Rule of Law, Sovereignty of Parliament, and Parliament
The Enrolled Act Rule
No court can challenge the validity of an Act of Parliament. Once an Act of Parliament receives Royal Assent, it becomes law Unless the Act defers its coming into force, e.g. HRA 1998 came into effect in 2000 Lord Campbell observed that: all that a court of justice can look to is the parliamentary roll; they see that an Act has passed both Houses of Parliament, and that it has received the Royal Assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament. Lord Reid observed that: The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its standing orders perform these functions. -There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An Act of the legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce a judgment as to the validity of an Act of Parliament. -It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.
Do Henry the VIII clauses violate the sovereignty of parliament?
No, the parent act gives specific authority to minister which prevents him or her from exceeding it.
Procedural conception of Rule of law (Formal conception):
On top of basic principle of legality, there must also be: Legal certainty, Access to justice and no arbitrary use of discretionary power. It is still morally neutral. Legal certainty: Laws must not be retrospective and it should be accessible and known to the public. Access to Justice: Independent Court and confidential legal advice; legal aid Discretionary power: Dicey is largely against the exercise of wide, arbitrary or discretionary powers. Raz gave a more practical view that the exercise of discretionary power must be monitored by the Court to prevent abuse. Main proponents: Professor Raz, AV Dicey
Legislative Competence
Parliamentary Sovereignty refers to the legislative competence of Parliament (not an unlimited power but an unlimited legislative power) -The importance of the principle of the legislative supremacy of Parliament to an understanding of the UK constitution has meant that it has been much written about. Dicey, for example, described the principle as meaning: [N]either more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever; 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. -The Parliament which enjoyed this unlimited legislative authority consisted of the Queen, the House of Lords (HL), and the House of Commons (HC). For Dicey, therefore, the principle of legislative supremacy (or parliamentary sovereignty as he termed it) had both a positive and a negative aspect. Positively, it meant that all Acts of Parliament, whatever their purpose, would be obeyed by the courts. Negatively, it meant that there was 'no person or body of persons who can ... make rules which override or derogate from an Act of Parliament'. E.g. Burmah Oil Co v Lord Advocate [1965] AC 75- Parliament can pass law with retrospective effect
Mechanisms to ensure the functions
Parliamentary privileges - -A body of rules which identify those special rights and legal immunities considered essential if MPs and Parliament collectively are to be able to perform their functions fearlessly, independently and without outside interference. Can be removed by Parliament, but new privileges can be created (Parliament self regulates) Example: Article 9 Bill of Rights 1689 "freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament" Only the speaker of the house can impose penalties but none of the MPs can be sued for their words Essentially, parliamentary privilege evolved at the insistence of monarchs that they should have free access to their advisers as and when they wanted. Accordingly, those advisers, many of whom sat in Parliament, were protected from molestation, arrest, and imprisonment on their journeys to and from Parliament and were thus in a position to advise as required. Originally the enforcement of such a privilege lay with the Crown. However, this jurisdiction was subsequently transferred to Parliament during the reign of Henry VIII, where it has remained ever since. Today, 'parliamentary privilege' means something more than the mere freedom from molestation, arrest, or imprisonment. The notion has a wider meaning, encompassing matters such as freedom of speech, committal for contempt, and Parliament's regulation of its own internal proceedings. In 1997, a joint committee of both Houses was established in order to review the law relating to parliamentary privilege. It concluded: "We consider it of utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle."
