Public Law

Characteristics of the UK Constitution

(ctd)
Topic 2: Parliamentary Sovereignty
Dr Alan Greene
Reader in Constitutional Law and Human Rights
@DrAlanGreene #BLSPublicLaw
Characteristics of the
British Constitution: The
Political Constitution
• Political constitution: where those exercising political power are
held to account primarily through political processes (e.g.
ministerial responsibility) and in political institutions (e.g.
Parliament)

• Legal constitution: where those exercising political power are held

to account to a substantial and increasing extent via legal process
(e.g. judicial review) and in judicial institutions (e.g. the courts).
‘The constitution of the United Kingdom lives on, changing from day
to day for the constitution is no more and no less than what happens.
Everything that happens is constitutional. And if nothing happened
that would be constitutional also.’– JAG Griffith, ‘The Political
Constitution’ (1979) 42(1) Modern Law Review 1.
Key claims of The Political Constitution: Law cannot be
separated from politics

• Disagreements as to what the law entails/should entail therefore are political

dispute.

• ARTICLE 10.1 ECHR: Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public authority and
regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
• 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary.

‘That sounds like the statement of a political conflict pretending to be a resolution

of it.’– Griffith
Justifications for the Political
Constitution
• As law cannot be separated from politics the resolution of
such disagreements should be left to the democratic
branches rather than the judiciary.
Why?
• Judges are unelected and so lack the democratic legitimacy to be trusted
with such decisions.
• Political branches can be held accountable for their decisions at elections.
• Parliamentary debates are better at resolving disagreements rather than
adjudication in court.
• ‘Legislation is the very product of disagreement.’– Jeremy Waldron
• UK Constitution has even been described as ‘republican’!
 Critiques of the
Political Constitution
• Scepticism towards the protection of rights as emanating
from a privileged position
• E.g. White, male, straight.
• Judicial review as performing a ‘counter-majoritarian’
function protecting the rights of minorities.
• Democratic basis of the UK constitution
• Are general elections a good way for holding politicians to
account for their decisions?
• First Past the Post method of voting.
• General elections are fought on a platform of multiple
issues (manifestoes) rather than just single decisions.
Historically, has Parliament enacted tyrannical legislation?
Is the UK evolving into
a legal constitution?
• Devolution
• Human Rights Act 1998
• Constitutional Reform Act 2005
• European Union (!)
• Has parliamentary sovereignty been
downgraded?
 Should the
United
Kingdom codify
its Constitution?
Parliamentary
Sovereignty

This Photo by Unknown Author is licensed under CC BY-SA

What is Parliamentary
Sovereignty?
“…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 set aside the legislation of
Parliament.”
“Parliament means, in the mouth of a lawyer (though the
word has often a different sense in ordinary conversation),
the King, the House of Lords, and the House of Commons;
these three bodies acting together may be aptly described as
the “King in Parliament,” and constitute Parliament.”
– AV Dicey, Introduction to the Study of the Law of the
Constitution
 What is Parliament?
• Bicameral legislature: A legislature
made up of two houses: a lower house
and an upper house.
• Unicameral legislature: A legislature
made up of one house only.
• Westminster is a bicameral legislature.
This Photo by Unknown Author is licensed under CC BY-SA
• Lower House: House of Commons
• Upper House: House of Lords
• House of Commons: Elected (650 MPs)
• House of Lords: Unelected (approx. 800
peers)
This Photo by Unknown Author is licensed under CC BY-SA
The House of Lords
• Consists of approx. 800 peers.
• Life Peers (85% of all peers): conferred by the Queen under the Life Peerages
Act 1958, on the recommendation of the Prime Minister.
• Most are political peers: their names have been put forward to the Prime Minister by
leaders of the political parties.
• Crossbenchers: no political affiliation. Appointed in practice, appointed by the
independent House of Lords Appointments Commission.
• 91 Hereditary Peers: These are inherited. They are passed down to the eldest
heir.
• Until the House of Lords Act 1999, there were over 700 such peers and they dominated
the House of Lords.
• 25 Church of England Bishops and Archbishops
27% of peers are women and 5.4% are BAME
83% are more than 60 years old
Why the House of Lords?
Why a second chamber?
• “To compliment rather than replicate the House of Commons” and to
make “the House of Commons think again”– Royal Commission on
House of Lords Reform
• A revising chamber capable of scrutinising legislation from a range of
perspectives different to those in the Commons.
• A check on the democratic Commons, insulated from public opinion.
Is this a good thing?
Powers of the House of Lords
• Powers of the House of Lords is much more reduced than that of the
Commons– see the Parliaments Acts.
• Salisbury convention: the House of Lords should not reject a
government Bill that implements a manifesto pledge and for which
This Photo by Unknown Author is licensed under CC BY-SA
the government therefore has an electoral mandate.
The Origins of Parliamentary Sovereignty

