Parliamentary Sovereignty

The Supremacy Debate – the EU 

There are a number of articles on your reading list concerning Factortame and the debate over whether membership of the EU is a limit on the sovereignty of Parliament.  

The “Metric Martyrs Case” (Thoburn v. Sunderland City Council) raised this issue again. However, Laws LJ took the opportunity, more controversially, to take the view that Parliamentary sovereignty might be altered by the common law. He stated obiter that “constitutional statutes” may only be expressly repealed whereas “ordinary” statutes are subject to the doctrine of implied repeal. His views are yet to be embraced by the judiciary or by Parliament.

In a case comment in the European Law Review, Arnull states that: 

“Laws L.J. went on to hold that the traditional doctrine of Parliamentary sovereignty had in any event been modified by the common law, which now recognised a category of rights which were to be classified as constitutional or fundamental. It followed that “[w]e should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes … 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.” The ECA was, by force of the common law, a constitutional statute. Such statutes could not be impliedly repealed.”  See EL Rev 2002, 27(3), 239-240. (available on WESTLAW) .

An interesting case comment which also argues that Laws LJ’s classification of a “constitutional” statute is an incomplete one since it does not include statutes governing the inter-relationship of the institutions of government, as usally provided for in any constitution is found at: EL Rev [2002] 27(6), 771-779 (available on WESTLAW). 

The Parliament Acts and the Hunting Ban 

More recently, the decision of R (on the application of Jackson) v. Attorney General [2005] UKHL 56; [2006] 1 AC 262 (HL) (or Jackson v. Attorney General) has generated much constitutional debate over the question of parliamentary sovereignty.   

The appellants challenged the Hunting Act 2004 Act on the basis that it had been passed in reliance on s2(1) Parliament Act 1949, amended by s1 Parliament Act 1949. They contended, however, that the 1949 Act was invalid because the Parliament Act 1911 as amended by the 1949 Act did not authorise its own amendment – it could only have been passed with the consent of the Commons, the Monarch and the House of Lords. They took the view that the 1949 Act is a piece of delegated legislation.

The Lords held that the Parliament Act 1949 (and hence the Hunting Act 2004) was a valid Act of Parliament.  On one hand, Lord Bingham stated that the validity of the 1949 Act had been recognised by governments of different political persuasions for the last 50 years. On the other hand, Lord Steyn stated that this could theoretically result in the Commons introducing undemocratic legislation. Lord Hope underlined this by saying there were few checks on the Commons, controlled by the government, other than the electorate. 

Full judgment found at:http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdfSee  

Case Comment at: Mark Elliott The Sovereignty of Parliament, the Hunting Ban and the Parliament Acts  CLJ [2005] 65(1)  pp 1-4. http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=65&issueId=01  [Use ATHENS login.] 

See also the article from January 2007 by Richard Ekins Acts of Parliament and the Parliament Acts,  L.Q.R. 2007, 123(JAN), 91-115 available on WESTLAW. 

In addition, Bradley & Ewing state at pp 77-78 that the decision demonstrates also that: “While British tradition has been strongly against the courts reviewing the validity of primary legislation, the courts cannot escape the task of deciding whether a document for which legislative authority is claimed is in law an Act of Parliament.”