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Parliamentary Sovereignty and its limitations the impact of EU membership, ECHR ratification and devolution on parliamentary sovereignty.

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Presentation on theme: "Parliamentary Sovereignty and its limitations the impact of EU membership, ECHR ratification and devolution on parliamentary sovereignty."— Presentation transcript:

1 Parliamentary Sovereignty and its limitations the impact of EU membership, ECHR ratification and devolution on parliamentary sovereignty

2 Parliamentary Sovereignty What is parliamentary sovereignty? What is parliamentary sovereignty? What is parliamentary democracy? What is parliamentary democracy?

3 Parliamentary Sovereignty What is parliamentary sovereignty? What is parliamentary sovereignty? What is parliamentary democracy? 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)

4 Parliamentary Sovereignty What is 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.

5 Parliamentary Sovereignty What is parliamentary sovereignty? What is parliamentary sovereignty? What is parliamentary democracy? 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.

6 Parliamentary Sovereignty The doctrine (1) Parliament can make any law (1) Parliament can make any law (2) No Parliament can bind a future parliament (any law can be changed by the future parliament). (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 (3)No Court can question a valid Act of Parliament

7 Parliamentary Sovereignty

8 Parliamentary Sovereignty: the most important characteristic of the British Constitution 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 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 In the UK there is no Constitutional Court

9 (1)There can be no legal limitation on the power of parliament to enact legislation. 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. 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) 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 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.) to reform the composition of houses of Parliament ( Reform Acts 1832, 1868, Life Peerages Act, 1958; House of Lords Act 1999.)

10 (1)There can be no legal limitation on the power of parliament to enact legislation. (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 , which enabled Bills to become Acts without the assent of the House of Lords. Parliament can even alter the meaning of what constitutes an Act of Parliament. Parliament Acts , which enabled Bills to become Acts without the assent of the House of Lords.

11 (2)Act of Parliament cannot bind its successors, i.e. later parliaments. Principle of Continuing sovereignty 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. 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. 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.

12 (3) No court can question Act of Parliament 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 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): 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):

13 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.” “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.”

14 Parliamentary Sovereignty and the Courts The doctrine needs to take into account political realities and new developments The doctrine needs to take into account political realities and new developments today, it is seen as a general rule rather than absolute one today, it is seen as a general rule rather than absolute one Consideration for so-called ‘constitutional statutes’ undermined the doctrine 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 The doctrine of parliamentary sovereignty is judge-made, it is up to the judges to adapt it to changing political and historical circumstances

15 Jackson Decision in Jackson decision in Jackson decision Lord Hope was critical of parliamentary sovereignty : 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.” “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.”

16 Jackson Decision Lord Hope also said: Lord Hope also said: “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.” “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.” And he added: 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.” “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.”

17 Jackson Decision Lord Hope also said: Lord Hope also said: “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.” “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.” And he added: And he added: “Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so “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.” unacceptable that the populace at large refused to recognise it as law.”

18 Constraints on parliamentary powers Membership in the EU Membership in the EU Human Rights Act 1998 Human Rights Act 1998 Devolution Devolution

19 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. 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. Problem with the EC membership: the UK system needed to accept major EC principles : supremacy of EC law, direct applicability, direct effect.

20 Sovereignty and the EU Broad executive, legislative and fiscal powers are vested in the organs of the Community 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) Council of Ministers makes law Council of Ministers makes law ECJ applies and enforces Community law (binding on the Member States) ECJ applies and enforces Community law (binding on the Member States)

21 Membership within the EU and parliamentary sovereignty 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…” 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…” Direct effect of some forms of Community law - strain on the traditional doctrine 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 Member State liability for Acts of Parliament that are inconsistent with Community law

22 Parliamentary Sovereignty and the EU The Community legal order is inconsistent with the sovereignty of Parliament. 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 “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

23 The European Communities Act 1972 Section 2(1) gives effect to all rules of Community law Section 2(1) gives effect to all rules of Community law Section 2(4) of the ECA 1972: 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” “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? What about the doctrine of implied repeal?