• The doctrine, in its orthodox Diceyan form, pays no heed to the composition of
Parliament or its internal proceedings.
• The doctrine is not concerned with whether the Commons is actually
representative of the electorate or whether the balance between the Lords
and Commons is politically acceptable.
• From where does parliamentary sovereignty originate?
• No entrenched constitutional document therefore it does not originate from
this.
• Does not originate from statute. — Jennings, The Law and the Constitution
(4th ed 1952) 149.
o Note the paradox were this to be the case
• The common law?
This Photo by Unknown Author is licensed under CC BY-NC
• But if sovereignty emerges from the courts, does this mean that the
courts are, in some way, superior to Parliament?
The Origins of Parliamentary Sovereignty: A
Democratic Foundation?
• Claim: Parliament is the dominant force in the UK Constitution because its
superior democratic credentials means that it should occupy this position.
• HOWEVER, the doctrine of parliamentary sovereignty existed long before
Parliament had any meaningful democratic basis.
o Representation of the People Act 1969: extended the franchise to those over
the age of 18. (Prior to this, only those over the age of 21 could vote).
o Representation of the People Act 1928: Gave all women over 21 the same
entitlement to vote as men.
o Representation of the People Act 1918: abolished nearly all property
requirements for men over the age of 21 and granted the right to women over
the age of 30 the right to vote subject to property restrictions.
o Representation of the People Act 1867 and 1884: Amended property owning
restrictions regarding entitlement to vote. (All women and 40% of males were
still unable to vote).
o Roman Catholic Relief Act 1829: Removed many of the restrictions on Catholic
entitlement to vote; however, it simultaneously increased property restrictions.
o Doctrine of parliamentary sovereignty applied to the Imperial Parliament–
Parliament’s name when it passed legislation for British colonies during the
British empire. No ‘subject’ of a colony had representation at Westminster.
Democracy legitimates Parliament’s continuing sovereignty; however, it cannot
explain the origins of the doctrine.
Current issues with the democratic basis of
Parliament
“Parliament means… the King, the House of Lords, and the House of
Commons” — AV Dicey
• The King (Monarch): Unelected; however, powers neutralised
through convention.
• The House of Lords: Unelected. Appointed basis mostly since the
House of Lords Act 1999 abolished most of the hereditary peers.
• The Commons: Elected through a ‘First Past the Post’ method in
single seat constituencies.
Only one of the 3 components of the Crown-in-Parliament is
democratically elected
The Democratic Basis of the House of
Commons: First Past the Post
Voters place an X beside ONE candidate.

The candidate with the most votes wins.

Therefore, a candidate can win a seat even though
the majority of people in that constituency did not
vote for them.

Eg: There are 5 candidates for a seat.

Candidate 1: 25%
Candidate 2: 20%
Candidate 3: 20%
Candidate 4: 20%
Candidate 5: 15%

75% of constituents did not vote for Candidate 1.

 The Democratic Basis of the House of
Commons: First Past the Post
• House of Commons elected using First Past the Post method of voting in a single seat constituency.
• Note: a referendum to change the voting system called an “Alternative Vote” was defeated in 2011 .

General Election 2017 General Election 2015

0.6 0.6

0.5 0.5

0.4 0.4

0.3 0.3

0.2 0.2

0.1 0.1

0 0
Conservatives Labour Liberal Democrats SNP Conservatives Labour Liberal Democrats SNP UKIP

Percentage seats won Percentage vote Percentage seats won Percentage vote
 The Democratic Basis of the House of
Commons: First Past the Post Note: Many political parties in the UK
General Election Result 2019
only run in one of the constituent
60 parts. This is particularly pronounced
in Northern Ireland.
50

40

30

20

10

0
Conservative Labour Lib Dems Brexit Party Green SNP

Percentage Seats won Percentage Votes

The Scottish National Party (SNP) only runs in Scottish

constituencies. It received 45% of the vote in these constituencies,
winning 81% of seats.
Safe seats

In 2017, only 223/650 seats had a winning margin of <20%.

