Challenges to the traditional doctrine of Parliamentary sovereignty

In the last chapter we looked at Dicey’s traditional formulation of Parliamentary sovereignty, i.e. the two fundamental principles that

• Parliament can make or unmake any law, and
• No one can override or set aside any Act of Parliament.

We saw that these are common law principles created by judges. We also looked at Lord Steyn's suggestion in Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262 that Dicey's account is "out of place in the modern United Kingdom" , and might need to be qualified by the courts in exceptional circumstances. In this chapter, we will consider the main constitutional arguments and developments that challenge the traditional account. Students of this key aspect of consitutional law need to make sure they

• understand Dicey's classic formulation,
• appreciate and can explain the strength of the challenges to it
• appreciate the resilience of the core doctrine in the face of these challenges, and
• can put forward a sensible personal view of how well or badly it survives them.

The Scots law argument based on the Treaty of Union In McCormick v Lord Advocate 1953 SC 396, the applicants objected to the adoption by the Queen of the title "Elizabeth II", since she was the first Queen Elizabeth of Scotland. It was the Royal Titles Act 1953 that had made legal provision for Her Majesty to adopt whatever style and title she saw fit. They argued (as explained by Lord Guthrie in his opinion in the Court of Session) that

article 1 of the Treaty of Union being a fundamental condition of the union between Scotland and England, it was ultra vires of the Parliament of the United Kingdom to amend that article or to pass legislation in contradiction of its provisions. That Parliament did not have unlimited sovereignty, since it was created by the Treaty of Union, which contained articles limiting its powers in certain respects... Therefore, if the Royal Titles Act, 1953, purported to authorise Her Majesty to adopt the title "Elizabeth the Second," that statute was ultra vires of Parliament, since by article 1 of the Treaty of Union the United Kingdom came into being on 1st May 1707, and no ruling sovereign of that kingdom had borne the name Elizabeth until the accession of Her Majesty... The Court had power to prevent the publication of a proclamation which was illegal as in violation of the Treaty of Union.

The claim was rejected but the speech of the Lord President, Lord Cooper, sets out, obiter, an Scots constitutional law view that represents a serious challenge to Parliamentary sovereignty as traditionally understood:

The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.

In other words, Parliament's sovereignty is not the ultimate fact of the constitution: rather, the Treaty of Union is the fundamental constitutional text constituting Parliament and to which it is subject. However Lord Cooper agreed the application failed as it was beyond the court's jurisdiction:

This at least is plain, that there is neither precedent nor authority of any kind for the view that the domestic Courts of either Scotland or England have jurisdiction to determine whether a governmental act of the type here in controversy is or is not conform to the provisions of a Treaty, least of all when that Treaty is one under which both Scotland and England ceased to be independent states and merged their identity in an incorporating union. From the standpoint both of constitutional law and of international law the position appears to me to be unique, and I am constrained to hold that the action as laid is incompetent in respect that it has not been shown that the Court of Session has authority to entertain the issue sought to be raised.

There was a similar result in Gibson v Lord Advocate 1975 SC 136, [1975] 1 CMLR 563. This seems therefore to be a purely theoretical, though powerful, corrective to the English view of constitutional law from a Scots viewpoint.

Devolution The Scotland Act 1998 and the Northern Ireland Act 1998 provide for the Scottish Parliament and Northern Ireland Assembly to enact primary legislation in Scotland and Northern Ireland (and the Government of Wales Act 2006 makes provision for the National Assembly of Wales potentially to do so in future in Wales following a referendum). This is undoubtedly a major shift of power from Westminster to the devolved legislatures, and can be seen as a serious political limitation of Parliament's sovereignty. However it is difficult to see devolution legislation as qualifying Parliamentary sovereignty in terms of strict constitutional law. Section 28(7) of the Scotland Act 1998 for instance makes clear that the Scottish Parliament's legislative power

does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

Parliament can still, therefore, make or unmake any law in Scotland. In does not however routinely do so under the Sewel Convention, which represents an agreement between the UK and Scottish governments. Sections 93 and 107 of the Government of Wales Act 2006 makes similar provision to section 28(7) of the Scotland Act, as does (in a slightly different form) section 5 of the Northern Ireland Act 1998. More fundamentally, it is Parliament which has created the Scottish Parliament and other devolved legislatures - it made the relevant laws, and can unmake them, and can abolish the Sewel Convention. Although in political terms this seems unthinkable - and so devolution undoubtedly represents in reality an important modification and limitation of the power of Parliament - it seems clear in strictly legal terms that devolution legislation is an expression of Parliamentary sovereignty rather than a limitation on it.

