Parliamentary Sovereignty

When we talk about ‘Parliament’ and ‘parliamentary sovereignty’ what exactly do we mean? Firstly we must take the word ‘Parliament’ to mean not the actual Houses of Parliament themselves but instead the Acts passed by Parliament with the consent of the Commons, Lords and the Queen. The doctrine of parliamentary sovereignty is about the relationship between those who create the Acts (Parliament) and those who must apply them (courts).

The argument we find ourselves trying to answer is who in fact has the supreme power? Is it the law makers or those who must apply the law? To present an analogy of the problem we could ask who has supreme power in a game of football or rugby. Is it the governing body who make the rules or is it the referee who must apply the rules in each game using his discretion as each situation occurs. The analogy may seem crude but judges find themselves in the exact position of referees.

The question therefore remains, who is supreme? When Dicey published The Law of the Constitution in 1885 he identified parliamentary sovereignty as meaning that, ‘Parliament 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. ‘ To look at this much quoted statement in more detail we can find a lot of evidence to support his view.

It has been shown over the years that courts are totally unwilling to question the legitimacy of statutes unless there is some question as to them not being passed using the correct procedure. As long as an Act has passed through both Houses and received the Royal Assent judges will not argue whether or not a statute should or should not exist but will merely try to apply the statute. One of many examples of this is the case of Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710. In this case a man was appealing to the court against a private Act obtained by the railway company as it adversely affected him.

The court however would have nothing to do with it and Lord Campbell pronounced, ‘… all that a court of justice can do is to look at the Parliamentary roll: if from that it should appear that a bill has passed both houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, what was done to it previously being introduced, or what passed in Parliament during the various stages of its progress through both houses of Parliament. ‘ From this t is quite clear that courts will obey statutes as long as they are passed correctly but that ordinary courts have no jurisdiction, nor are they willing, to enquire into issues concerning the internal affairs of Parliament. This is known as the ‘enrolled Act’ rule. It was again shown in the case of Ex Parte Canon Selwyn (1872) J. P. 54. and also was emphasised over a hundred years later in the case of Pickin v British Railways Board [1974] AC 763. This again concerned the plaintiff arguing over the validity of a private Railways Act.

Lord Reid reiterated the words of Lord Campbell in Edinburgh & Dalkeith and stated in judgement, ‘For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, and I would only support it if compelled by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation. ‘ Once again this shows the courts unwillingness to question the validity of an Act.

Lord Morris also said in this case, ‘It is the function of the courts to administer the laws which Parliament has enacted. In the process of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the statute book at all. Courts, it seems, may not even question an Act if it is contrary to international law. This was clearly demonstrated in the case of Cheyney v Conn [1968] 1 All ER 779. Here it was claimed that money from tax given under the Finance Act 1964 would be used in a way contrary to international law. The court however decided that it was not their duty to say whether the contents of the Act were just, merely it was their job to apply the Act, irrespective of fairness or justice. A similar case was that of R v Jordan [1967] Crim L. R. 483.

This was an appeal against the Race Relations Act 1965 on the grounds that it was an infringement on freedom of speech. Again this failed as the judges were unwilling to question the validity of the Act. One final case which is worth mentioning is that of Manuel v AG [1982] 3 All ER 786,822. Here Canadian Indian chiefs tried to declare the Canada Act 1982 invalid. They argued that although it claimed to have consulted the people of Canada it had not consulted them and therefore should not have been passed. The Court of Appeal held that there was nothing they could do once the Act was passed, it was too late.

Megarry V-C said that, ‘the duty of the court is to obey and apply every Act of Parliament, and the court cannot hold any such Act to be ultra vires’. This would suggest that the courts will not get involved even if Parliament has not done all it should have done in passing an Act. As long as the necessary assents have been given, or even appear to have been given, the courts will not investigate matters further. From all this it is apparent that the courts and parliament both realise that they have specific jobs to do and prefer to get on with doing those jobs.

Neither like to try to interfere with what the other is doing. Courts see their role, to go back to the sporting analogy, as being referees who must apply the rules. However they do not question the validity or logic of such rules, not publicly anyway. If, for example, the government passed a rule to say that no house in England would be allowed a garden shed then the courts would obey such a rule, however futile it may be or whatever international laws it may break. Their job is not to question, merely to apply.

I will look at this role more closely towards the end of the essay. It has therefore been established that Dicey’s doctrine of parliamentary sovereignty is, in theory, true. Parliament, it seems, can make or unmake any law it wishes and no person or body can set aside or override such legislation. However whether this is actually true in practice remains to be seen. Although UK courts are bound to obey UK statutes regardless of how fair, just or practical they are, judges do have a certain flexibility in interpreting them.

