Parliamentary Sovereignty

[KALKI]

Parliamentary Sovereignty


Parliament is made up of the House of Lords, the House of Commons and the ‘Queen-in-Parliament’ and is ‘sovereign’ because it can make, unmake or alter any law it wishes by using Acts of Parliament. Parliament is in a very powerful position within the English legal system. No one can question the validity of Acts of Parliament (or statutes), not even the courts. However, it has been argued that since the United Kingdom became a member of the European Community (‘EC’), it has given away some of its sovereign power to make any law it pleases, because now, before it passes a law, it must look at European Law first and make sure its new law is consistent with the laws of the EC.

Below we will consider the nature of parliamentary sovereignty today and its relationship with European Community law. Prior to this, the origin of sovereignty will be considered briefly.


Origins of Parliamentary Sovereignty
The ability of Parliament to make, unmake or alter any law it pleases originates from the Middle Ages. Parliament, headed by the monarch, was able to change the previous common law by using Acts of Parliament. Up until the 1688, the monarch ruled Parliament and was able to make new laws through Acts of Parliament, which could not be challenged. After 1688, the struggles between the Monarch and Parliament lead to the enactment of the Bill of Rights in 1689. The powers of the monarch were limited, and the sovereign power of the body of Parliament over the Crown and the courts established. By the 18th century, it was widely accepted that

“the principle of Parliamentary sovereignty means...that Parliament thus defined has, under the English constitution, 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 override or set aside the legislation of Parliament”, A V Dicey, Law of the Constitution (1885).

The Nature of Parliamentary Sovereignty today
Parliament still retains the ability to make, unmake or alter any law it sees fit and no one, especially the courts, can challenge Acts of Parliament which have gone through the time-honoured process of enactment. This is illustrated by the case of British Railways Board v Pickin [1974] AC 765. The plaintiff alleged British Railways Board fraudulently misled Parliament when presenting a private Bill to it . As a result of the enactment of the Private Bill, he was deprived of a strip of disused railway land. He argued the private Bill was invalid because of the fraud involved and could be struck down by the courts. The Court of Appeal were persuaded by this argument, but the House of Lords disagreed, ruling that the courts cannot examine parliamentary proceedings or declare Acts of Parliament invalid, even if fraud is involved. Provided the Act has gone through the process of enactment, it cannot be challenged by the courts.

Laws made by Parliament which are not supreme.
Thus, once an Act has gone through the process of enactment, it is supreme. But not every law is made by the collective trinity of Parliament (the House of Lords, House of Commons and Queen-in-Parliament).These laws are not supreme and can be challenged by the courts. These are as follows:


resolutions of the Houses of Parliament are decisions made by either House of Parliament and cannot change the law of the land;

proclamations of the Crown under its royal powers called the ‘royal prerogative’. These are laws made by the monarch without the consent of Parliament. It was widely used in the 16th century. Today, they cannot change the law of the land;

treaties are made by the government under the royal prerogative, and again cannot alter the law of the land. In order for a treaty (or international agreement made between countries) to have effect in the UK, an Act of Parliament must be passed to incorporate it into English law. An example of a treaty which has been incorporated in this way is the European Communities Treaties, considered in Section 5 below;

delegated legislation are laws which are not made by Parliament, but by special organisations who have been given certain powers by Parliament. As long as the organisation which Parliament gives power to make these laws, act within the powers conferred, the resultant law will be valid and upheld by the courts.

The Doctrine of Implied Repeal
Parliament is thus able to make any law it see fit by using an Act of Parliament. It is also able to unmake or repeal any law it sees fit. It may unmake or repeal a law directly by passing an Act of Parliament to repeal it or replace it. If a later Act of Parliament does not state in words that it is repealing a previous Act which is inconsistent or conflicts with it, the courts can imply that the later Act prevails over the previous Act (or the later Act should be applied instead of the previous Act).
This is known as the doctrine of implied repeal. Two cases illustrating the operation of implied repeal are Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 and Vauxhall Estates Ltd v Minister of Health [1934] 1 KB 590. Both cases concerned the Acquisition of Land (Assessment of Compensation) Act 1919, which allowed local authorities to buy land under a compulsory purchase order and pay compensation to the owner of that land. Section 7(1) of the 1919 Act provided that any provision which was inconsistent with provisions of the 1919 would have no effect in law and the 1919 Act would prevail over it.