Grants of independence and the Statute of Westminster But what if a rule like the Sewel Convention is actually enacted in a statute? Can Parliament give away its own sovereignty, or transfer it to another place? The Statute of Westminster 1931 freed the Parliaments of the "Dominions" of Canada, Australia, New Zealand and South Africa and others from being subject to British laws - it gave them their own sovereignty, in other words. It also provided in section 4 that

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 thereof.

Did the theoretical possibility remain that Parliament at Westminster could repeal section 4 - or impliedly repeal it by legislating, for instance, for Canada? In Blackburn v Attorney General (an unsuccessful attempt to challenge the government's intention to accede to the Treaty establishing the European Community) Lord Denning said

We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster; 1931, which takes away the power of Parliament to legislate for the Dominions. Can any one imagine that Parliament could or would reverse that Statute? Take the Acts which have granted independence to the Dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics.

He cited Lord Sankey in the earlier case of British Coal Corporation v. The King (P.C. 1935 A.C. 500):

The Imperial Parliament could, as matter of abstract law, repeal or disregard Section 4 of the Statute of Westminster. But that is theory and has no relation to reality.

Both Land Sankey's and Lord Denning's dicta emphasis the political reality over legal theory. Manuel v Attorney General was a challenge by native Canadian chiefs to the Canada Act 1982, which transferred all the UK's responsibility for the Canadian constitution to Canadian institutions. Their argument was that the Act was ultra vires as Parliament had no power to amend the Constitution of Canada so as to prejudice them without their consent. They relied on the statute of Westminster. At first instance, Megarry VC rejected the complaint, relying on the traditional doctrine of sovereignty and the enrolled bill rule:

The Canada Act is an Act of Parliament, and sitting as a Judge in an English Court, I owe full and dutiful obedience to that Act.

On appeal, the Court of Appeal ruled that in any event, section 4 of the Statute was satisfied because the Canada Act expressly declared that the appropriate consent had been obtained. Actual consent was not necessary in any event. But in concluding its judgment the Court seemed to rely on the enrolled bill rule in the same way as Lord Sankey did:

... if this action were to proceed to trial, it would be bound to fail. The trial judge, sitting in an English court and applying English law, would on any footing be bound to follow and apply the House of Lords decision in Pickin v. British Railways Board (1974) A.C. 765 and accordingly to reject the attack on the validity of that Act.

It's possible to argue, therefore, that this case represents a more traditionalist approach than Lord Denning's obiter dictum in Blackburn. The case law however leaves open, ultimately, the legal question of the effect of the 1931 Act, were it not complied with.

The European Communities Act 1972 In the UK legal system, treaties entered into by the Crown are not automatically part of domestic law: in themselves, they are binding only on the international law plane. This approach to international law is called "dualist", and differs from that of some "monist" states (France is an example) who see treaties entered into by their governments as forming part of the same legal order as domestic law, when ratified. Because of Britain's dualist approach, when we joined the EEC, it was not enough merely for the government to accede to the relevant Treaties: in order for the Treaties to bite on firms and individuals here, they had to be brought into the domestic legal order. This was done by the European Communities Act 1972. The key provision is section 2. Section 2(1) provides that

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, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly

This brings the whole of European law into our domestic legal system - including the EC law doctrine that EC law is supreme (some people prefer to talk of EC law having "primacy"). Section 2(4), which is somewhat obscurely drafted, provides among other things that

any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section

This is a provision of huge constitutional significance, since it makes all of Acts of Parliament, both past and future ("any enactment passed or to be passed") subordinate to ("subject to") EC law as brought into the UK system under section 2(1) ("the foregoing provisions of this section"). The full significance of this was brought home in R v Secretary of State for Transport, ex parte Factortame [1990] UKHL 13, [1991] 1 AC 603. Factortame was a British company owned and managed by Spanish nationals; it owned fishing vessels, and was registered as British for the purposes of fishing against the British "quota" under the common fisheries policy. In order to keep the British quota for genuinely British fishermen, Parliament passed the Merchant Shipping Act 1988, which required ships fishing against the quota to be British owned and controlled.

