The Sovereignty of Parliament II: Contemporary Challenges to PS pt2

• Click on the diagram to zoom in
• There are more in-depth notes below the diagram, hope it helps.
• Also refer back to your own lecture notes, for more in-depth notes, couldn’t fit all of it in the mind-map, but I’ve included the headings, just not the substantive notes for them.( I mean the ‘Jackson: The Far Reaching Dicta’ and ‘Contemporary Debates Headings.’

1.  The Sovereignty of Parliament II: Contemporary Challenges to PS

Supremacy of EC law

1.   Section 2(1), European Communities Act (ECA) 1972:

All such rights [etc.] created or arising by or under the Treaties […] are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly

• S2(2) is basically saying you can use delegated legislation for implementing EU Law.
• s2(4) saying you can amend an AoP. It conveys the Henry VIII Clause.

2.   R v Secretary of State ex p Factortame 1990

(‘a national court which, in a case before it concerning Community law, considers that the sole obstacle [precluding relief] is a rule of national law must set aside that rule.’)

3.   Factortame II 1991

Facts: The Merchant Shipping Act 1988 appeared to deprive Factortame Ltd. of its EU law rights to freely do business in the UK. The company operated a merchant fishing fleet. It was owned by Spanish businessmen seeking to evade the EU imposed fishing quotas imposed in Spain (and throughout the EU) by registering vessels in Britain. The effect of doing so under the Merchant Shipping Act 1894 was that its catch would be booked against the UK’s quota. The Merchant Shipping Act 1988 sought to ban the practice by imposing certain nationality and residency requirements for operators of fishing fleets fishing in UK waters.  Fearing bankruptcy, Factortame sought to have the Act disapplied in interim proceedings, pending final resolution of the question of whether the Act deprived them of EU law rights.

Held: A UK court, in applying EU law, can provide interim relief ordering the Minister to ‘disapply’ UK legislation that may deprive someone of their EU law rights.  In future litigation, the 1988 Act was found by the unanimous House of Lords to be a ‘grave’ and ‘manifest’ violation of Factortame’s EU law rights.

1.   Lord Bridge:

‘this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament.’

‘whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. ‘

Basically: The EU was arguing- that the UK knew what they were doing when they joined and signed the Treaty. Where there’s a conflict, the UK should disapply an Act of Parliament. And this is novel because no court had done this before.

4.   Summary of explanations of Factortame (See Craig (1991) 11 YEL 221)

1.   Constructionist view:

That the interpretation given was the only proper construction that gave effect to the European Communities Act 1972.  Laws LJ.

What was the court doing?= they were interpreting the law and they did exactly what the Act asked.

2.   Legal principles view:

The courts ascertained legal principles embedded in the constitution and applied them to novel circumstances:  TRS Allan; PP. Craig.

The court wasn’t making up new law, but they looked at all EU law and took a general picture.

3.   Revolution view: 

That the decision of the court to allow a contradictory later statute to stand amounted to a technical ‘revolution’ whereby the fundamental rule of recognition was altered – the courts recognized a new doctrine of parliamentary sovereignty: William Wade.

2.   Henry VII Clauses

1.   The term ‘Henry VIII clause’ is usually applied when there is wide discretion in the making of delegated legislation.

2.   Defined:

Clauses in primary legislation that enable the amendment or repeal of statutes, usually through ‘subordinate’ or ‘delegated’ or ‘secondary’ legislation (e.g. ‘orders’, rules’ ‘regulations’).

• Retrospective Henry VIII Clause: Clause in primary legislation enabling the amendment or repeal of statutes passed before.  ‘Retrospective’ clauses.
• Prospective Henry VIII Clause: Those which create a power to change Acts of Parliament passed after the Act containing the Henry VIII clause.

3.   Example 1: Thoburn v Sunderland City Council [2002] EWHC 195 (Admin):

1.   Facts: The ‘metric martyrs’ case, where certain market traders resisted the mandatory use of metric weights and measures in their trading, and were prosecuted for violating the applicable law.  The law making it an offence to not use them was created in the following way, under the following powers:

• Statute One: European Communities Act 1972, s.2(2) (& 2(4) – empowers the executive to alter statutes in order to bring UK law into line with Community obligations.
• Statute Two: Weights and Measures Act 1985, s.1, states that yars and pounds , addition to metres and kilograms, are lawful units of measurement.
• Delegated Legislation: Units of Measurements Regulations 1994, passed by virtue of the European Communities Act 1972, purported to amend the 1985 Act. The result of this change would be that from the year 2000 yards and pounds could not be used as primary units of measurement.1

Held: The amendment was valid.  (1) there is no implied repeal because there is no conflict between the 1972 and 1985 Acts [50]ff; (2) if there were any conflict, the 1985 Act would not amend the ECA 1972 Act because it is a ‘constitutional statute’ immune from implied repeal (on which see further below) [60]-[67].

Controversy: Judges can change the meaning of an Act to make it compatible , and they can add words to an Act- this is an affront to parliamentary sovereignty because they are changing the meaning and disapplying what parliament has set out.

Controversy:

Judges can change the meaning of an Act to make it compatible , and they can add words to an Act- this is an affront to parliamentary sovereignty because they are changing the meaning and disapplying what parliament has set out.

4.   Example 2: Human Rights Act 1998, s.10 and Schedule 2 (‘Remedial Orders’).

These provisions empower a Minister to amend primary legislation that has been held incompatible with the ECHR by a UK or Strasbourg court.  The ‘remedial order’ must be laid before both houses of parliament and approved by resolution.