Substantive conception of Rule of law:
Rule of law beyond formal conception Rule of law must follow some moral principles, laws that do no follow moral principles are incompatible with the rule of law. 'Rule of good law' Law must recognise the rights and freedoms of individuals, any excessive and disproportionate infringement, even when prescribed by law is illegal. Law must also recognise certain fundamental principle engrained in our democratic tradition Main Proponent: Professor Allan
Contempt procedure
- MP refers allegation to the Speaker in writing - Speaker decides if the criteria are satisfied - Issue referred to the Committee on Privileges - Committee considers and reports to the House - House debates the report and decides a penalty (censure; suspension; expulsion from the House
European Communities Act 1972
- The Act of Parliament that formally took the UK into the European Economic Community (EEC) - Incorporated the Treaty of Rome into UK law, thus making European Law superior to domestic law Main Aim The main purpose of the European Communities Act 1972 was to allow for European Union laws to be introduced into the domestic legislation which allowed for the United Kingdom to become a member of the European Economic Community. What were the changes? The most significant change caused by the introduction of this Act was the fact that it made the United Kingdom a member of the European Economic Community which meant that the United Kingdom was now subject to EU laws. One of the primary changes caused by this Act is under section 2. This section states that EU provisions have direct effect within the United Kingdom.This means that EU regulations and certain articles of the Treaties are automatically incorporated and binding within national law and there is no requirement for there to be a further Act of parliament.This was one of the main factors which created problems within the United Kingdom when their introduction to the European Economic Community was first suggested. This was because it raised disputes as to whether the United Kingdom would remain a sovereign state should they join the EU as it allows for EU legislation to govern the United Kingdom without the introduction of any domestic laws. Another change identified under section 2 is that EU legislation is supreme within any member state and if there are any disputes as to whether domestic legislation breaches EU laws, the member states courts are then obligated to submit questions to the European Court of Justice to get clarification on whether or not the domestic laws need to be changed. This, again, was a significant change for the United Kingdom due to the fact that it is a dualist state. This was a significant factor within the case of Factortame. There was a dispute over whether a national court could provide interim relief where rights under community law were in dispute. As community law is supreme it was held that a national court has the right to grant interim reliefs if the only obstacle, in a case concerning community law, is a national law. This again demonstrates the changes caused to the legal system within the United Kingdom from becoming a member of the EEC.
Core elements of the Rule of Law according to Raz
-All laws should be prospective, open, and clear. -Laws should be relatively stable. -The making of particular laws should be guided by open, stable, clear, and general rules. -The independence of the judiciary must be guaranteed. -The principles of natural justice must be observed. (The right to a fair trial) -The courts should have review powers over the implementation of the other principles. -The courts should be easily accessible. -The discretion of the crime-preventing agencies should not be allowed to pervert the law
Criticisms of Dicey's theory of the Rule of Law
-First aspect: Discretion and the use of discretionary powers by the executive: Professor Jennings listed a number of discretionary powers which existed and were capable of being exercised at the time when Dicey first published his thoughts. Indeed, in the years that have passed since this observation was made, there has been continued growth in the volume and breadth of discretionary powers that are available to the executive. As we shall see later, statutory and non-statutory discretionary power is what enables the government of the day to perform many of its various tasks and functions. During the time that dicey wrote his work, there was some discretion as to how some laws can be enforced. Dicey was concerned with arbitrary power when being punished. He didn't care about how you were going tp get punished (like the details of the punishment) -Second aspect: Immunities from prosecution: In formulating this proposition, Dicey was prepared to make an exception for soldiers and clergymen of the established Church. In his opinion, these two categories of persons were subject to laws which did not affect the rest of the nation and they were also subject to the jurisdiction of tribunals, by which he meant courts martial and ecclesiastical courts, which had no jurisdiction in respect of the ordinary person. Nevertheless, Dicey considered that their position was not inconsistent with the rule of law in that they were still subject to the same duties as the ordinary citizen. The flaw in Dicey's reasoning here is that he only acknowledged those subject to additional legal obligations; he failed to take account of those for whom special provision or immunity has been made. Thus children are not treated in the same way as adults by the criminal law: below the age of ten, a child is doli incapax (ie incapable of committing a crime). Foreign diplomats enjoy immunity from the operation of the criminal law. A more limited immunity is enjoyed by judges, who cannot be sued for the way in which they have dealt with a case, and by Members of Parliament, who cannot be sued for defamation in respect of things said within the precincts of the Palace of Westminster -Third aspect: The complexity of modern life may require legislative interventions, which do not come from the common law, but may affect constitutional principles