Source: http://researchbriefings.files.parliament.uk/documents/CBP-7979/CBP-7979.pdf
Origins of Parliamentary Sovereignty:
Monarch v Parliament
Central legal question of the Civil War ... “Whether the King was above the
law (as the divine rights theory so beloved by the Stuarts would suggest) or
whether the law was above the King and able to impose enforceable limits
upon him.” – E Wicks, The Evolution of a Constitution: Eight Key Moments
in British Constitutional History (Hart Publishing, 2006) 19.
Prior to the “Glorious” Revolution, the monarch claimed to be able to:
• Legislate by way of proclamation;
• Levy taxation without parliamentary approval;
• Use prerogative powers to unilaterally suspend laws.
Bill of Rights 1689; Act of Settlement 1701
Origins of Parliamentary Sovereignty
Bill of Rights 1689: Key Features
• Monarch may not suspend or execute laws without the consent of Parliament.
• Unlawful for the monarch to use the prerogative to levy taxes.
• Monarch cannot raise an army without the consent of Parliament.
• Guaranteed free elections to Parliament.
• Protection of freedom of speech for members of Parliament.
• Required that Parliament meet frequently.
Act of Settlement 1701: Key features
• Stated that the Crown pass to the descendants of Princess Sophia of Hanover.
• Stated that future monarchs be of the established Church of England.
• Mechanisms for judicial independence.
• Held that a Royal pardon cannot serve as a defence to parliamentary impeachment.
Parliament emerges as victor in the struggle against the Crown
Dicey’s conception of
parliamentary sovereignty
“…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 set aside the legislation of
Parliament.”
– AV Dicey, Introduction to the Study of the Law of the
Constitution
Unpacking the traditional doctrine
• Parliamentary Sovereignty has implications for the UK’s approach to
international law.
“For us, an Act of Parliament duly passed by the Lords and Commons and
assented to by the King, is supreme, and we are bound to give effect to its
terms”
---Mortensen v Peters (1906)14 Scots LTR 227 [High Court of Justiciary,
Scotland]
• Parliament therefore can legislate contrary to international law.
• UK takes a ‘dualist’ approach to international law; i.e. an international
agreement is not binding in domestic law until Parliament incorporates it.
Aspects of Dicey’s Conception
of Parliamentary Sovereignty:
The Positive Aspect

• Positive Aspect: That Parliament has the right to make or unmake any
law whatsoever. There are no legal restraints on what laws Parliament
can or cannot enact.
“If a legislature decided that all blue-eyed babies should be
murdered, the preservation of blue-eyed babies would be illegal…”
(AV Dicey)
• Negative Aspect: That no person or body is recognised by the law of
England as having the right to override or set aside the legislation of
Parliament.
• Theory of Continuing Sovereignty: No Parliament can be bound by
another Parliament.
• Is this not itself a limit on Parliamentary Sovereignty? This Photo by
Aspects of Dicey’s
Conception of
Parliamentary
Sovereignty: The
Positive Aspect
Unpacking the Traditional Doctrine
• The lack of legal constraints on Parliament
‘"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.’
—Madzimbamuto v Lardner-Burke [1969] 1 AC 645,723 (Lord Reid)

Constraints therefore are political, rather than legal

“If a legislature decided that all blue-eyed babies should be murdered, the preservation of
blue-eyed babies would be illegal…but legislators must go mad before they could pass such
a law, and subjects be idiotic before they could submit to it.” — Sir Leslie Stephen
Distinction between ‘legal sovereignty’ and ‘political sovereignty’.
Legal v Political constraints
on Parliamentary Sovereignty
 Can
Parliament
bind itself?

This Photo by Unknown Author is licensed under CC BY-NC-ND

Can Parliament Bind Itself?
• Theory of continuing sovereignty: Each Parliament is created anew
with the same powers as the previous Parliament – Diceyan/
Orthodox Theory
• Lex posterior derogate priori (the later statute supersedes the older statute).
V
• Self-Embracing Sovereignty: Parliament can place some limitations on
itself. Parliament may find itself bound to adhere to previous
enactments regarding the manner in which legislation is enacted and
the form that such legislation might take.
• Because parliament can change the rules that affect itself, parliament’s
sovereignty embraces itself; i.e. it is self-embracing.
Can Parliament bind itself?
Ellen Street Estates v Minister of Health [1934] 1 KB 590, 597
“If in a subsequent Act, Parliament chooses to make plain that an earlier statute is
being to some extent repealed, effect must be given to that intention just because it is
the will of the legislature.”– Maugham LJ