24 The European Communities Act 1972 Community law is superior to any Act of Parliament whenever enacted Community law is superior to any Act of Parliament whenever enacted ECA can be repealed expressly ECA can be repealed expressly However, what is the position where an Act of Parliament clashes with Community law? However, what is the position where an Act of Parliament clashes with Community law?

25 Parliamentary Sovereignty and the EC Law a voluntary surrender of Parliament’s legislative power in areas falling within competence of EC. 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 If the ECJ adjudged a statute to be incompatible with directly effective Community Law ‘the European law will prevail over that municipal legislation”. CA in Macarthys Ltd v Smith[1979] 3 ALL ER If the ECJ adjudged a statute to be incompatible with directly effective Community Law ‘the European law will prevail over that municipal legislation”.

26 Factortame and sovereignty Factortame I [1991] 1 A.C. 603 Interim relief available against operation of an Act of Parliament Factortame I [1991] 1 A.C. 603 Interim relief available against operation of an Act of Parliament Factortame II [1991] ECR Was the Merchant Shipping Act 1988 contrary to Community law? Factortame II [1991] ECR Was the Merchant Shipping Act 1988 contrary to Community law? Factortame III [1996] ECR Was the British government liable to pay compensation? Factortame III [1996] ECR Was the British government liable to pay compensation? Factortame IV decisions by English courts on the breach question [2000] EULR 40 Factortame IV decisions by English courts on the breach question [2000] EULR 40

27 Sovereignty and the Human Rights Act Doctrine of Parliamentary Sovereignty has long been the main obstacle Doctrine of Parliamentary Sovereignty has long been the main obstacle Strasbourg decisions had an impact on the development of the common law Strasbourg decisions had an impact on the development of the common law See Osman v UK case EHRR, 245

28 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? 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 ALL ER 193

29 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. 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 Subordinate legislation may be quashed if incompatible Declaration of incompatibility (s. 4) Declaration of incompatibility (s. 4) Alconbury case [2001, HRLR 2]

30 Parliamentary Sovereignty and the Human Rights Act (1) A new strong interpretative duty (1) A new strong interpretative duty (2) subordinate legislation may be quashed if incompatible (2) subordinate legislation may be quashed if incompatible (3) declarations of incompatibility (3) declarations of incompatibility (4) new ground of review (4) new ground of review (5) Strasbourg case law to be taken into account (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. (6) Parliament is not bound by the HRA but HRA is politically entrenched and cannot be impliedly repealed.

31 Devolution and Parliamentary Sovereignty Law-making powers to the Scottish Parliament Law-making powers to the Scottish Parliament Impact on Westminster sovereignty: Impact on Westminster sovereignty: Westminster retains full capacity to repeal the Scotland Act Westminster retains full capacity to repeal the Scotland Act Westminster may still legislate for Scotland Westminster may still legislate for Scotland Scottish Parliament may amend Westminster Acts within its competence Scottish Parliament may amend Westminster Acts within its competence

32 Summarising … European Community Act goes furthest European Community Act goes furthest Enables the court to decide whether an Act of Parliament complies with Community law Enables the court to decide whether an Act of Parliament complies with Community law Human Rights Act has given judges interpretative tools Human Rights Act has given judges interpretative tools Scotland Act: new powers for Scottish Parliament Scotland Act: new powers for Scottish Parliament

33 Conclusion Parliamentary sovereignty remains essential for the British legal system Parliamentary sovereignty remains essential for the British legal system The concept is constantly evolving 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 The courts formulated and articulated the doctrine, it is up to them to restate the principle in response to new political circumstances

34 Further Reading Elliott, M. Parliamentary sovereignty under pressure (2004), International Journal of Constitutional Law, 2(3) 545 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 McLean, I. and McMillan, A. Professor Dicey’s contradictions, 2007 P.L.435


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