Different versions of the Rule of Law
-Formal (Dicey): public power should be carried out under and in accordance with the law preference for law to govern individuals rather than arbitrary power -Formal & Procedural (Raz) law should be prospective only, especially regarding the criminal law; the law should be and the courts must be open for the redress of legal grievances; cases should be heard by independent judges whose independence is guaranteed; the law should be as clear as is possible Formal conceptions of the rule of law address the manner in which the law was promulgated (was it by a properly authorised person, in a properly authorised manner, etc); the clarity of the ensuing norm (was it sufficiently clear to guide an individual's conduct so as to enable a person to plan his or her life, etc); and the temporal dimension of the enacted norm (was it prospective or retrospective, etc). Formal conceptions of the rule of law do not however seek to pass judgment upon the actual content of the law itself. They are not concerned with whether the law was in that sense a good or a bad law ... Those who espouse substantive conceptions of the rule of law seek to go beyond this. They accept that the rule of law has the formal attributes mentioned above, but they wish to take the doctrine further. Certain substantive rights are said to be based on, or derived from, the rule of law. The concept is used as the foundation for those rights, which are then used to distinguish between 'good' laws, which comply with such rights, and 'bad' laws which do not. -Substantive The law must respect certain values concerning the autonomy and dignity of individuals, and/or must reflect the political values of the community To this end, in March 2011, the Council of Europe adopted a report by the Venice Commission on the Rule of Law. The Commission expressed approval for a definition of the essential elements of the rule of law espoused by Lord Bingham as follows: All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts. The Commission was of the opinion that it was now possible to identify various formal and substantive elements of the rule of law. They are: legality, including a transparent, accountable, and democratic process for enacting law; legal certainty; prohibition of arbitrariness; access to justice before independent and impartial courts, including judicial review of administrative acts; respect for human rights; and non-discrimination and equality before the law.
Legislative function - Preliminary stages
-Government bills( outlines concerns government has): Green Papers = consultation documents produced by the Government. The aim of this document is to allow people both inside and outside Parliament to debate the subject and give the department feedback on its suggestions White papers = documents produced by the Government setting out details of future policy on a particular subject (based on information written in the green bills) A White Paper will often be the basis for a Bill to be put before Parliament. The White Paper allows the government an opportunity to gather feedback before it formally presents the policies as a Bill. Drafting a bill is when you turn parts of the white papers into legislation (proposing legislation). For a draft legislation to be voted on, you'll have to be a part of the kings speech (which is written by the PM and his team)> -Private members bill: Relates to an issue of concern identified by an MP or member of the House of Lords
Parliamentary Standards Act 2009
-Introduced following the MPs' expenses scandal 2009 S3 established - The Independent Parliamentary Standards Authority (IPSA) as an independent monitor to assume responsibility for the management of expenses and maintaining the Register of Members' Interests - The Commissioner for Parliamentary Investigations (since replaced by a Compliance Officer for the IPSA under the Constitutional Reform and Governance Act 2010) with the power to oversee any investigations into MPs who he believed, or had reason to believe, had been paid an expenses claim that was not within the rules - S10 made it a criminal offence to make a false claim The principal aim of the PSA 2009 is to reform the procedure by which MP's submit expenses and allowances claims, as well as the assessment of those claims, by moving away from the previous system of self-regulation (perceived to be a catalyst for abuse) and towards a system of largely independent oversight, with a view to ensuring transparency and discouraging the submission of spurious or fraudulent claims. The PSA 2009 also aims to reinforce the aspects of the new regime by buttressing the new regulatory framework with newly introduced criminal offences relating specifically to the submission of misleading or fraudulent claims, although the PSA 2009 as enacted does not go as far as the initial Bill, in that several proposed offences did not survive the passage of the Bill through the House of Commons.