3.   Human Rights Act 1998

 1.   s. 3 HRA 1998:  ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’

“Read and give effect” requires the interpretation “where possible” of legislation – where there is an interpretation open to the court that is consistent with Convention rights, it must be chosen over those that do not. Following the introduction of the Human Rights Act, there was some disagreement between judges as to how far this provision went

1.   Ghaidan v Godin – Mendoza [2004] UKHL 30, Lord Nicholls:

– it is natural to focus attention initially on the language used in the legislative provision being considered.

-Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant

-the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is “possible”, a court can modify the meaning, and hence the effect, of primary and secondary legislation.

1.   Lord Steyn, in Ghaidan v Godin-Mendoza, noted that it may be necessary under section 3 to “adopt an interpretation which linguistically may appear strained” and that a declaration of incompatibility was a “measure of last resort”.

2.   s.4(2), declarations of incompatibility:

‘If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.’

1.   Rt Hon Lord Hoffmann, ‘Human Rights and the House of Lords’ (1999) 62 Modern Law Review 159, 160:

–‘I put aside at once the technical distinction that the American and German courts can declare acts of the legislature to be unconstitutional and void whereas the Human Rights Act, in deference to the theory of the sovereignty of Parliament, allows the UK courts only to declare that legislation is incompatible with the European Convention. I call this a technical distinction because I think that if the courts make a declaration of incompatibility, the political pressure upon the government and Parliament to bring the law into line will be hard to resist. The real differences seem to me to reside in the history, cultures, and political structures of the three countries.’

3.   Commentators divide quite substantially on whether they think, properly interpreted, the HRA modifies the doctrine of parliamentary sovereignty:

It does:  Aileen Kavanagh; Mark Elliot; Lord Hope; Vernon Bogdanor.

It doesn’t:  Alison Young; Jeffrey Goldsworthy; Jack Straw MP; Lord Neuberger.

4.   Common Law Constitutionalism/’Radicalism’

1.   There is dicta in a number of important judgments, as well as statements by prominent judges, in the last ten years that cast some doubt on the legal status of the orthodox doctrine of parliamentary sovereignty.  The theme unifying these views is that a judge may under the UK constitution be entitled to set aside an Act of Parliament if, in a nutshell, it fundamentally compromises the rule of law or is an outrageous assault upon human rights.

2.   A. Ouster Clauses and Judicial Review

1.   Anisminic v. Foreign Compensation Commission [1969] 2 AC 223:

• The case holds that ouster clauses cannot prevent the courts from examining an executive decision that, due to an error of law, is a nullity. Although prior to Anisminic an ouster clause was effective in preventing judicial review where only a non-jurisdictional error of law was involved, following that case ouster clauses do not prevent courts from dealing with both jurisdictional and non-jurisdictional errors of law, except in a number of limited situations.

5.   Constitutional Statutes

1.   Robinson v SS Northern Ireland [2002] UKHL 32

• s16(1) Northern Ireland Act 1998: ‘“(1) Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and the deputy First Minister.’

Lord Bingham (at [11]): ‘The 1998 [Northern Ireland] Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Act is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody.’(See Turpin and Tomkins, pp.88-91, note the critique on p.90).

2.   Thoburn v Sunderland City Council [2002] EWHC 195 (Admin):

• Laws LJ proposed that courts should recognise a distinction between ‘ordinary’ and ‘constitutional’ statutes and that the doctrine of implied repeal be limited to the former only.

6.   Jackson v Attorney General

 1.   The Parliament Act 1911 & Parliament Act 1949

1.   Question: is an Act passed under this [s2(1) of 1911 Act] provision an ‘Act of Parliament’ or a form of delegated legislation that is controllable by judicial review?

Parliament Act 1949: This bill amends the PA 1911 to the effect that the Lords can reject the bill twice in two successive sessions, and provided one year has elapsed, the Commons can present the bill for Royal Assent.

2.   The Jackson Case – The Basics

1.   Facts: The Hunting Act 2004 was enacted using the Parliament Act 1949, which was itself enacted under the procedure provided by the Parliament Act 1911.

Claimants’ Arguments:  (1) Acts adopted under the Parl Acts are subordinate or delegated legislation; subordinate legislatures cannot expand on their powers (‘delegatus non potest delegare’);  (2) General words in section 2(1) should not be interpreted as allowing changes to fundamental principles of law such as the identity of the sovereign;

Held: The 1949 and 2004 Acts were valid.

C.Jackson – The Key Issues & Holdings

1. Is the question of the validity of an Act of Parliament justiciable?
2. Yes (unanimous).
   1. Is legislation passed under the Parliament Acts ‘delegated legislation’?

.                    No  (unanimous).  Wade and Hood Philips were wrong.

1. Would a bill to prolong the life of Parliament adopted through the Parliament Acts be recognized as a valid Act of Parliament?

.                    No (Lords Bingham, Nicholls, Steyn, Hope, Carswell, Brown and Lady Hale).

1. No view expressed: (Lords Walker; Lord Rodger implied that it could be recognized as such).
   1. Would a bill to amend the Parliament Acts, passed through its procedure with an aim to prolong the life of Parliament, be accepted as a valid Act of Parliament?

.                    No (Lords Nicholls, Steyn, Hope, Carswell, Lady Hale). You cannot do in two-steps what you cannot do in one.

1. Yes (Lord Bingham).
   1. Are there any other amendments to the 1911 Act that would be regarded as ‘too fundamental’ to allow to pass through the procedure in the Parliament Acts?

.                    Various answers given.

1. No limits:  Lord Bingham.
2. One exception: (As above, in point 4).

Maybe more: Lords Carswell, Brown.

7.   Contemporary Debates

refer back to lecture notes for more in-depth stuff.

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