Dean of Ely v Bliss (1842) 5 Beav 574, 582

“If two inconsistent Acts be passed at different times, the last must be obeyed, and if
obedience cannot be observed without derogating from the first, it is the first which
must give way…Every Act is made either for the purpose of making a change in the law,
or for the purpose of better declaring the law, and its operation is not to be impeded by
the mere fact that it is inconsistent with some previous enactment.”– Lord Langdale
Continuing sovereignty approach affirmed
NOTE THE DATES OF THESE CASES
Can an Act of Parliament be protected from
future repeal?
Ellen Street Estates
• S7 of the Acquisition of Land (Assessment of Compensation) Act 1919
appeared to suggest that future legislation would only take affect subject to
its provisions and future inconsistent legislation would have no effect.
• Provisions of the Housing Act 1925 appeared to clash.
Which Act prevails?
“The legislature cannot, according to our constitution, bind itself as to the form
of subsequent legislation, and it is impossible for Parliament to enact that in a
subsequent statute dealing with the same subject-matter there can be no
implied repeal.”– Maugham LJ
1925 Act prevailed and continuing sovereignty approach affirmed
Can Parliament Bind Itself? Self-Embracing
Sovereignty
Theory: that Parliament can place some limitations on the use of its own powers. The power to
change law includes the power to change law affecting Parliament itself (self-embracing).
• Procedural changes to how (the manner) its power is exercised, rather than limits on what
its power can do. E.g. a statutory requirement that a policy area requires a referendum
before effective legislation on that topic.
Section 1 Northern Ireland Act 1998: It is hereby declared that Northern Ireland in its
entirety remains part of the United Kingdom and shall not cease to be so without the
consent of a majority of the people of Northern Ireland voting in a poll held for the
purposes of this section…
• Limitations on the form on which legislation ought to take. i.e. that a particular formula of
words is required in order to repeal a statutory measure.
Section 33(1) Canadian Charter of Rights and Freedoms (The Notwithstanding Clause):
Parliament or the legislature of a province may expressly declare in an Act of Parliament or
of the legislature… that the Act or Provision thereof shall operate notwithstanding certain
of the substantive protections afforded by the Charter.
AG for New South Wales v Trethowen [1932]
AC 526– Australian Case
• Legislature of New South Wales enacted legislation in 1929 stating that any future bill
which proposed to abolish the Legislative Council (upper house of NSW parliament) would
not be granted royal assent unless and until a referendum was held.
• 1930: General Election and Legislature sought to repeal the 1929 Act and abolish the
Legislative Council without a referendum.
• Privy Council: 1929 Act prevailed.
• NOTE: Trethowen was a case involving a limited legislature as distinct from a sovereign
Parliament such as the UK’s.
• However, Jennings interpreted Trethowen as shedding light on what UK courts might do.
• View of Parliamentary sovereignty as not what Parliament can do but what will courts recognise as
statute law.
• Parliamentary sovereignty as a doctrine explaining the relation between different constitutional
institutions.
AG for New South Wales v Trethowen [1932]
AC 526– Australian Case
• Legislature of New South Wales enacted legislation in 1929 stating that any future bill
which proposed to abolish the Legislative Council (upper house of NSW parliament) would
not be granted royal assent unless and until a referendum was held.
• 1930: General Election and Legislature sought to repeal the 1929 Act and abolish the
Legislative Council without a referendum.
• Privy Council: 1929 Act prevailed.
• NOTE: Trethowen was a case involving a limited legislature as distinct from a sovereign
Parliament such as the UK’s.
• However, Jennings interpreted Trethowen as shedding light on what UK courts might do.
• View of Parliamentary sovereignty as not what Parliament can do but what will courts recognise as
statute law.
• Parliamentary sovereignty as a doctrine explaining the relation between different constitutional
institutions.
Can Parliament redesign itself?
• “…if from that [the parliamentary roll] 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 progress in its various stages through both
Houses’.– Edinburgh and Dalkeith Railway Co. v Wauchope (1842) VIII
Clark and Finnelly 710, 725.
BUT
• Can the rules be changed so that legislation only needs to be
approved by the House of Commons?
Can Parliament redesign itself?
The Parliament Act 1911
 Can Parliament redesign
itself? The Parliament Act
1911
• Background: Legislative impasse between the House of Commons and the
House of Lords. Prior to the enactment of the Parliament Act 1911, the House
of Lords had substantial powers to delay or reject legislative proposals from
the House of Commons.
Increasingly democratic chamber v unelected hereditary chamber
• Conservative dominated House of Lords frequently frustrated major measures
put forward by various Liberal Governments.
• ‘The House of Lords has for a long period been the habitual and vigilant
enemy of every Liberal government’– William Gladstone (1884)
• E.g. Government of Ireland Bill 1893 (Second Home Rule Bill). Irish Home
Rule was the most contentious issue of the day. The “Brexit” of the late
19th and early 20th century.
• 1909 ‘Peoples Budget rejected’.
• Liberal Government sought to persuade the King to appoint new members to
the House of Lords and ‘pack’ it with Liberal-supporting Lords’.
• Under this threat, the House of Lords was persuaded to support a reduction in
its legal powers.
Can Parliament redesign itself? The
Parliament Act 1911 and 1949
• Lords’ powers to delay Money Bills– bills which concern taxation by central
government or certain issues relating to public finances– limited to one month.
• Power to veto Public Bills (other than Money Bills or bills purporting to extend the
life of Parliament beyond 5 years) was removed and replaced with a power to delay
legislative proposals only for a period of 2 years. This power to delay was reduced to
a period of 1 year by the Parliament Act 1949.
• Parliament Act 1949 was itself passed using the Parliament Act 1911 procedure.
• Maximum life of Parliament reduced from 7 to 5 years.

