Parliamentary Sovereignty under the New Constitutional Hypothesis

 The classic doctrine comes from Dicey who famously considered the sovereignty or supremacy of
parliament (limited only by the fact that parliament cannot bind its successors) to be our prime
constitutional principle to which his other principle, the rule of law ran a clear second place.
 The role of the courts has changed somewhat since then. Under EC law, courts have reviewed
some Parliamentary legislation. Under the HRA 1998, courts have new interpretation duties with
regards to legislation. Further under the HRA, courts have the power to make a declaration of
incompatibility. However, neither of these instances amounts to a challenge to parliamentary
sovereignty, as parliament has in each case permitted this to happen.
 In the recent case of Jackson v Att.-Gen., the HL did in effect review the validity of Acts of
Parliament, albeit under the rubric of statutory interpretation. Dicta in Jackson suggests that the
judiciary rejects the notion of the unfettered authority of the legislature.
o Recognition of implied constitutional principles has been an important feature of recent
judicial decisions
 Parliaments authority has been acquired through accumulating legitimacy over the years from
various sources. This makes it clear that the contents of an unwritten constitution are clearly open
to alteration.

Jackson Case

 Jackson challenged the validity of the hunting act

 It was passed without the approval of the HL using the Parliament Acts 1911 and 1949 (see Lord
Bingham at [9]-[12] for a detailed history)
 The hunting act was challenged on the basis that the 1949 act was invalid

The Jurisdictional Question

 Could courts even review the validity of the Parliamentary Enactments?

 Att.-Gen. Decided that they could as they were merely engaging in statutory interpretation of the
1911 Act. (As to whether it allowed the 1949 Act)

The Appellant’s Arguments

Delegated Legislation Argument

 1949 Act was not primary legislation but instead was subordinate legislation as it was made under
the 1911 Act and even (per the 1911 Act) has to state on its face that it is made under the
authority of the 1911 Act.
 It is a well established principle that delegated legislation cannot enlarge or even modify the
scope of the Act under whose authority it is made. (At least in the absence of express language in
the specific Act allowing it)

This was rejected on 2 grounds

 The 1911 Act stated that any Act passed under it would become an Act of Parliament. It was held
that this language was unambiguous and meant that Acts under it would be primary legislation
 The intention of parliament was to restrict the power of the HL and not to delegate power to the
HC (or even to enlarge the power of the HC).

Bootstraps Argument

 The 1911 Act didn’t allow a future statute to use the procedures set out in the 1911 Act to amend
the act itself (i.e. to pull itself up on its own bootstraps
 The Divisional court rejected this argument
 The CA said that legislation under the 1911 Act could make modest changes (including the 1949
Act) but perhaps not fundamental changes as to the relationship between HL and HC.
 In the HL, Lord Bingham essentially agreed with the Divisional court and gave further support
 Lord Nicholls said that the power (in the 1949 Act) to amend the Act was unrestricted except for
prolonging the life of parliament beyond 5 years. The majority agreed with this but some raised
the question as to whether other radical acts were impliedly exempted as well including things like
the abolition of the HL or the abolition of JR.

Dicta on the Sovereignty of Parliament

Wide Ranging

Lord Bingham essentially refused to deny Parliamentary Sovereignty

Lord Steyn

 He said that we don’t have an uncontrolled constitution

 The ECHR (empowered by the HRA 1998) created a new legal order in which the UK assumed
obligations to protect fundamental rights in relation to all individuals in its jurisdiction
 Parliamentary Sovereignty is no longer as pure and absolute as it was (though it is still the
general rule)
 Parliamentary Sovereignty is a construct of the common law. It is judge created and thus it is not
unthinkable that it can be changed.
 In exceptional circumstances, (e.g. abolishing of JR, or a change in the role of the courts) the
appellate committee of the HL (or an American style Supreme Court) may have to consider
whether it is a constitutional fundamental which even a Sovereign Parliament cannot abolish.

Lord Hope (Scottish perspective)

 Constitution is dominated by the sovereignty of Parliament but Parliamentary Sovereignty is no

longer absolute. (If it ever was)
 Step-by-step, the Sovereignty of Parliament is being qualified.
 The Rule of Law is the ultimate controlling faction on which our constitution is based.
 If legislation is passed which is so unacceptable that the population at large refuses to recognise
it as law, it is an empty principle.

Baroness Hale

 Courts will treat with suspicion (and might even reject) attempts to subvert the rule of law b
removing governmental action affecting the rights of the individuals from all judicial powers.

Justification of Limits to Parliamentary Sovereignty

 Dicta in Jackson goes further than any other judicial pronouncements to date suggesting that
absolute sovereignty of parliament is no longer acceptable as our primary constitutional principle.

