Constitutional and Administrative Law: Parliamentary Sovereignty and the Rule of Law (1)

Parliamentary Sovereignty: Central element of the constitution. Bogdanor: Summarised in eight words - 'What the Queen in Parliament enacts is law'. Dicey: 'Undoubted legal fact' that Parliament alone has the ability ‘to make or unmake any law whatever’.  Acknowledged as the 'prevailing constitutional doctrine' (Ghaidan v Godin-Mendoza [2004] per Lord Millett) as well as a common law principle (R (Jackson) v Attorney General [2005] per Lord Steyn). Theory implies that Parliament can give legal effect to any political or moral values it considers desirable. Courts cannot, under this doctrine, possess the constitutional power to invalidate the laws and declare them to be legally unconstitutional. In principle, they simply obey and apply what Parliament enacts as law (consider Cheney v Conn [1968]). Types of sovereignty: Legal: Legal relationship between Parliament and the courts. Political: Political relationship between Parliament (H of C and gov't) and the people (the electorate).  

Case Law: Bate's Case (1606): Held that the King at the time had the power under the Royal Prerogative to regulate trade. Ship Money (1637): The King could raise taxation without Parliamentary authority. Parliament exercised some control over the extent of Royal power. Changed under the Bill of Rights 1689 (Article 4), which declared it was illegal for the monarch to raise taxation without proper Parliamentary authority.1. Cheney v Conn [1968]:  A statute could not be challenged for illegality, or for being made for an unlawful purpose otherwise the supremacy of Parliament would be denied.  Not the courts' role to question the validity of Acts of Parliament. 2. Jackson v Attorney General [2005]:  Legality of Hunting Act 2004 (depending on legality of Parliamentary Acts 1911 and 1949) - 1949: legislation could be passed without H of L consent - s.2(1) 1911 Act expressly excludes from its ambit a Bill purporting to extend the life of Parliament.  Held that the 1949 Act was valid - suggestion that courts now have the ability to determine what is / isn't an Act of Parliament).

Nature of Parliamentary Sovereignty:CASE: Jackson v Attorney-General [2005]:Lord Hope: 'Our constitution is dominated by [Parliamentary sovereignty]. But [it] is no longer ... absolute'. 'The Rule of Law ... is the ultimate controlling factor on which our constitution is based'. Lady Hale: In considering the limitations that may have been placed on Parliamentary sovereignty such as the European Communities Act 1972 and the Human Rights Act 1998 - 'it is possible that other qualifications may emerge in due course'.

Constitutional Statutes:CASE: Thoburn v Sunderland City Council [2002]:Laws LJ: Noted the ECA 1972 to be a 'constitutional statute'.Test for a constitutional statute:Conditions the legal relationship between citizen and state in some general, overarching manner - enlarges or diminishes scope of fundamental constitutional rights.CASE: Factortame [1991]:National legislation had to give way to EU law. National legislation could be 'disapplied' or temporarily suspended to allow time for amending legislation to be passed.Brings into question the absolute nature of Parliamentary sovereignty.

Diceyan Definition:Three principles: The Queen in Parliament legally can pass any law The courts cannot challenge the authority of an Act of Parliament Parliament cannot bind its successors or be bound by its predecessors

Definition:DICEY:Three concepts: Predominance of law in preference to wide discretionary arbitrary prerogative power. Punishment for breach of law; nothing else. Equality before the law  Constitutional Principles derived from ordinary law of the land.

1. Predominance / punishment for breach: 'Wherever there is discretion there is room for arbitrariness'. Arbitrary power has lack of clear legal limits - state officials act in unregulated and unchallengeable way. R of L permits legal accountability - benefits individual - certainty as to parameters of state power. Administratively speaking - regulation of powers benefits officials - makes use of their powers more efficient. 2. Equality before the law: Everybody subject to the law, regardless of status (private citizens and state officials alike). Better chances of democratic accountability. 3. Constitutional Principles derived from Law: Constitution effectively court-based - rights and freedoms of individuals are a direct consequence of judicial decisions. Contrast to other jurisdictions - rights derived from written codified constitutional documents (i.e. Charter of Rights). Need for re-evaluation in light of the HRA - represents a list of basic positive rights which can be enforced by the domestic courts.

CASES: A v Secretary of State for the Home Department [2004] Inland Revenue Commissioners v Rossminster Ltd [1980] Customs and Excise v Cure & Deeley [1962] Entick v Carrington (1765) M v Home Office [1994] R v Horseferry Road, ex parte Bennett [1994] Liversidge v Anderson [1942] R v Secretary of State, ex parte Hosenball [1974] R v Secretary of State, ex parte Simms [1999] Secretary of State for the Home Department v AF [2009]

Lord Woolf: 'Ultimately, it is the rule of law which stops a democracy descending into an elected dictatorship'. ([2004] 63 CLJ 317).

Procedural or Substantive?Procedural: Procedures are conducted fairly and justly, that the exercise of government and public power is properly regulated. Entick, where the executive requires legal authority to act - need to identify precise legal source of powers.  M v Home Office: Deportation of asylum seeker before judicial proceedings complete was a violation of legal procedure by HS - executive cannot act in contempt of court;  Belmarsh: Indefinite detention of terrorist suspects was contrary to R of L - requirement of trial; IRC v Rossminster: Wide discretion accorded to Inland Revenue officers to enter and search premises where 'reasonable ground' for suspecting fraud) Substantive: The rule of law embraces a substantive concept through the evaluation of laws according to fundamental constitutional principles which include the protection of individual freedoms:  Belmarsh;   Simms, the blanket ban on interviews of prisoners denied them a fundamental right of gaining access to justice;  IRC - Lord Scarman commenting on the 'inroad on the individual's right of privacy'). 

Introduction to Parliamentary Sovereignty

Diminishing of Parliamentary Sovereignty

The Rule of Law

Defining Parliamentary Sovereignty

The Rule of Law (I)