Limits to parliamentary sovereignty
-Parliament cannot bind the hands of its successors: Effect is that Parliament therefore cannot make any law Rationale is that if a previous Parliament can bind a later Parliament then the later Parliament is not sovereign. Explains the need for a power to "unmake" any law -Membership of the European Union S2(1) European Communities Act 1972 (Act of Parliament led the UK to join the European Economic Community, and made all UK law 'subject to' directly applicable European law) -Devolution: the acceding of certain legislative powers to devolved bodies in Scotland, Northern Ireland and Wales
Parliamentary rules
-Parliamentary rights and privileges to discipline and punish members for misconduct and contempt of Parliament (Parliament's control of its own affairs) -Determining its own internal procedures and procedural rules - Deciding if there is a breach of those rules - Disciplining for misconduct - Disciplining for contempt (interfering with the proper functioning of Parliament)
Laws should be prospective
-Phillips v Eyre: Made clear the strong presumption of the courts that Parliament does not intend to infringe the rule of law by penalising people retrospectively -R v R (1991): Married couple were seperated, but not divorced. Husband knocked her down and raped her. At the time this was perfectly acceptable. The judge made it illegal. This is an example of retrospective law making.
Key functions of the House of lords
-Provides an alternative forum for debate on matters of public interest, often of a high standard due to: •A broader range of expertise, especially through life peers •A less partisan environment for debate •The high number of independents -Enables a more thorough scrutiny of Government proposed Bills and subordinate legislation (for example through the House of Lords Committee on Delegated Powers and regulatory reform). Also contributes to the scrutiny of proposed EU legislation (through the House of Lords European Union Select Committee) -Provides an additional layer for holding the Executive to account: Can initiate its own Bills, free from the political constraints of the House of Commons, for example the Constitutional Reform Bill in 2003
Access to Courts
-R v Lord Chancellor, ex parte Witham [1998]: Claimant argued that the Minister had exceeded his power, making rule that he was not authorised to make by parliament. Court agreed and struck down the rule. In granting a declaration that part of the order was ultra vires, Laws J observed: Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically—in effect by express provision—permits the executive to turn people away from the court door. That has not been done in this case.
How Parliament Works: Key Functions
-Representative function: government for the people by the people -Legislative function (HC is the main legislative body): ask minister's questions (generate discussion (public)) -Deliberative function: (heart of democracy in the west because they hold government into account) discuss and debate the law (debated by members of opposition legislature (HC) and government) Checks on the actions of the executive (ministers)
Parliamentary Committee system
-Select Committees: House of Lords Select Committee on the Constitution which considers the constitutional implications of all public bills coming before the House and keeps under review the operation of the constitution -General Committees: joint between HC and HL
The principle of Parliamentary Sovereignty
-The principle that parliament: can make, amend, or unmake any laws, and cannot bind its sucessor or be bound by its predecessors. -Legislation passed by parliament cannot be struck down by a higher body- such as a constitutional court. -The UK supreme court can interpret but not overturn an act of parliament. Traditional view of sovereignty of parliament: -Parliament can make or unmake any law -Parliamentcannotbindfutureparliaments -The courts cannot question the validity of an Act of Parliament Lord Reid's remarks in Madzimbamuto represent a classical formulation of the traditional view that there are no legal limits on the legislative power of Parliament. Under this view, Parliament has the power to make whatever laws it thinks fit, including repressive laws which infringe human rights. Thus to take an example deployed by Sir Leslie Stephen, Parliament could, if it so wished, enact a law that all blue-eyed babies should be killed at birth. It possesses the legal power to do so even if the likelihood of such a law being passed is remote in the extreme. In practice, therefore, there is a clear distinction between what Parliament can do and what it will do. Whilst its legislative power is subject to the type of non-legal limits to which Lord Reid referred, political considerations, for example, play a central role in the determination of a government's legislative programme. Unpopular legislation can have a very damaging effect upon a government, particularly when a general election draws near. Governments may therefore seek to do that which makes them popular with the electorate, or at least refrain from doing that which makes them unpopular. A further example of the traditional view of Parliament's legislative power is evident in the writings of Sir Ivor Jennings. In addition to drawing attention to the fact that parliamentary supremacy means that Parliament has the legal power to legislate on whatever subject matter it likes, Jennings suggested that it also meant that 'Parliament can legislate for all persons and all places'. This point was made with the aid of an example: that if Parliament enacted that smoking on the streets of Paris was illegal, it would therefore be an offence to do so. The French police and the French courts would, of course, not recognize such a piece of legislation. However, the English courts would recognize it and they would be able to try a person for the offence, assuming that they had been given the jurisdiction to do so by the Act.