• S2.1 of the Act provided that any Public Bill (other than Money Bills or bills
purporting to extend the life of Parliament beyond 5 years) following its rejection in
two successive sessions by the House of Lords becomes an Act of Parliament.
Acts passed under the Parliament Act
1911 (i.e. not endorsed by the House of
Lords)
• Welsh Church Act 1914
• Government of Ireland Act 1914– the Third Home Rule
Bill
• Parliament Act 1949.
Acts passed under the Parliament Act 1911 as amended
• War Crimes Act 1991
• European Parliamentary Elections Act 1999
• Sexual Offences (Amendment) Act 2000
• Hunting Act 2004
Jackson v Attorney General [2006] 1 AC 262
• Facts: Appellants challenged the legal validity of the Hunting Act 2004 which makes it
an offence to hunt a wild mammal with dogs save in limited circumstances.
• 2003 Bill passed the Commons with a majority of 208 but rejected by the Lords by a majority of
212 in October 2003.
• Identical bill passed by the Commons in 2003 was reintroduced in September 2004; rejected by
the Lords in November 2004.
• Lords and Commons unable to come to an agreement before the end of the Parliamentary year
so Speaker of the House of Commons, Michael Martin, invoked the Parliament Acts 1911 and
1949.
• Hunting Act 2004 enacted without approval of the House of Lords
• Appellants challenged the Legality of the Parliament Act 1949 which was itself
enacted using the procedure established by the Parliament Act 1911.
“…the real question turns on the validity of the 1949 Act and that in turn depends on
the true effect of the 1911 Act.”– Lord Bingham
 Jackson v AG
Appellant’s argument:
1. The Parliament Act 1911 set down a procedure for making delegated or subordinate
legislation (e.g. like the legislation that the devolved institutions can make). N.B. Courts
CAN find delegated legislation invalid.
2. As the Parliament Act 1949 was enacted under the legislative procedure set down by the
1911 Act, it was delegated legislation and therefore courts could find it invalid. A
delegated body’s power cannot exceed the power of the body which delegated the
power to it in the first place.
3. As it is impossible for delegated legislation to amend the parent act, the 1949 Act was
‘ultra vires’ as the 1911 Act could not be used to amend itself.
4. Therefore, every act passed under the Parliaments Act as amended in 1949 was not only
delegated legislation but also invalid because the Parliament Act 1949 was itself invalid.
5. Therefore the Hunting Act 2004 is invalid.
Orthodox Theory of Parliamentary Sovereignty
Jackson v AG
Attorney General’s Argument
1. Parliament Act 1911 created a new method of creating legislation– as per
s.2(1) of the 1911 Act which refers to an “Act of Parliament”.
2. This is evidenced by the fact that Acts of Parliament passed under the
Parliament Act as amended in 1949 have been accepted by constitutional
actors for over 50 years. “… questions of law blend into those of political
fact.”
3. Therefore when Parliament enacted legislation using the procedure in the
Parliament Act 1911 as amended by the 1949 Act it was primary
legislation and therefore courts could not find it invalid.
“ A new method” = Manner and Form Theory of Parliamentary Sovereignty
Jackson v AG: Judgment
1. Did the courts even have jurisdiction in the first place to hear a
challenge to the validity of legislation?
• Pickin v British Railway Board [1974] AC 765: “the courts in this country have
no power to declare enacted law to be invalid”. (Lord Simon at p798).
• Pickin sought to inquire into the internal workings of Parliament and to argue
that Parliament had been ‘misled’ and proceeded on a false basis. Illegitimate