Amongst other things, the 1919 Act set the rate of compensation payable for the compulsory purchase of certain properties. In 1925, the Housing Act was passed. Section 46 of the 1925 Act altered the rules of compensation under compulsory purchase orders by reducing the amount of compensation payable for the compulsory purchase of rundown properties. It was therefore inconsistent with provisions of the 1919 Act.

In both cases, the plaintiffs were property owners and argued that they should receive the higher rate of compensation under the 1919 Act, not the lower rate under the 1925 Act. In Vauxhall Estates, it was also argued that the 1919 Act tied the hands of future Parliaments. In other words, future Parliaments could not enactment legislation which conflicted with the 1919 Act. These argument was rejected by the court. In both cases it was held that the 1925 Act repealed, by implication, the inconsistent provisions of the 1919 Act.

The courts in both cases rejected the argument that Parliament, by using an earlier Act, could tie the hands of further Parliaments.


Parliament should not bind its successors?
As Vauxhall Estates Ltd and Vauxhall Estates Ltd illustrate, one Parliament is not allowed to tie the hands of a future Parliament. This is a clear limitation on the sovereign powers of Parliament. However there are several examples in the English legal system where one Parliament has successfully bound future Parliaments in order to take into account constitutional changes. A few of these examples are as follows:


the Statute of Westminster 1931 was passed to prevent the UK Parliament making laws for the Dominions (or colonies of the UK) without their consent. Section 4 states

“No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment.”

By allowing the Dominions to make their own laws, the Parliament of 1931 effective tied the hands of future Parliaments. An example of the operation of the Statute of Westminster is seen in the case of Manuel v Attorney General [1983] Ch 77. The UK Parliament passed the Canada Act 1982 with the consent of Canada. The 1982 Act affected the rights of native Canadian Indians. The Chiefs applied to the court for a declaration that the UK Parliament had no power to alter the constitution of Canada in a way which would deprive them of rights.

They argued that s.4 of the Statute of Westminster required the UK Parliament to obtain the consent of the Canadian Parliament and also the native Indian population. The Court of Appeal rejected these arguments and the action failed. Lord Justice Slade in the Court of Appeal was prepared to accept the plaintiff’s arguments. However, his comments were said obiter and so do not form part of the binding decision of the case.

The Acts of Union 1706 and 1800.
Prior to 1603, Engand and Scotland were 2 separate countries with 2 separate monarchs and Parliaments. When James I (James VI of Scotland) came to the throne in 1603, the monarchy was united into one, but the Parliaments remained separate until the Act of Union 1706, Article I, united them, creating one Parliament of Great Britain. This Act bound the form of the future Parliaments.
The 1800 Act of Union, Article 5, provided for a united Church of England and Ireland to remain in force ‘for ever’. Although the words ‘for ever’ indicated the intention of the 1800 Act to bind the form of the Church, subsequent changes were later made ending the union between England and Ireland.


Parliamentary Sovereignty and the EC
In 1972, the UK became a member of the European Communities. The European Communities Act 1972 was passed by the UK Parliament acknowledging the UKs obligations to the EC arising under the Economic Communities Treaty of 1957 (EEC Treaty). It has been argued that this Act has effectively bound future Parliaments, who are now obliged to refer to EC law before making new laws. Although it is not beyond the power of future Parliaments to remove the Act from the statute books by expressly repealing it, this is probably unlikely as the UK has now committed itself to Europe in many areas of common policy.

Section 2(1) of the 1972 Act incorporated EC law into the legal system of the UK by stating:

“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties...are without further enactment to be given legal effect or used in the United Kingdom... and available in law and be enforced...”
Section 2(4) ensures that where there is conflict between UK law and laws of the EC, EC law shall prevail. It provides that
“Any enactment passed or to be passed...shall be construed and have effect subject to the foregoing provisions of this section.” Section 3(1) provides that questions as to the meaning of Community laws shall be dealt with by the UK courts in accordance with the principles laid down by the European Court of Justice .

