Parliamentary Sovereignty: The Orthodox Doctrine pt1

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Parliamentary Sovereignty: The Orthodox Doctrine 

I.     Historical Origins

A.   1. The idea that what the Queen enacts in parliament is law. It’s the legislative supremacy of parliament

• What is Parliament?
  • Queen, Commons and Lords, acting jointly in the Westminster Parliament
  • Not devolved assemblies (incl Scottish Parliament)
  • Not Government

B.   Key Historical Moments:

1.Magna Carta  1215= signalled the creation of the world’s first human rights document. Also this is where the origins of parliament come from.

17th Century upheaval crucial period in England as this saw parliament changing continuously. Examples- English Civil War, Glorious Revolution and Bill of Rights etc

II.    Diceyan Orthodoxy

1. A.     Dicey’s Rule: parliament has, under the English constitution the right to make or unmake any law… no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament

B.   Positive Aspect:

1. Legislature has the power to alter any law.

• Cheyney v Conn 1968= what the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law… it is not for the court to say that a parliamentary enactment, the highest law in this country is illegal.- Ungoed-Thomas J
  • Facts:  Taxpayer argued that a tax collected under the Finance Act 1964 would be used for a purpose illegal in international law (i.e. nuclear proliferation). It was therefore invalid.

2. No Parliament can bind its successors. (doctrine of implied repeal.

• Ellen Street Estates v Minister of Health 1934- the legislature cannot bind itself  as the form of subsequent legislation… impossible for parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal.
• Facts: Taxpayer argued that a tax collected under the Finance Act 1964 would be used for a purpose illegal in international law (i.e. nuclear proliferation). It was therefore invalid.

C.   Negative Aspect:

1. no person or body has the right to set aside or disregard an Act of Parliament

• Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 CL & Fin 710:
  • all that court of justice can do is to look to the parliamentary roll: if from that it should appear that a bill has passed both houses and received the Royal assent, no court of justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its various stages through both houses.
  • Facts: A private Act of Parliament was challenged as inoperative because those affected by it had not been given notice as required by parliamentary standing orders.

-THIS IS CALLED THE ENROLLED BILL RULE. (applied in Jackson v Attorney General)

2. No questioning internal proceedings

• BRB v Pickin 1974= the respondent alleged that a previous Act of Parliament had been passed only after Parliament had been misled by the appellant. Court upheld the validity of the Act, stating that it would be for Parliament itself to investigate any defects in procedure.
• Facts: Pickin owned land that was expropriated for laying railway lines, under a statute that guaranteed that if the railway lines were discontinued, such persons could have the land back. A private bill (the British Railways Act 1968) extinguished that right of ‘reverter.’ Pickin argued it was invalid on account of (1) being passed through Parliament without adequate notice to those affected (as required by parliamentary procedure), and (2) because Parliament was misled by fraudulent statements when induced to accept the bill.

• There is no distinction between constitutional and non-constitutional laws.  a statute in force is always legally supreme. However, now compare Thoburn on ‘constitutional statutes’.

• Parliamentary sovereignty is not the same as political sovereignty (pp.27ff):  ‘If the doctrine of Parliamentary sovereignty involves the attribution of unrestricted power to parliament, the dogma is no better than a legal fiction…’‘[S]overeignty … is merely a legal conception, and means simply the power of law-making unrestricted by any legal limit.’ (p.27)  Turpin & Tomkins, p.59: ‘The doctrine establishes ‘the legal supremacy of statute.’

So basically the doctrine of parliamentary supremacy exists because it establishes the supremacy of statute. 

III.   Manner and Form or the New view

A.   -No parliament can bind its successors.

• Manner and Form legislation means= if parliament is really sovereign it can take decisions to limit its own supremacy. If parliament wanted to adopt constitution of procedure about how it makes laws in the future it should be able to do so.
  • origin of the expression= s5 Colonial Laws Validity Act 1865.

B.   Commonwealth case law seems to be the only authority for the contention that P may be bound by such special provision regulating the ‘manner and form’ of future legislation, providing partial entrenchment by the likes of a referendum or special majorities in each house for any amendment or repeal.

