Parliamentary Sovereignty

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Parliamentary Sovereignty
and its limitations
the impact of EU membership,
ECHR ratification and devolution
on parliamentary sovereignty
Parliamentary Sovereignty
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What is parliamentary sovereignty?
What is parliamentary democracy?
Parliamentary Sovereignty


What is parliamentary sovereignty?
What is parliamentary democracy?
Principle of public constitutional law : Meaning: the legislature is supreme and stands
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
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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
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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.

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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 parliament’s 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
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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 Lardner-Burke [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
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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
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
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
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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
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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)

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Council of Ministers makes law
ECJ applies and enforces Community law
(binding on the Member States)
Membership within the EU and
parliamentary sovereignty
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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…”

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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
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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
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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
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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
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a voluntary surrender of Parliament’s
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
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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
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(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
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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 …
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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
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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
Dicey’s contradictions, 2007 P.L.435
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