LAW 1021

Parliamentary Sovereignty

The principle that Parliament has absolute legal authority – that Parliament is the supreme
legislative body in the UK and no other institution can challenge, overturn or overpower their
decision or laws. The idea that it is the ultimate law-making body. There is a mechanism of
accountability in that we vote for MPs. We can elect or remove MPs from their position depending
on our votes.

Context: ‘Glorious Revolution’ of 1689. John Locke stated that “in all cases, […] the legislative
is the supreme power…” When an institution has the power to make laws, what other power can
challenge or overturn them?

Dicey on Sovereignty:

The principle that Parliamentary sovereignty means that Parliament, under the English constitution,
has the right to make and unmake any law; and no person or body is recognised by the law of
England as having the right to set aside the legislation of Parliament.

1. Parliament’s legislative competence

2. Validity of an Act of Parliament cannot be challenged
3. Parliament cannot limit future parliaments (you cannot pass a piece of legislation while in
Parliament binding or restricting what future MPs and PMs are able to do – you can’t pass a
piece of law that will be upheld by future Parliaments and continue that policy because each
Parliament is supreme)

Legislative Competence:

 Built from the idea of omnicompetence – can make any kind of law.
 Jennings – ‘If the [UK Parliament] enacts a law that smoking on the streets of Paris is an
offence, then it is an offence.’
 AXA v Lord Advocate (2011) UKSC 46 – Supreme Court suggested there may be limits to the
doctrine and where an Act of Parliament goes beyond the pale, the Court may be prepared
to intervene.

Which laws are covered by Parliamentary Sovereignty?

Primary Legislation (Acts of Parliament and/or Bills)

 Not ‘resolutions’ of a House

 Not secondary legislation

The Courts cannot challenge an Act of Parliament, providing that Act of Parliament has been passed
correctly.

The Railway Cases and Enrolled Bills Cases

If an Act of Parliament has been passed properly and correct procedures have been followed, the
Courts cannot investigate it. The following two cases:

Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 CI & Fin 7 10

Pickin v British Railways Board (1974) AC 765

‘It would be impracticable and undesirable for the High Court of Justice to embark upon an enquiry
the effect of the effectiveness of the internal procedures in the High Court of Parliament or an
enquiry in any particular case those procedures were effectively followed.” – Lord Morris

Saying that Courts would be overstepping and acting out of their power to investigate and
come knocking on Parliament’s door with every Act of Parliament passed. They cannot interrogate
how an Act becomes passed provided it was passed correctly.

Repealing Acts of Parliament:

Key Point: Dicey and legislative competence – Parliament cannot limit, bind or restrict
future Parliaments

Future Parliaments can repeal the decisions made and laws passed by their predecessors.

Ellen Streets Estates case (1934) – high-water mark of Parliamentary Sovereignty – absolute
unwillingness to restrict future parliamentary sovereignty.

Two different ways acts of primary legislation can be repealed:

1. Express Repeal: when a new law is passed that completely replaces the previous statute.
E.g. when devolution was given to Wales in 1998, that Act was replaced and repealed in a
later 2006 Act.
2. Implied Repeal: where a later statute conflicts with a prior statute. Not necessarily repealing
like Government of Wales Act 2006, but what you’re proposing doesn’t sit comfortably with
a previous statute. Means that Courts will apply the later statute as opposed to the first one
– the later statute takes precedence as the prior one has been superseded.

Repeal and ‘Constitutional Statutes’:

NB: not all Acts of Parliament have constitutional importance

Constitutional Statute – something that affects the relationship between people and the powers that
govern us (State).

Examples given by LJ Laws: Magna Carta, Bill of Rights 1689, Act of Union, Reform Acts, etc.

Thoburn v Sunderland City Council

‘Manner and Form’ restrictions:

Some academics argue that what is known as ‘manner and form’; an idea that Parliament can, in
certain circumstances, implement some acts of restrictions on future Parliaments. Perhaps some
suggestion that you can limit what future Parliaments can do with some Acts passed, e.g. the future
Parliament has to meet three certain criteria if they want to touch this Act.

Cases significant to PS:

R (Jackson) v Attorney General [2005]

Arguments as to whether foxhunting is a barbaric sport that should be banned, or whether it’s a
traditional way of life that sustains rural life. Very divisive issue. As a result, Hunting Act 2004 got
passed, but it didn’t get approved by the House of Lords (Acts must be passed by both House of
Commons and House of Lords). Under certain circumstances, a piece of legislation that has been
passed in the House of Commons can become legislature without the consent of the House of Lords
(Parliaments Acts of 1911 and 1949). Was this okay, and lawful that the government effectively
circumnavigated the consent of the HoL, and as a result, was the Hunting Act 2004 passed lawfully?

Parliament Act of 1949: basic idea states that if an Act is passed in the House of Commons twice and
is passed, and it goes through the House of Lords twice and is rejected, on that second rejection,
that piece of legislature can bypass the House of Lords and gain royal assent to become a law.

So in 2004, the applicant (Jackson) claimed that the Hunting Act 2004 was made unlawfully as it was
not passed by the House of Lords. He claimed that the Parliament Act of 1949 was unlawfully assed
to allow Bills to be automatically passed after a year of no approval by House of Lords.

Courts ruled that the Act was, in fact, lawful.

Implications of accepting PA 1949:

Maybe demonstrates that Parliament is no longer sovereign, and we are starting to chip
away at Parliamentary sovereignty.

Human rights (next week)

Devolution to Scotland, Wales and Northern Ireland

Membership of European Union