In the UK, the prevailing account of the rule of law is not substantive
-UK law traditionally protects 'residual' rights and freedoms -Human rights,based on the ECHR,are incorporated in the HRA 1998. As such, they can be amended by any other Act of Parliament. The reason behind this is the doctrine of Parliamentary Sovereignty
Equality before the law
-no man is above the law. Every man, whatever be his mark or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals -nobody, especially government officials, should be immune from the powers of the ordinary courts -M v Home Office [1994]: Facts: The court ordered a deportation order made against M be delayed. M was deported, and the court ordered his return. However, the Home Secretary cancelled the return, believing the order not to apply. Principle: the executive, even when acting on behalf of the Crown, does not share immunity from the law as does the crown. In this case, a injunction was in that was issued against the Home Secretary, he was in contempt when he ignored it. The principal judgment in M v Home Office (1994) was delivered by Lord Woolf. He observed, amongst other things, that the court's purpose in making findings of contempt was to ensure that 'the orders of the court are obeyed'. Moreover, Lord Woolf considered that the 'object of the exercise' in a case such as the present 'is not so much to punish an individual as to vindicate the rule of law by a finding of contempt'. Here, therefore, lies the importance of M v Home Office. It was the first occasion on which a government minister had been found guilty of contempt of court. The decision of the HL thus underlines the point that nobody, not even a member of the executive, is above the law. In the words of Lord Templeman in the case itself: [T]he argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War
Laws should be open, clear, and certain
-order for people to understand what it is that the law requires them to do, or to refrain from doing, it is necessary that the law is free from ambiguity and uncertainty. -The need for clear and intelligible laws applies to both the law made by Parliament and the common law principles developed by the courts. Excessive judicial activism in relation to the latter thus gives rise to difficulties since, as Lord Bingham (2007) has pointed out: 'It is one thing to alter the law's direction of travel by a few degrees, quite another to set it off in a different direction.' Indeed, it may not be overstating the case to say that if judges were to consistently seek to be excessively adventurous or innovative in their judgments, the rule of law would be seriously weakened and perhaps even fatally wounded as a result.
The absolute supremacy of regular law
-the Rule of Law demands that regular law prevails over arbitrary power -no man is punishable except for a distinct breach of the law established in the normal manner before the ordinary courts of the land
The UK constitution is based on common law
-the general principles of the English constitution,(e.g. liberty of the person), are the result of judicial decisions determining the rights of private persons in cases brought before the courts -Common law tradition: The UK has an uncodified constitution, which has not been imposed from the monarch. The courts develop the constitutional principles, which are thus embedded in the very fabric of society
Rule of Law according to Dicey
1. absolute supremacy of regular law 2. equality before the law 3. the UK constitution is based on common law
Bill of Rights (1689)
A bill passed by Parliament and accepted by William and Mary that limited the powers of British monarchs and affirmed those of Parliament.
Factortame case
A legal case between 1989 and 2000 which seemingly confirmed the predominance of European Union law over UK law.
Human Rights Act 1998
Act of Parliament that incorporated the European Convention on Human Rights into UK law, making it enforceable in UK courts The contemporary significance of the rule of law has of course increased as a result of the Human Rights Act 1998. The shift in English law from a reliance on residual rights and liberties to the assertion of positive rights under the Act has meant that government actions are now potentially subject to rather more intense judicial scrutiny than was previously the case.
Constitutional Reform act 2005
Act that enhanced judicial independence by establishing a Supreme Court, and reforming the appointments process and role of the Lord Chancellor The Constitutional Reform Bill as originally introduced said nothing expressly about the rule of law. However, during its report stage in the HL (7 December 2004), the then Lord Chancellor moved an amendment which inserted a new clause. In so doing, Lord Falconer explained: The Government have no problem in accepting that the rule of law must and does guide the actions of Ministers and all public officials. It is also clear that Ministers and other public officials must comply with the law. That obligation is enforceable in the courts. So, if a Minister went beyond his powers or used them for a purpose other than that for which they were intended, he may have his actions overturned by the courts.