for a court to do this.
• Jackson concerned a question that Parliament itself could not decide–
namely, whether these Acts are ‘enacted law’. Therefore courts should resolve
it.
Pickin distinguished; court did have jurisdiction to hear the case.
 Jackson v AG: Judgment (ctd)
• Attorney General’s submission endorsed. Parliament Act 1911 did not have
any limitations preventing it from being used to enact the 1949 Act.
• 1911 Act had been validly amended by the 1949 Act and therefore all
subsequent Acts enacted in accordance with the procedure laid out in the
1949 Act were valid.
• Hunting Act 2004 upheld.
• Note: Court of Appeal distinction of ‘fundamental constitutional changes’
that could not be implemented using the Parliament Acts rejected.
• But 7 judges did suggest that the Parliament Acts procedure could not be use to
pass a statute extending the life of Parliament.
Is Jackson evidence for the self-embracing theory of Parliamentary Sovereignty?
Jackson v Attorney General: Obiter Dicta
remarks on Parliamentary Sovereignty
• Obiter Dicta: a part of a judgment that expresses a judicial opinion
that is not binding as precedent as it was not necessary to decide the
case.
• Ratio Decidendi: the binding part of a judgment that courts must
follow. The part of the judgment that was fundamental to deciding
the case.
• Jackson contains a number of obiter statements from the various
judges suggesting that there may be substantive limits to what
Parliament can do.
HOWEVER, THESE ARE NOT BINDING!!!
Jackson v Attorney General: Obiter Dicta
remarks on Parliamentary Sovereignty
“…it is not unthinkable that circumstances could arise where the courts
may have to qualify a principle established on a different hypothesis of
constitutionalism. In exceptional circumstances involving an attempt to
abolish judicial review or the ordinary role of the courts.. a new
Supreme Court may have to consider whether this is a constitutional
fundamental which even a sovereign Parliament acting at the behest
of a complaisant House of Commons cannot abolish.” – Lord Steyn
[102]
OBITER
Jackson v Attorney General: Obiter Dicta
remarks on Parliamentary Sovereignty
“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 ... is being
qualified ... The rule of law enforced by the courts is the ultimate
controlling factor on which our constitution is based. 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.” – Lord Hope
[104]
OBITER
Recent Obiter Dicta Remarks on Substantive
Limits to Parliamentary Sovereignty
• R(on the application of Privacy International) v Investigatory Powers Tribun
al
[2019] UKSC 22 : whether s68(7) of the Regulation of Investigatory Powers
Act 2000 prevented judicial review of the decisions of the Investigatory
Powers Tribunal– a so-called ‘ouster clause.’
• Lord Carnwath, (Lady Hale and Lord Kerr in agreement):
“I see a strong case for holding that, consistently with the rule of law, binding effect
cannot be given to a clause which purports wholly to exclude the supervisory
jurisdiction of the High Court to review a decision of an inferior court or tribunal,
whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of
the words used, it should remain ultimately a matter for the court to determine the
extent to which such a clause should be upheld, having regard to its purpose and
statutory context, and the nature and importance of the legal issue in question; and
to determine the level of scrutiny required by the rule of law.” [144]
Does parliamentary sovereignty require the rule of law?
 Challenges to Parliamentary
Sovereignty: The Supremacy of
EU Law