Effects of the European Communities Act on Sovereignty
The 1972 Act has had wide-reaching consequences for the UK Parliament and its supreme power to make any law it pleases. It has been argued that the Act has limited Parliament’s sovereign powers because now, before it passes a law, it must refer to EC law and its provisions first to make sure new laws are consistent with Community law. Otherwise, as s.2(4) of the 1972 Act illustrates, in the event of conflict between UK law and EC law, EC law will prevail. Clearly therefore, the UK Parliament has limited its own power to legislate.

Furthermore, the UK courts have been given the role of interpreting EC laws under s.3(1) of the 1972 Act. While they have approached the question of conflict between laws passed by the sovereign UK Parliament and EC cautiously and been reluctant to rule against the laws of Parliament, since 1972 they are obliged to challenge the validity of Acts of Parliament which are inconsistent with EC law. This is thus a further dent in the unlimited legislative powers of Parliament. The following cases illustrate these limitations:


Macarthys Ltd v Smith [1979] 3 All ER 325. Under the UK Equal Pay Act of 1970, a woman was entitled to the same pay as a man if she was employed in ‘like work’ to that man in the same employment. The woman in question was employed as a stockroom manager and received £10 less than the man she replaced. Under the EEC Treaty of 1957, Article 119 provided:
“Each Member State shall...ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work”.
On appeal to the Court of Appeal, the court doubted whether the woman was in ‘like work’ to a man in the same employment because she started the job after the previous male manager left.
However, applying Article 119, which did not state that the man and woman must be employed at the same time, Lord Denning felt that Article 119 should prevail over the Equal Pay Act in line with the UK’s obligations to Europe. However, he went on to say that

“if the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provisions in it...then I should have thought that it would be the duty of our courts to follow the statute of our Parliament”, [1979] 3 All ER 325 at 329.
The 2 other judges in the case did not feel that Article 119 should prevail and so the case was referred to the European Court of Justice (ECJ) under Article 177 of the EEC Treaty. The ECJ ruled that Article 119 should apply.

Garland v British Rail Engineering Ltd [1982] 2 All ER 402. British Rail allowed children of male employees reaching retirement to benefit from concessionary travel facilities, but not children of female employees reaching retirement. Instead of dealing with the issue itself, the House of Lords referred the case to the ECJ under Article 177 in order for the ECJ to determine whether this policy amounted to discrimination under Article 119 and also to determine whether the UK courts should interpret the Sex Discrimination Act 1975 in a way which was compatible with Article 119. The ECJ ruled, the policy was discriminatory and that Article 119 should prevail over the UK legislation.

R v Secretary of State for Transport ex parte Factortame [1990] 2 AC 85. This case has provided the strongest remainder yet that EC law prevails above inconsistent laws made by Parliament after 1972.
A Regulation passed by the Council of Ministers provided for equal, open access for fishing vessels of Member States in the waters of other Member States. In order to prevent fish resources running down in any one area, a subsequent Regulation was passed, setting out measures which could be taken by Member States. One such measure was the setting of fishing quotas based on the number of ships flying the flag of a Member State or registered therein.

In order to protect British fishermen from increased competition for fish in British waters, the UK Parliament passed the Merchant Shipping Act in 1988. The Act set limits on the types of vessels which could fish in British waters. In short, in order to register to fish in British waters, foreign vessels and their owners had to have a “genuine and substantial connection” with the UK. One such owner who could not satisfy this requirement was Factortame, who claimed the process was discriminatory to foreign nationals, contrary to Article 7 of the EEC Treaty and restricted freedom of establishment contrary to Articles 52-58.

The Divisional Court was reluctant to deal with the conflict of Parliamentary sovereignty against EC law and tried to refer the matter to the ECJ under Article 177. Factortame argued that in order to protect its Community rights, the Article 177 reference should only be made if the courts granted a temporary (or interim) injunction restraining the UK Government from applying its registration requirements while the matter was being dealt with by the ECJ. The Divisional court subsequently granted this, but the Government appealed to the Court of Appeal, which ruled neither it, or the lower court had the power to grant the injunction against the Government. Factortame appealed to the House of Lords, who confirmed the Court of Appeal’s decision.

The ECJ, ruled the Merchant Shipping Act should be suspended while it determined Factortame’s claim in order to protect their Community rights. The House of Lords subsequently followed the ECJ’s ruling and granted the injunction in Factortame No.2 [1991] 1 AC 603. The supremacy of EC law over inconsistent national laws was thus reiterated by the ECJ.