Jowell feels that there are 2 main justifications for this limit

1. The basis of its Legitimacy

 The legitimacy of Parliamentary Sovereignty rests upon its representative and accountability
features
 Extreme laws (for example legislation to suspend or abolish elections) would undermine the
legitimacy and thus the very condition upon which parliaments’ claim to supremacy lies.
 Per Lord Hope “The principle of Parliamentary Sovereignty which in the absence of higher
authority has been created by the common law is based on the assumption that Parliament
represents the people who it exists to serve/”

2. Hypothesis of Constitutionalism

 Would courts strike down acts which attempted to subdue ‘building blocks’ of our constitutional
democracy? (e.g. judicial review)
 We can assess this in some ways
 Look at the area of judicial review of administrative action (ultra vires school)
o Discretion of public officials is to be exercised within the scope conferred by parliament
and in a manner that is procedurally fair and reasonable
o The justification for this? If they act ultra vires, courts can ensure parliaments will is
followed. Therefore, judicial review involves the implementation of express or implied
intent of the legislation
 What of Judicial Review of bodies not created by Parliament? (Other non-statutory bodies such
as the self-regulatory Panel on Takeovers and Mergers) and also, prerogative powers? Here,
there is no legislative intent to give effect to and others also say that things like ‘natural justice’
and right to a ‘fair hearing’ are construct of the courts and not the intention of parliament.
(common law school)
o The common law school concedes the need to resolve many cases by reference to
express or implied legislative purpose, but they point out that in some cases, the courts
have fashioned technical distinctions and devices so as deliberately to obstruct such a
purpose.
 An attempt to reconcile the two is the modified ultra vires theory.
o It is critical of the common law school which undermines the separation of powers. It
accepts common law theory acknowledging that judges fashion principles of good
administration independent of specific parliamentary intent. It maintaints that these
principles should be applied with consistent with the attribution to Parliament of a general
intention that power which parliament confers should be exercised in accordance with the
rule of law.
o In other words, legislative silence or ambiguity is read in the context of a presumption of
continuing consent by Parliament to be bound by the rule of law as elaborated by the
courts.
 This modified theory is still artificial as it attempts the synthetic exercise of fixing implied intent on
a complicated base

 Jowell feels that justification for Judicial Review rests on 2 assumptions

1. Parliament ought to abide by the Rule of Law and other necessary principles of a modern
European Democracy
2. Courts ought to interpret statutes on the basis that parliament does indeed abide by the
rule of law and other necessary principles of a modern European Democracy.
 This justification for judicial review avoids imputing artificial intention to parliament or undue law
making power to the courts. It simply requires that parliamentary enactments are read subject to
(1)
 Together, (1) and (2) shift Lord Steyn’s ‘hypothesis of constitutionalism’ away from the Diceyan.
 Now, the democracy is no longer synonymous with majority rule. Judicial review has an
expectation that the rule of law and fundamental rights shall be guarded.
 The practical impact of the above principles is highlighted through the last 40 years or so of JR.
 You can see it slowly modifying PS, making it hard for parliament to authorise ingringements of
the Rule of Law and fundamental rights
 o Previously, courts wouldn’t have scrutinised the exercise of official discretion outside of
the loose Wednesbury formula of manifest unreasonableness.
o In recent years, courts have been more willing to probe discretionary powers further when
human rights were identified as being engage. (even before HRA 1998). Therefore, these
‘home-grown’ rights were acknowledged as features of out constitutional system.

 The scope of the rule of law has been widened. It contains both procedural and substantive
content. (e.g. ex parte Pierson)
 It has made certain things clearly fundamental constitutional principles
 Parliament itself has play a significant role in protecting rights; e.g. HRA 98, CRA 05 (separation
of powers and part 1 of the Act will not adversely affect the existing constitutional principles of the
rule of law. The act places a duty on ministers to uphold the independence of the judiciary. The
formation of a new supreme court highlights the independence of the judiciary.)
 All this will enhance the status of the rule of law as the primary constitutional principle
 It enhances the authority of the judiciary to protect constitutional principles

Who Speaks for the Constitution?

 Without a written constitution, by what authority can courts prohibit violations of (1)?
 Lord Hope “The fact that your lordships have been willing to hear this appeal and to give
judgment upon it is another indication that the courts have a part to play in defining the limits of
Parliament’s legislative sovereignty”
 Even Lord Bingham who firmly endorsed PS, justified the JR on the ground that otherwise the
points raised by the appellants could not be raised at all, which he considered “would not be...
consistent with the rule of law”
 Lord Upjohn in Padfield [1968] in relation to a ministers contention that a wide power conferred
upon him unfettered discretion; “The use of that adjective, (unfettered) eve mom am Act of
Parliament can do nothing to unfetter the control which the judiciary have over the executive
namely that in exercising their powers the latter must act lawfully and that is a matter to be
determined by looking at the Act and its scope and object in conferring a discretion upon the
Minister rather than by use of adjectives.”