The Legislative Supremacy of the UK Parliament

The ‘sovereignty’ or ‘legislative supremacy’ of the British Parliament has evolved over many centuries as the result of a combination of changing expectations of the relationship between Parliament and the monarch/crown/Executive/government. The development has taken place through a combination of decisions by the courts and Acts of Parliament. The doctrine continues to evolve.

Statues CasesDr Bonham’s case 1610

Bill of Rights 1688Edinburgh and Dalkeith Rly v Wauchope 1842

Parliament Acts 1911, 1949Ellen Street Estates v Minister of Health 1934Cheney v Conn 1968Anisminic v Foreign Compensation Commission 1969

European Communities Act 1972 s2, 4Factortame II 1991

Scotland Act 1998, s. 28(7)Northern Ireland Act 1998 s.5(6)Human Rights act 1998, s4, 10, 19 (eff. 2000)

Thoburn v. Sunderland city council 2001Jackson v Attorney-General, 2005

Dr Bonham’s case, 1610

Here, CJ Coke said that if an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, then the common law would control it.

Bill of Rights 1689

The first real introduction of the idea of parliamentary sovereignty Replaced the Royal Prerogative in terms of primacy of ‘statute’

Edinburgh and Dalkeith Rly v Wauchope, 1842

This regarded a challenge to a private Act of Parliament on the basis that parliament had not followed its own formal procedures and thus the act was invalid

The courts held that as long as an Act has been passed through both Houses and achieved the Royal Assent, its method of travel through Parliament cannot be questioned by a court of law

Parliament Acts 1911 and 1949 The essential rule before 1911 (and it still is the basic rule) is that any Act which has been

passed by both houses of Parliament and received the royal assent is a valid act of parliament and cannot be struck down by any other body.

The first Parliament Act essentially reduced the veto of the HL into a delaying power for up to 2 years

The 1949 Parliament Act further reduced the delaying power to 1 year.

Ellen Street Estates v Minister of Health, 1934 Here, an Act passed in 1919 attempted to bind any future Acts regarding the same area to its

rules

However, this was contrary to the idea of Parliamentary Sovereignty and the idea that Parliament can alter any previously enacted Act.

Thus, the doctrine of implied repeal came about where in the event of a provision in an Act conflicting with that in another Act, the later one prevailed and would impliedly repeal the earlier

Cheney v Conn, 1968

A taxpayer (cheney) and a pacifist attempted to deny paying income tax on the basis that the money was going towards the construction of nuclear weapons which was illegal in international law

However, the court held that “what the statute itself enacts cannot be unlawful, it is the highest form of law that is known to this country” and thus international law was of no issue and neither was morality.

Anisminic v Foreign Compensation Commission, 1969 Although statutes are not questionable through the courts, Public Bodies created through

statute are held by the courts to the limits of their statutory powers Here, the HL struck down a decision of the FCC as being ultra vires and outside of its

jurisdiction This was despite the fact that there was a statutory provision that a determination by the

commission should not be called in question by any court of law. Here we can see a limit on Parliamentary Sovereignty and one of the various ‘checks and

balances’ on Bodies it creates. It shows the courts willingness to resist the strongest attempts of government to exclude the judiciary from reviewing executive decisions.

Here, the courts did not give effect to the intention of Parliament. It is worth noting that the HL was careful not to attempt to undermind the doctrine of PS and

said they were merely interpreting legislation. They rejected the claim by saying “in the phrase the determination of the fcc should not be called into question” a determination (decision) can only mean a legally valid determination not an illegal or completely invalid determination.

(note: another good example of the will of parliament not being given effect to is ex p Smith)

European Communities Act 1972 s2, 4

A clear and direct challenge the idea of Parliamentary Sovereignty, in that laws issued by the Community have supreme authority in all Member States. This is a voluntary limitation to governments own sovereign powers.

U.K. legislation, including Acts of Parliament have effect subject to authoritative provisions of Community Law.

However, as this Act is just like any act of parliament it can at any time be repealed by the Government. This means more of a lending of power as opposed to a permanent restriction of sovereignty.

Also the Act only confers the power to legislate on very specific areas, all over fields remain the domain of Parliamentary Sovereignty.

Not a true limit on Parliamentary Sovereignty? A self inflicted limit which could be repealed at any time?

Or only a theoretical sovereignty, when in practice it only really makes or unmakes law within the restrictions of the European Union?