1. -Harris v Minister of the Interior 1952= The Union Parliament was bound in the manner and form of its legislation, despite its legal independence from Britain. The legislature wasn’t supreme as its power was granted by Britain
2. AG for New South Wales v Trethowan 1932=  the provision that Bills of the nature stated must be approved by the electors before being presented was a provision as to “manner and form” within the meaning of the proviso; and accordingly that the Bills could not lawfully be presented unless and until they had been approved by a majority of the electors voting.
3.  Bribery Comr v Ranasignhe 1965= A legislature has no power to ignore the conditions of lawmaking that are imposed by the instrument which itself regulates its power to make law. […]. A legislature has not, however, some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constitutional instrument has said shall not be valid unless made by a different type of majority or by a different legislative process

• Jackson v Attorney General [2005] UKHL 56.

•  L. Steyn: ‘But apart from the traditional method of law making, Parliament acting as ordinarily constituted may functionally redistribute legislative power in different ways.  For example, P could for specific purposes provide for a two-thirds majority in the House of Commons and the House of Lords.  Such redefinition could not be disregarded.’

L. Hale: [163] ‘What the Commonwealth cases do suggest, however, is the contrary proposition: that if Parliament is required to pass legislation on particular matters in a particular way, then Parliament is not permitted to ignore those requirements when passing legislation on those matters, nor is it permitted to remove or relax those requirements by passing legislation in the ordinary way: see Harris v Minister of the Interior 1952 (2) SA 428 and Bribery Comr v Ranasinghe [1965] AC 172. If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, it may very well be that it can also redefine itself upwards, to require a particular parliamentary majority or a popular referendum for particular types of measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed. But that is for another day.’

C.   The New View: ‘On this view a sovereign legislature may validly reformulate what shall count as legislation for particular purposes. …Unfortunately …the ‘new view’ is far from being a unanimous view.’ Geoffrey Marshall, Constitutional Theory (OUP 1971) p.43.

B. Extinguishing or Abandoning Sovereignty

• Dicey’s theory: Parliament ‘abdicates’ sovereignty over former colonies but does not ‘limit’ itself.

C. The Entrenchment of Legislation/Constitutions

• Under the orthodox picture, entrenchment was a legal impossibility:

• ‘As a matter of law the courts of England recognize Parliament as being omnipotent in all save the power to destroy its own omnipotence.’ (Manuel v Att Gen [1983] Ch 77 (Sir Robert Megarry VC).
• ‘There are no means whereby, even with the assistance of the most skilful draftsman, [Parliament] can entrench an Act of Parliament. It is impossible for Parliament to enact something which a subsequent statute dealing with the same subject matter cannot repeal.’  (Jackson v Attorney General [2005] UKHL 56, (Lord Hope)).
• Wade (1955): entrenchment a ‘legal impossibility’ on the Diceyan view.
• Writers now take a different view: Goldsworthy, Bradley & Ewing.

IV.   What is the source of Parliamentary Sovereignty? 

A.   The doctrine is regarded by most as a rule of recognition:

HLA Hart, The Concept of Law.  The rule of recognition is the ultimate legal rule (p.107) that derives its authority not from the validity of other rules, but from its being accepted and enforced by the officials in a legal system.

B.   Common Law rule: the doctrine of parliamentary sovereignty is a matter of judge-made common law.  The judges can therefore modify or repudiate the doctrine, so as to limit or extinguish Parliament’s authority.  (believed by Jennings, RFV Heuston, Lord Steyn in Jackson; Lord Hope in Jackson.

Lord Steyn, Jackson: ‘[T]he supremacy of Parliament is still the general principle of our constitution. The judges created this principle. IF that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.’

maybe the courts may refuse to follow an act of parliament

C.   Political practice/custom of official consensus: The rule of parliamentary sovereignty has its authority because there is an official consensus between senior officials of all branches of government.  On this view, it was not fixed by judges alone, and it is not maintained by judge’s forbearance. It is a rule recognized by judges, as by others, and a change to it must be a change in the official consensus such that there will be new consensus around a new rule.

V.    Political Appeal of the Doctrine

A.   A.Parliamentary Sovereignty and Democracy

‘The principle of the sovereignty of Parliament, as it has been developed by the courts over the past 350 years, is founded upon the unique authority Parliament derives from its representative character.’ (R (Bancoult) v SS for Foreign and Commonwealth Affairs (no 2)) [2008] UKHL 61 [35] (per Lord Hoffmann)).

First Great Reform Act (1832): Before this act came into effect, only 11 percent of adult men had the right to vote. This extended the franchise.