. Instead, the Lords
could delay a Bill by up to two years. The Act also reduced the maximum
lifespan of a Parliament from seven years to five years.
Parliament
Act 1949
The Parliament Act 1949
further reduced the Lords' delaying powers to one year.
The Parliament Acts define
the powers of the Lords in relation to Public Bills as follows.
Money
Bills
Money Bills (Bills designed
to raise money through taxes or spend public money) start in the Commons and
must receive Royal Assent no later than a month after being introduced in the
Lords, even if the Lords has not passed them. The Lords cannot amend Money
Bills.
Other
Commons Bills
Most other Commons Bills can
be held up by the Lords if they disagree with them for about a year but
ultimately the elected House of Commons can reintroduce them in the following
session and pass them without the consent of the Lords.
Bills
not subject to the Parliament Acts
·
Bills prolonging the length of a Parliament beyond five years
·
Private Bills
·
Bills sent up to the Lords less than a month before the end of a
session
·
Bills which start in the Lords
Bills
subject to the Parliament Acts
Only seven Bills have become Acts under this
procedure:
Government of Ireland Act 1914
Welsh Church Act 1914
Parliament Act 1949
War Crimes Act 1991
European Parliament Elections Act 1999
Sexual Offences (Amendment) Act 2000
Hunting Act 2004
Jackson v Attorney General (2006): the appellants had an
interest in fox hunting and they wished to continue. They challenged the legal
validity of the Hunting Act 2004, which on its face, makes it an offence to
hunt wild animal with a dog save in limited circumstances. The appellants acknowledged
that the legislative procedure adopted to enact the Hunting Act was in
accordance with the procedure laid down in the Parliament Act 1949, but they
contended that the 1949 Act was itself invalid; it did not receive the consent
of House of Lords. The main question
turned on the validity of the 1949 Act and that in turn depends on the true
effect of the 1911 Act. It was held by the House of Lords that the Acts were
valid but regarding parliamentary sovereignty what’s more pertinent is, did the
courts have the jurisdiction to consider a challenge to the validity of an Act
of Parliament? After all, it is well established that the courts will not look
behind an Act of Parliament to investigate the process by which it was enacted
– the enrolled bill rule affirmed in Pickin case. The courts were willing to review the
validity of an Act of Parliament, suggesting an appetite for expanding their
jurisdiction into areas considered ‘off limits’
Contemporary
issues and sovereignty
1. The European
Community and Union
In 1973 Britain became a
member of the European Community, and through the European Communities Act
1972received Community law into domestic law and accepted that in cases of
conflict Community law must prevail over domestic law. The European Court of
Justice insists that Community law is supreme and that member states have
surrendered their sovereignty in matters regulated under Community law. To
counter argue the supremacy of Parliament is demonstrated when examining the
status of international law within UK. The fundamental rule remains that
international law cannot take legal effect within the law of the UK unless and
until it is brought into domestic law by an Act of the Sovereign Parliament.
For this reason, it was necessary to enact the European Communities Act 1972 to
give effect to the Community law.
2.
Devolution
In 1998 Parliament passed
the Northern Ireland Act, the Scotland Act and the Government of Wales Act.
Each of these Acts devolved to those nations differing scopes of law-making
power. While these Acts remain in force, the United Kingdom’s legal sovereignty
remains. However, in practical terms Parliament’s power is limited to the
extent that the power to make law over devolved matters lies with the devolved
Parliament.
3.
The Human Rights Act 1998
Incorporation of the
majority of rights protected under the European Convention on Human Rights into
national law through the Human Rights Act 1998 enables Convention rights to be
enforced in the domestic courts rather than in the European Court of Human
Rights in Strasbourg. The Act has specifically preserved the sovereignty of
Parliament by denying the judges the power to declare an Act of Parliament
invalid; instead, they may make a declaration to the effect that a particular
law is contrary to the Convention, thereby leaving it to Parliament to enact
the necessary changes.