It is their job not only to apply the statutes but also to give their interpretation as to what parliament hoped to achieve by such a statute. They may interpret a statute strictly if they feel this is necessary, or if it is worded in such a way that makes ambiguity impossible, or they may allow a statute a wide interpretation, often as they may feel strict application may not be just in a specific case. Judges may very possibly interpret a statute to mean one thing in one case and something completely opposite in another case but at all times must remember their duty to act lawfully.

In his book Constitutional and Administrative Law John Alder gives the example of ‘a judge who interpreted a statute imposing a prison sentence as authorising hanging would simply be acting unlawfully. ‘ What the judge may do is use his discretion as to the length of the prison sentence but not as to alternative punishments. Going back to the sporting analogy if a footballer wastes time over a throw-in the referee may warn him, give a throw-in or free kick to the opposite side and/or give the offending player a yellow card.

However the referee is not authorised to send the player off in a situation such as this and in doing so he would be acting unlawfully and would be subject to disciplinary charges from the governing body. So we see that judges although allowed to offer their own, sometimes biased, interpretation they may not act outside the laws laid down by Parliament. Often the power given to judges to interpret statutes can work in favour of Parliament. It is obviously difficult for Parliament to foresee all situations that may arise when they formulate an Act.

In view of this it is often useful for Parliament to word Acts in such an ambiguous way that they can be given a wide interpretation by judges according to the different circumstances of each incident that may arise. In his article The Sovereignty of Parliament-in Perpetuity? A. W. Bradley points out, ‘… once the political decision has been taken to make a change in social or economic policy, and this decision has been expressed in legislation, it is for the judges to decide authoritatively on the extent of the new rights and duties which that legislation creates.

In this respect, the courts have an essential part to play in ensuring the government is conducted according to law. ‘ What Bradley is saying here is that the creation of new legislation is almost a joint venture between Parliament and the courts. Parliament, to use another analogy, lay the foundations of the building and construct the basic brickwork and it is left to the courts to finish off the finer details and provide the fixtures and fittings. This seems to me to be a just way of making and applying the law. Although courts are not authorised to set aside primary legislation they can do so with delegated legislation.

One of the reasons for enacting delegated legislation is that it saves Parliament time and allows for a change in such rules quickly and without going through the complex parliamentary process. Courts are allowed to challenge delegated legislation as ultra vires if it exceeds the scope of authority confirmed by primary legislation or if the correct procedures have not been followed. In the case of Hoffman La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128 Lord Diplock said, ‘… in constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation…

I entertain no doubt that the courts have jurisdiction to declare [subordinate legislation] to be invalid if they are satisfied that in making it the minister who did so acted out with the legislative powers conferred on him… ; and this is so whether the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to it being made (latent defects)’ This trust placed in the courts by Parliament clearly shows the importance placed in the courts concerning legislative matters.

Finally I feel it necessary to give a brief mention to the question of Europe on this matter. Since England joined the European Community in 1972 there have been a number of cases in which English statutes have conflicted with those from Europe. In these cases the judges have once again used their powers of interpretation and have often construed an English statute to confirm with an EC statute. For the most part English judges have no wish to clash with the Europeans and so try to pass judgement accordingly.

The cases of Garland v British Rail Engineering Ltd [1983] 2 AC 751 and Pickstone v Freemans plc AC 66 show clearly how judges apply a ‘purposive interpretation’ to English statutes to make them conform. It is unclear however what would happen if Parliament enacted a statute in direct conflict to European laws. Although this is unlikely to happen on political grounds it seems English judges would be bound to apply a conflicting UK statute irrespective of European laws.

Therefore to conclude it would seem that Parliamentary sovereignty is not a question of being more about the courts than about Parliament, or vice versa, it is about the two bodies working together to try and apply the law fairly. It is true however that when we talk about Parliamentary sovereignty we are not talking about Parliament having complete control as the courts do hold a certain amount of power. I have shown the powers they have in interpreting statutes and their vital importance in the application of law.

It would be completely wrong to think that the judicial system is a puppet under the operation of Parliament as this puppet, as I have shown, has very much a mind of its own. Whether the courts should have more or less power is a difficult question. If they had less power we might be in danger of losing the flexibility in our judicial system, if they had more, i. e. they could override statutes, we may be faced with great inconsistencies. It seems that English courts whilst being allowed a certain amount of flexibility are still ultimately answerable to Parliament, however this seems to be more through choice than obligation.