Factortame argued this was contrary to EC law. The High Court decided to make a reference to the European Court of Justice for a preliminary ruling on the issues of Community law raised in the proceedings; and ordered that, by way of interim relief, the application of the 1988 Act should be suspended as regards the applicant. This was a radical step, since it amounted to judges "overruling or setting aside" and Act of Parliament. When the government appealed, the Court of Appeal held that under national law the courts had no power to suspend, by way of interim relief, the application of Acts of Parliament. The case then went to the House of Lords, which held that, under national law, the English courts had no power to grant interim relief in such a case; but since the dispute raised an issue concerning the interpretation of Community law, the House of Lords decided, to stay the proceedings until the Court of Justice had given a preliminary ruling on the question whether EC law nonetheless obliged or empowered the national courts to grant such an interim order. The ECJ's answer (Case C-213/89) was short and clear:

Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule.

The House of Lords then proceeded to grant interim relief, suspending the operation of the Merchant Shipping Act. If we consider once against Dicey's formulation of Parliamentary sovereignty, we can see that Factortame appears contrary to both limbs: it shows that Parliament could not effectively make law contrary to the EC Treaty; and that the courts can and in appropriate circumstances must override or set aside an Act of Parliament that conflicts with EC law. Truly a historic judgment. However, before concluding that it consigns Parliamentary sovereignty to history, we must remind ourselves that EC law could only be applied by the House of Lords because of the ECA 1972 - which Parliament can always repeal. There is an argument that EC law does not affect Parliamentary sovereignty at all, since Parliament, having made the rule of law that led to the court's conclusion in Factortame, can still if it chooses unmake that law.

EC law and implied repeal In a complex case about metrication, Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin)- often called the "metric martyrs" case - it was argued that the ECA 1972 was impliedly repealed, to the extent that its provisions affected the law of weights and measures, by a subsequent Act of Parliament on the same subject. The judgment of Laws LJ in the Administrative Court has two interesting aspects. First, he rejected Sunderland's argument that EC law had become entrenched - in other words, unrepealable, either impliedly or expressly - as a result of the ECA 1972: Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal... The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty. Accordingly there are no circumstances in which the jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself. This is, of course, the traditional doctrine of sovereignty. This is important because it confirms Parliament's power to repeal the ECA 1972. But secondly, he ruled that the ECA 1972 is in a special class of "constitutional statutes" recognised by common law, which cannot be impliedly repealed:

The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family... Ordinary statutes may be impliedly repealed... A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

Laws LJ's approach is a bold attempt to explain why implied repeal does not apply to the ECA 1972, but it is not clear that higher courts would adopt it. An alternative analysis would be to say that it is the words of section 2(4) of the ECA 1972 itself which have the effect of reaching into the future to "disable" implied repeal. In any event, it is clear that the doctrine of implied repeal, as laid down in the Ellen Street Estates case considered in the previous chapter, has been modified by the ECA 1972. To that extent at least, it must be accepted that Dicey's traditional notion of sovereignty has been affected.

The Human Rights Act 1998 Similar considerations apply to the Human Rights Act, which brought into domestic law the rights guaranteed by the European Convention on Human Rights. Section 3(1) provides that

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

and section 3(2) makes clear that this rule applies to primary legislation and subordinate legislation whenever enacted. In this sense of conditioning the legal meaning of future enactments it is similar to section 2(4) of the ECA 1972; and it modifies implied repeal in the same way. The effect of section 3 can only be displaced by express words in a later Act. However, just as Parliament can repeal the ECA 1972, it can also repeal the HRA. In that sense, Parliamentary sovereignty is unaffected by the HRA even though it subjects Acts of Parliament to the rights in the ECHR to the extent that they can be read in that way. Finally, the HRA is different in an important respect from the ECA 1972, since it expressly permits Parliament to legislate contrary to the Convention rights: such "incompatible" legislation, which cannot be interpreted in a way that complies with the ECHR, is preserved by sections 3(2)(c) and 6(2)(b): the courts may make a "declaration of incompatibility" in relation to them under section 4, but may not disapply them, as was done in favour of EC law in Factortame.