And what happens if a some new European law was made and following that, the UK parliament passed an Act which did not agree. Would implied repeal apply? This question was addressed in Factortame II

Factortame II, 1991

Factortame – each eu state gives up it’s right to decide who fishes in which territorial area and how much fish could be caught. Common fisheries policy – limit to number of tonnes of each type of fish that could be caught. The quota was divided amongst countries in the eu. However, a number of Spanish owned fishing vessels registered in the uk, thus claimed they were uk vessels and fished against the uk quota thus there were less fish to be fished for the british fisherman. They got parliament to pass an act, the merchant fishing act, to impose it’s own definition about what counted as a british fishing vessel and that definition could not be met by the Spanish fishing vessels. The factortame co. Which owned some of these Spanish vessels, challenged the legality of this act. When this reached the courts, the courts were in a difficulty. Could they decide that the british merchant act was against eu law? The other was that the factortame co. Were asking to be granted an injunction against hte minister of transport asking him to stop cancelling registrations of Spanish fishing boats until the case was determined.

Factortame litigation

On a reference for a preliminary ruling from the House of Lords in Factortame I the ECJ stated that:

….where the sole obstacle to a national court granting interim relief is a rule of national law (i.e. in UK that the court cannot grant an [interim] injunction against the Crown), the national court must set that rule aside.

The House of Lords decided in Factortame II therefore (a) to reverse the UK rule that [interim] injunctions cannot be awarded against the Crown where EC law is concerned and (b) that on the balance of convenience an interim injunction suspending the MSA (merchant shipping act) 1988 should be awarded. Ld Bridge noted that the UK knew this was the position and agreed to it when we joined the EC.

Thus they were saying in effect that they knew there was this act but it might be in contravention to EU law thus it might make sense on the balance of convenience to overturn it. They did this basis on the fact that we knew what we were signing up to when we joined the European communities.

In M and the home office, the court decided that it was okay to grant interim injunctions even against the crown even in respect to non-European cases.

In summary,

Here the HL acknowledged an obligation to comply with a principle of community and, and to deny effect to the terms of an Act of Parliament

Thus it was concluded that a later Act of Parliament would yield to a conflicting EC Act non withstanding that it had come later

This was therefore a limitation on the doctrine of implied repeal The EC Act not only binds previous legislation but, as long as the UK is a member of the EU,

all future legislation as well.

Scotland Act 1998, s28(7) and Northern Ireland Act 1998 s5(6)

Scottish parliament is given wide ranging powers. (There were however many reserved powers as well) Regardless, s28(7) specifically asserts the continued power of the UK parliament to legislate in respect of Scotland.

Under the NI Act, Northern Ireland has an assembly that can pass acts. However, s5(6) gives the UK parliament the power to legislate authoritatively on all issued

Human Rights Act 1998 ss 3, 4, 10, 19• Subsections 3 and 4 provide that the courts have two options when dealing with legislature that is potentially incompatible with the Human Rights Act, either give effect in a way compatible with convention rights or declare it incompatible, but still giving it effect.

• The former option allows for more judicial interpretation, creating a greater limit to Parliamentary Sovereignty. If used in a very strict purpose, in that the only limit on it is if there is an express contradiction then this could be a major obstruction to the sovereignty of Parliament.• Section 10 allows for fast track remedial action by ministerial order to amend legislation incompatible with Convention Rights. Again showing a power which overrules that or Parliamentary Sovereignty, bowing to a higher previous law. Also allows for greater executive power, question mark over a separation of powersSection 19 requires a declaration of compatibility to be made.

Thoburn v. Sunderland City Council [2001] (the ‘metric martyrs’ case)• Here Laws LJ tried to make a distinction between ‘constitutional’ legislature and ‘ordinary’ legislation.• The former he declared could not be overridden through implied repeal, but only by the express words of Parliament, being so specific to be irresistible.• The latter however he deemed to be able to be changed through the doctrine of implied repeal.• Not yet to be adopted by the House of Lords, brings up many questions such as which legislation can be judged to be constitutional and leaves many ambiguities.• Attempt to limit the sovereignty by this artificial distinction, and protect certain Acts above others.

Jackson v. Attorney-General [2006]• This represented a challenge to the constitutional validity of the Hunting Act 2004, due to the fact that it had been passed using the Parliament Acts.• It had been claimed that because the Parliament Act 1949 and the new Hunting Act 2004 passed without the consent of the House of Lords, they were invalid.• The Court of Appeal claimed that changes so fundamental to the constitution could only be enacted with the full consent of Parliament. However this view was rejected by the House of Lords. It was the truly controversial Bills which the Parliament Acts had been implemented to enact measures of considerable controversy and constitutional importance.• Lord Hope and Lord Rodger both recognise the value of the courts in recognising the sovereignty of Parliament; they could potentially use the Rule of Law to not got effect to an Act.• Although the 1911 Parliament Act had protected against a change to the duration of Parliament, there was no protection that itself could not be amended. Therefore could the 1949 Act be used to change this rule? Lord Bingham said yes, Lord Nicholls said no. (Could only be passed by both Houses)• For Lord Bingham, there was no difference in Parliamentary Sovereignty in 1911 then there is today.• Steyn, Hope and Rodger all recognise that it is heavily qualified by both statute and common law.

10 March 2008 at 19:28 · Report