• “…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 set aside the legislation of
Parliament.”– AV Dicey
BUT
• What if an Act of Parliament comes into conflict with EU
Law? EU Law claims primacy over domestic law in all
Member States.
“… the Community constitutes a new legal order of
international law for the benefit of which the states have
limited their sovereign rights, albeit within limited fields,
and the subjects of which comprise not only member states
but also their nationals. Independently of the legislation of
member states, Community law therefore not only imposes
obligations on individuals, but is also intended to confer
Challenges to Parliamentary Sovereignty:
The Supremacy of EU Law
“The transfer by the states from their domestic legal system to the
Community legal system of the rights and obligations arising under the
Treat carries with it a permanent limitation of their sovereign rights,
against which a subsequent unilateral act incompatible with the concept
of the Community cannot prevail”.
Costa v ENEL
• Without the principle of the supremacy of EU law, member states could
frustrate the operation of EU law, thus defeating the purpose of the
Union in the first instance.
How does Parliamentary Sovereignty confront the Supremacy of EU
Law?
The Factortame Litigation
• [1990] 2 AC 85
• [1991] AC 603
• [1992] QB 680
• Facts: Dispute regarding (what is now) Article 49 Treaty on the Functioning of the
European Union (TFEU) which entitles EU nationals to establish businesses in any EU state.
HOWEVER
• Parliament enacted the Merchant Shipping Act 1988 to protect the British fishing industry
by preventing foreign nationals from exploiting British fish stocks.
• Court of Justice of the EU (CJEU) ruled that nationality restrictions imposed by the
Merchant Shipping Act 1988 were incompatible with Article 49; however, this judgment
would take some years before being delivered.
• In the meantime, the claimants asked the courts to issue an injunction that would disapply
the Merchant Shipping Act 1988 until the case was heard in full.
Factortame: Key questions
• Were the relevant provisions of the Merchant Shipping Act 1988
contrary to European law? YES (see CJEU)
• Do courts have the power to grant interim relief the effect of which
would be to suspend operation of an Act of Parliament? YES.
BUT
• Parliamentary sovereignty would appear to prevent the setting aside–
even temporarily– of primary legislation.
• “…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 set
aside the legislation of Parliament.” – AV Dicey
So WHY did the Court disapply the MSA 1988??
Factortame (No.2)– Lord Bridge (p 659).
… whatever limitation of its sovereignty Parliament accepted when it enacted the
European Communities Act 1972 was entirely voluntary. Under the terms of the Act of
1972 it has always been clear that it was the duty of a United Kingdom court, when
delivering final judgment, to override any rule of national law found to be in conflict with
any directly enforceable rule of Community law. Similarly, when decisions of the European
Court of Justice have exposed areas of United Kingdom statute law which failed to
implement Council directives, Parliament has always loyally accepted the obligation to make
appropriate and prompt amendments. Thus there is nothing in any way novel in according
supremacy to rules of Community law in those areas to which they apply and to insist that,
in the protection of rights under Community law, national courts must not be inhibited by
rules of national law from granting interim relief in appropriate cases is no more than a
logical recognition of that supremacy.
“Entirely Voluntary”
Note: Sparse analysis of this question.
Factortame (No.2): What does it mean for
Parliamentary Sovereignty?
• Wade: Factortame was a ‘judicial revolution’. The judges refused to do
what the old constitutional order required of them and instead shifted
their allegiance to the EU.
• But this does not align with Lord Bridge’s comments that legislation not some
judge-led revolution was the reason why the Court was disapplying the MSA 1988.
• Laws LJ: While Parliament cannot limit what it can do, it can require
future Parliaments to conform with certain formal conditions when
making law. (N.B. Manner and form)
• S2(4) ECA appears to suggest that EU law is superior to UK law rather than simply
laying out formal requirements as to what UK law must do to depart from EU law.
Analysis of parliamentary sovereignty in Factortame is sparse. We must therefore
rely upon academic commentary and subsequent case law and legal developments
to understand its basis and implications further.
 Making sense of Factortame? Thoburn v
Sunderland City Council: Constitutional Statutes
• Recall from last lecture that, generally speaking,
constitutional law is superior to statute law. How
Constitutional
then can statutes be constitutional? Law