Natural Justice
By the 'principles of natural justice' it is meant that individuals have the right to a fair hearing and that there should be an absence of bias in the decision-making process. -R v Secretary of State for the Home Department ex p Pierson: Home secretary subjected the claimant to serve a harsher sentence based on a retrospective decision. Court ruled that deciding something retrospectively is against the rule of law. Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.
Parliament
Consists of: -the House of Commons -the House of Lords -and the Queen-in-Parliament: not allowed to ever step into the HC
Express repeal
Explicitly provide for the fact that it has repealed an Act Thus it would seem that in the light of the decision in Thoburn, whereas constitutional statutes are not immune from express repeal, they are, contrary to the constitutional orthodoxy in respect of ordinary statutes, immune from implied repeal. The more complex definition is that a constitutional statute: is a statute at least a part of which (1) creates or regulates a state institution and (2) is among the most important elements of our government arrangements, in terms of (a) the influence it has on what state institutions can and may do, given other governing norms, and (b) the influence it has on what state institutions can and may do through the difference it makes to our other norms. Applying these criteria, Laws LJ cited the following as examples of constitutional statutes: Magna Carta, the Bill of Rights 1689, the Acts of Union, the Reform Acts, the European Communities Act 1972, the Scotland Act 1998, the Government of Wales Act 1998, and the Human Rights Act 1998.
Principle of legality
If something is to be regarded as a law, it must be enacted in whatever way the relevant legal system prescribes. Principle identified by Dicey, though his idea falls more in the Formal conception of rule of law. It is morally neutral.
Declaration of incompatibility
The Human Rights Act allows judges to issue a declaration of incompatibility when laws do not comply with the European Convention on Human Rights It is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of parliamentary sovereignty. In a case of incompatibility, which cannot be avoided by interpretation under section 3(1), the courts may not disapply the legislation. The court may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action In applying s 3 courts must be ever mindful of this outer limit. The HRA 1998 reserves the amendment of primary legislation to Parliament. By this means the HRA 1998 seeks to preserve Parliamentary sovereignty. The HRA 1998 maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament In the case of primary legislation such a declaration 'does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given' (s 4(6)(a)). It is, therefore, in the words of Professor Gearty, 'politically potent but legally irrelevant'. The HRA 1998 thus preserves the legislative supremacy of Parliament by not conferring on the courts a power to strike down primary legislation. In R v A, Lord Steyn remarked that a 'declaration of incompatibility is a measure of last resort' which 'must be avoided unless it is plainly impossible to do so'
What is the "rule of law"?
The Rule of Law aims to prevent abuses of state power which is similar aim as the separation of powers (separation of powers relates to the branches of state power). The rule of law relates primarily to how state power is exercised vis à vis the individual. -The purpose of the rule of law is to be ruled by laws and not men.
Acknowledged by UK courts
Thus at the heart of the discussion of the supremacy of Parliament lies the relationship between Parliament and the courts. Parliament has unlimited legislative authority because the courts have traditionally recognized this to be the case. H L A Hart considers that the rule of parliamentary supremacy is part of what he terms 'the ultimate rule of recognition'. This is deployed by the courts as a means of identifying what are valid rules of law. -Mortensen v Peters The Jennings example underlines the vastness of Parliament's legislative power and confirms that the doctrine of the supremacy of Parliament is concerned with the relationship between Parliament and the courts. In particular, it centres upon the obedience which the courts show to Acts of Parliament. In Manuel v Attorney General (1982), where the vires of a UK statute (the Canada Act 1982) was challenged, Sir Robert Megarry V-C observed that he had: heard nothing in this case to make me doubt the simple rule that the duty of the court is to obey and apply every Act of Parliament, and that the court cannot hold any such Act to be ultra vires. Of course there may be questions about what the Act means, and of course there is power to hold statutory instruments and other subordinate legislation ultra vires. But once an instrument is recognised as being an Act of Parliament, no English court can refuse to obey it or question its validity.
