PubL Lecture 4 ✅

Sunday 3 November 2024 22:35

PARLIAMENTARY SOVEREIGNTY

What does it mean?

Where does it come from?
• common law principle: judge-made law can be changed at any time
○ make the best out of the area of uncertainty
• A fundamental constitutional rule
• established by revolution: Bill of Rights 1689
• with no procedure for its removal or variation
○ could be changed, but only with revolution (violent/peaceful)
What does it mean: Dicey two aspects
1. Parliament can make or unmake any law whatsoever
2. no one can challenge the authority of legislation
Parliament is sovereign depending on how it speaks
• Act of Parliament: sovereign
• resolution of Parliament not sufficient:
○ Stockdale v Hansard (1838)
• H circulated paper > sued for defamation > republished by H, HoC sued again
• instructed H plead he had done under parliamentary privilege
• court rejected: court decides Parliament's privileges
• Parliamentary Methods Act 1840: absolute privilege for all materials published w/ Parliament authority
○ Bowes v Bank of England (1913)
• finance minister increase taxes > passed, immediately affect
• applicant financial disadvantage
• unlawful: raising taxes, not proceed with resolution alone
Argue Act of Parliament invalid: not follow proper procedure
• 19C legislative authority to railway companies buying private lines > Private Acts of Parliament
○ landowners felt cheated, companies petition before legislation was passed
○ court: if bill appears in Parliamentary roll, court cannot question validity of Act
• Pickin v British Railways Board (1968)
○ legislation: revert land to owners if no longer needed for railway
○ BRB sponsored legislation preventing land reverted, failed to notify Pickin
○ Lord Denning: fraud on Parliament > courts should question
○ senior judge reaffirmed 19C rule
○ Parliament can always pass another bill to repeal legislation, not courts
How does it compare /Contrast with constitutional arrangements of other countries
• US Supreme Court has power to strike down legislation (hierarchy of rule)
○ Buckley v Valeo (1976)
• 1974 Congress: parties reveal identity of donors, cap amount of funding, cap candidate spending, create
Federal Election Commission
• violation of First Amendment (free speech) > Supreme Court struck down provision
• court power to
• strike down legislation that interferes democratic process,
• read Constitution terms widely
• Marbury v Madison, 1 Cranch 137 (1803)
Parliamentary vs Political sovereignty - Jennings
Bingham, 'The Rule of Law and the Sovereignty of Parliament' (2008) 19 King's Law Journal 223 EU, Devolution, HR,
Common Law
• legal principle may be out of touch with political reality
○ wide legal authority, severe political constraints
○ Liz Truss finance minister: right wing budget > financial consequences > loss of confidence
Function and corruption of Parliamentary sovereignty
• debate on restraining Parliament and executive power
○ people's representatives are unconstrained with what they do in the interests of people
○ legal sovereignty reinforces more fundamental principle of popular sovereignty
a. in the Westminster system of government
b. in a liberal democracy
The Principle Illustrated
Only Parliament can make law
• Case of Proclamations (1611) 12 Co Rep 74
○ royal proclamation to prohibit building in parts of London
○ Chief Justice Cook: Parliament gives King authority, King cannot do anything himself
• King has no prerogative but that the law allows
• Cannot change common law or create new offence
• R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5
○ TEU Article 50: exiting EU, give 2 years' notice
 ○ PM doesn't have authority on its own behalf without Parliament
○ withdraw from EU > affect operation in UK of EU Law > authority by European Communities Act 1972
○ government cannot use prerogative power to do something that affect operation of legislation
○ result: EU Notification Withdraw Act 2017
Constitutional change
• His Majesty's Declaration of Abdication Act 1936 (Edward VII/ George VI)
○ Edward persuaded to abdicate because he married with divorced woman
○ provision for changing line of succession to the throne
• Parliament Acts 1911 - 49
○ progressive government budget vetoed by HoL
○ Parliaments Act 1911 reduced HoL power: no veto
• Lords had to approve because of threat to place Liberal majority
○ 1949 delay legislation from 2 years to 1
• Jackson v Attorney General [2005] UKHL 56
○ Hunting of Dogs Act 2004: unlawful to take part in fox hunting
○ Parliaments Act of 1949 illegal: violation of fundamental principle
• person cannot extend scope of power outside authority
○ anything passed under 1949 Act unlawful > Hunting Act unlawful
○ Parliament is sovereign, whatever it says must be given effect
Territorial surrender
• Statute of Westminster 1931, s 4
○ Westminster Acts should not extend to any Dominion territories without consent
• Government of Ireland Act 1949
○ Irish Republic cease to be part of UK
Devolution of power
• Parliament can always take back: legal foundations powerful as long as political conditions allow them
• Government of Wales Act 1998, Wales Act 2014
• Scotland Acts 1998, 2016 s 28(7)
○ 2016 Scottish gov as permanent features of UK gov, Scottish Parliament abolished only by referendum
○ (7) retain Westminster power to legislate for Scottish, (8) not without consent
• devolution to N Ireland 1921, rescinded 1973, given back 1978
Retrospective, indemnity and extra-territorial legislation
• retrospective: render something unlawful which was lawful at the time it was done
• Burma Oil v Lord Advocate
○ WWII British ordered to destroy Burma Oil Company
○ Burma asked for compensation
○ judicial decision overturned: royal prerogative for war effort
○ look quite greedy, deserving Parliament penalty (no limit to punishments)
• power we recognize + right to determine extent
• War Damage Act 1965
○ no one is entitled to compensation for damage of property in time of war
○ apply prospectively + retrospectively
○ applied to Burma case
• extraterritorial: legislate for another country
○ Jennings: offence under English law to smoke in streets of Paris
• War Crimes Act 1991
○ first time Parliament Act 1949 used (passed without Lords consent)
○ offence for foreign national to murder/manslaughter another on foreign soil
Subject to the provisions of this section, proceedings for murder, manslaughter or culpable homicide may be brought
against a person in the United Kingdom irrespective of his nationality at the time of the alleged offence if that offence
—
(a) was committed during the period beginning with 1st September 1939 and ending with 5th June 1945 in a place
which at the time was part of Germany or under German occupation; and (b) constituted a violation of the laws and
customs of war.
Unconstrained by international law
• can legislate in breach of international law
• Mortensen v Peters (1906) 8 F (J) 93
○ violated Herring Fishing Act 1889, but in international waters
○ Parliament passed Act to extend into Moray Fifth and North Sea
○ Parliament can make any laws, courts have to enforce
• Cheney v Conn [1968] 1 All ER 779
○ farmer refused to pay income tax, to object to nuclear weapon production
○ nuclear deterrent breach of international law
Unconstrained by constitutional conventions
• Madzimbamuto v Lardner Burke [1969] 1 AC 645
○ Southern Rhodesia unilaterally declared independence
○ legislation led to internal conflict, imprisoned activists
○ Southern Rhodesia Act of 1965: unconstitutional
 • Lords: unconstitutional to breach convention, but not unlawful to legislate in breach of convention
○ Parliament is not bound by conventions, can act in unconstitutional way
• R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5
○ cannot be restrained by convention