• Also recall that there is very often a hierarchy of

norms within constitutions. For example, to resolve Statute Law
conflicts between different constitutional rights.
• Can we use this idea to recognise a hierarchy of
statutes? Common Law

• General rule of statutory interpretation: lex posterior

derogate priori (the later statute supersedes the
older statute).
Making sense of Factortame? Thoburn v
Sunderland City Council: Constitutional Statutes
Thoburn v Sunderland City Council [2003] QB 151
• “In the present state of its maturity the common law has come to recognise that there exist
rights which should properly be classified as constitutional or fundamental [...] And from this
a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it
were "ordinary" statutes and "constitutional" statutes. The two categories must be
distinguished on a principled basis. In my opinion a constitutional statute is one which (a)
conditions the legal relationship between citizen and State in some general, overarching
manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental
constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an
instance of (a) that is not also an instance of (b).” –Laws LJ
• Examples given by Laws LJ: the Magna Carta, the Bill of Rights 1689, the Acts of Union, the
HRA 1998, the Scotland Act 1998 and the Government of Wales Act 1998, and the
EUROPEAN COMMUNITIES ACT 1972 (non-exhaustive list).
Constitutional statutes are not assumed to be impliedly repealed
The idea of constitutional statues is one derived from the common law
Subsequent Developments
• R(HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3.
• Despite EU law’s claim to primacy over domestic law, this claim is ultimately a
function of the European Communities Act 1972. Due to this basis in the domestic law
of the UK, the supremacy of EU legislation could potentially be tempered by other
domestic constitutional principles of the UK, i.e. parliamentary sovereignty.
• Section 18, European Union Act 2011: Directly applicable or directly effective
EU law (that is, the rights, powers, liabilities, obligations, restrictions,
remedies and procedures referred to in section 2(1) of the European
Communities Act 1972) falls to be recognised and available in law in the
United Kingdom only by virtue of that Act or where it is required to be
recognised and available in law by virtue of any other Act.
“The Sovereignty Clause”
Subsequent Developments
Miller v Secretary of State for Exiting the EU [2017] UKSC 5
• “…this unprecedented state of affairs [disapplication of legislation as
was seen in Factortame] will only last so long as Parliament wishes:
the 1972 Act can be repealed like any other statute. For that reason,
we would not accept that the so-called fundamental rule of
recognition (ie the fundamental rule by reference to which all other
rules are validated) underlying UK laws has been varied by the 1972
Act or would be varied by its repeal.”
Subsequent Developments

This Photo by Unknown Author is licensed under CC BY

Post-Brexit Referendum Legislation
pertaining to EU Law (non-exhaustive list).
• European Union (Withdrawal) Act 2018
• Repealed the European Communities Act 1972.
• Required parliamentary approval for any withdrawal agreement negotiated
between the UK and EU.
• Created a new category of “retained EU law”– transposed directly-existing EU
law into UK law.
• Gave government ministers powers to make secondary legislation amending
certain provisions of this ‘retained EU law’– Henry VIII clauses.
• European Union (Withdrawal Agreement) Act 2020
• Incorporated the Withdrawal Agreement into Domestic Law.
 Parliamentary Sovereignty v
“The People”
• Can ‘the will of the people’ as expressed in a referendum
bind parliament?
Miller v Secretary of State for Exiting the EU [2017] UKSC 5
• EU Referendum Act 2015: set out the process for holding an
advisory referendum on the UK’s membership of the EU.
“Thus, the referendum of 2016 did not change the law in a
way which would allow ministers to withdraw the United
Kingdom from the European Union without legislation. But
that in no way means that it is devoid of effect. It means that,
unless and until acted on by Parliament, its force is political
rather than legal. It has already shown itself to be of great
political significance.” –[124]
• Question to consider: Has Brexit revealed a tension between
‘the People’ and their representatives in Parliament?
Parliamentary Sovereignty
v “The People”

“The emphasis on the judicial role in the changing constitution

is understandable given that parliamentary sovereignty has
been institutionally-orientated; however, in this constitutional
moment, the courts have taken a backseat role, re-affirming
the orthodox constitutional position of parliamentary
sovereignty, ignoring—rightly or wrongly— the emergence of
the People as a constitutional agent. Accounts of
constitutional crisis or change in the UK therefore that focus
solely on the rise of legal constitutionalism and the role of
the courts may miss the challenge to parliamentary
sovereignty being initiated by the People.”-- A Greene, When your lecturer cites their own research
‘Parliamentary Sovereignty and the Locus of Constituent
Power in the United Kingdom’ (2020) 18(4) International
Journal of Constitutional Law 1166, 1178.
Parliamentary Sovereignty: Conclusions
• Parliamentary sovereignty is a deceptively simple idea that belies a number of
complexities, some bordering on paradoxes.
• While the claim made by the Diceyan/Orthodox theory of parliamentary sovereignty
that Parliament can make or unmake any law it likes has not necessarily faced an
insurmountable challenge, Dicey’s second claim that ‘no person or body is recognised
by the law of England as having a right to set aside the legislation of Parliament’ must
be reappraised in light of Factortame.
• That stated, Parliamentary sovereignty is still the ‘apex norm of the British
constitution’. All major constitutional developments in recent decades, while stress-
testing parliamentary sovereignty, have still not led to its abandonment.
• The self-embracing theory of parliamentary sovereignty may provide a more clearer
understanding of parliamentary sovereignty today than the Diceyan/Orthodox theory.