The Purpose of Parliamentary debates
To allow MPs and Lords to expose weaknesses in government policy and highlight alternative policies (bear in mind that policy also influences legislation)
House of commons key functions
To represent the will of the people (key feature of democracy) through: •Proposing legislation •Provide the largest part of the Government •Provide the opposition to the Government •Scrutinise the Government but also to maintain the Government •Keep the public informed But •"Representative" democracy but proportionately few women, ethnic minorities, younger people •Problem of so called "safe seats" •Party loyalty / partisan •Government returned on often less than majority vote but with significant dominance in terms of seats in the House
Entick v Carrington
Trespass is actionable per se and guaranteed for all - even officials cannot break the law without authorisation. "If it is law, it will be found in our books. If it is not to be found there, it is not law." -prerogative powers of the monarch and government are subordinate to the law of the land -government officials acting in an executive capacity cannot exercise public power unless such exercise of it is authorised by some specific rule of law -government officials cannot enter private premises without legal authority
Can parliament pass a law that violates the rule of law?
Until now, there has never been a very serious breach of the rule of law that the courts have not accepted. Some commentators believe that if there was the fundamental breach of the rule of law, judges will refuse to apply the law. In theory, parliament can vote for a bill that violates the rule of law fundamental breach in the rule of law. Practically, immediately it will be challenged by the UK court argued that it violates the Human Rights Act and issue a declaration of incompatibility. It is highly unlikely that a law like that will be passed. For example, if parliament refused to change the law, they will face political pressure. Parliament could, if it so wished, enact a law that all blue-eyed babies should be killed at birth. It possesses the legal power to do so even if the likelihood of such a law being passed is remote in the extreme. In practice, therefore, there is a clear distinction between what Parliament can do and what it will do. Whilst its legislative power is subject to the type of non-legal limits to which Lord Reid referred, political considerations, for example, play a central role in the determination of a government's legislative programme. In the case of primary legislation such a declaration 'does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given' (s 4(6)(a)). It is, therefore, in the words of Professor Gearty, 'politically potent but legally irrelevant'. The HRA 1998 thus preserves the legislative supremacy of Parliament by not conferring on the courts a power to strike down primary legislation.
Implied repeal
When a new act of parliament conflicts with an old one. If this happens, then the new act of parliament is used, since the courts assume this is Parliaments latest intentions. A key aspect of the orthodox Diceyean view of the supremacy of Parliament is that the one thing that Parliament is unable to do is bind its successors. It therefore follows that legislation enacted by one Parliament is not immune from amendment or repeal by legislation enacted by a later Parliament. In this sense, supremacy can be said to be a continuing attribute of Parliament. Where there is potential inconsistency between Acts of Parliament, or an earlier Act is no longer required because a new Act has been passed, provisions in the earlier Act or indeed the whole Act itself may be amended or repealed. The extent of the amendment or repeal will be stated in the later Act and will take legal effect once that Act or the relevant provision has entered into force. This amounts to an express repeal of the earlier provision. If an Act of Parliament was able to prevent its future repeal by a later Act, then clearly there would be a restriction or limit on the supremacy of Parliament: Parliament would be able to legislate as it thought fit provided that it did not enact legislation inconsistent with earlier Acts. In this way, later Parliaments would be bound by the laws made by earlier Parliaments with the result that the scope for legislating would become progressively reduced. Eventually a point might be reached at which there was little need for further enactment because the statute book was full of unrepealable laws. This would be absurd. Accordingly, the doctrine of implied repeal prevents this from happening by holding that in the event of inconsistency between two Acts, that which is the most recent expression of Parliament's legislative will and intent prevails.
Do Henry the VIII clauses violate the rule of law?
Yes, because the law is amended by ministers and will not be open to the public.
Henry VIII clauses
grant government ministers the power to alter Acts of Parliament by means of secondary legislation
The Speaker of the House of Commons
• Regulates the procedures of the House • Independent from the Crown • Normally from the political opposition party • Ensures rules of conduct and order is maintained • Controls debate • NB: Lord Speaker is the presiding officer of the House of Lords
