Public Law Assignment

The question raises a major constitutional issue regarding the sovereignty of parliament in light of the decision reached in Jackson v Attorney General. The validity of an Act of Parliament is an issue that lies at the very 'heart' of UK constitution. 1 In answering this question, I will start by defining and discussing the origin of parliamentary supremacy;2 secondly I will examine the structure and the functions of parliament and how this relates to Lord Steyn's comments in the Jackson case; then thirdly, move on to discuss the internal and external limitations of parliament and how these influences affect the supremacy of parliament.

The discussion will also examine how the proposal to establish a UK supreme court will limit the powers of parliament if at all, and then finally, I will provide an opinion regarding the survival of this doctrine in the future. Parliamentary supremacy as described by Dicey refers to the legislative power of parliament. 3 In his definition, Dicey asserts that there are no limits as to what parliament can legislate on. He further asserts that there are no legal boundaries to these powers. It is claimed that since no Act confers this sovereignty, then it follows that no Act can set it aside.

The situation is different where a written constitution exists because the validity of a law may be examined to check its conformity with the constitution. No such document exists in the UK. One may then ask where the power to legislate originated. The answer can be traced back to the Bill of Rights in 1689 Art 1 which gave parliament authority to make law. 5 If the limits to these powers had been considered then, this discussion would not be relevant. This not being the case, we now have what we call the present day parliament6.

As an important element of parliament, The House of Lords shares the legislative role; examines government's work; and acts as the highest court of appeal. Ideally, one would expect a clear separation of powers where the function of the executive is to govern the country, but in reality, parliament,7 controls the executive. 8 On a positive note, parliament is able to carry out its functions of law making without obstacles, but on a negative note, the executive's position is weakened reducing its effectiveness of reviewing government's work. The doctrine of separation of powers is therefore at risk.

One may ask whether the overlap in functions between the executive and the judiciary may be abused. The judiciary may be faced with cases where the immunity of Ministers is at question as presented in M v Home Office [1994] 1 AC 377. 9 The judiciary therefore plays an important role in maintaining the rule of law. By applying the Acts of Parliament without question, judges are enforcing the rule of law and emphasizing the supremacy of parliament. 10 It is therefore right to assert that judges keep the fire of parliamentary sovereignty glowing.

As asserted by Dicey, no document or body has the authority to challenge the validity of an Act of Parliament11. Lord Reid is quoted in Madzimbamuto v Lardner – Burke [1969] 1 AC 645,12 as asserting that though parliament would not be expected to act unconstitutionally, there is nothing to stop it from doing so and no court may challenge its actions. 13 The Appellants in Jackson v Attorney General chose to disagree. By challenging the validity of The Hunting Act 2004,14 the appellants questioned a fundamental principle of parliamentary supremacy.

They raised a procedural15 issue on the passing of bills, and argued that the 2004 Act was based on an invalid Act,16 having been rejected by the House of Lords. 17 By so doing, the appellants also questioned the objectives of the 1911 Act. 18 The main question, therefore, presented to the House of Lords was to determine whether the 2004 Act was indeed valid. To answer this question the Lords needed to ascertain whether the 1949 Act was valid. In their deliberations, the Lords also examined the relationship between the House of Commons and the House of Lords in law making19.

It was unanimously determined that the 1949 Act and the 2000 Act were indeed valid Acts of Parliament and the appeal dismissed. When one examines the deliberations in the Jackson case one cannot fail to see the reluctance of the Lords in 'ruffling the feathers' of parliament, perhaps in an attempt not to exceed their judicial powers20. Before reaching his decision, Lord Steyn argued that an action such as restructuring the House of Lords as asserted by the Attorney General, was a constitutional issue requiring legislative authority.

In his argument, he stated that a danger existed where the 1949 Act could be used to bring about unpopular legislation. He however clarified that the case did not present any constitutional issues. In relation to the Diceyan, Lord Steyn's stated; "The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. "21

Despite the acknowledgement that the doctrine is outdated, Lord Styen, like the other judges, upholds parliament's supremacy. 22 Judges take their own initiative to review legislation where it conflict with individual rights. This process is however inadequate because it not a formally recognised and is on a case by case basis. Parliamentary supremacy therefore, depends a lot on how the judges apply the law23. The role of judges has also been emphasised by Dworkin who argues that judges should apply the law as intended by parliament.

He supports the theory of parliamentary supremacy by stating that the community should be governed by elected people. Judges he asserts, are not elected, thus should not legislate. 24 The question then arises as to whether more power should be given to judges or whether there should be more checks and balances on parliament. Under the doctrine that parliament cannot bind its successors; courts may find themselves bound by later statute, even though it conflicts with earlier decisions.

There would be broad repercussions, if the next parliament decided to repeal the European Communities Act 1972. Though there are economic, and socio political reasons that may limit this kind of extreme action, the power to do so exists. Having discussed the extent of parliamentary powers, I will now discuss its internal and external influences. A major internal influence is the political power of the electorate25. Parliament would be careful not to displease the electorate by the introduction of laws that seem unpopular.

As advanced by Thomas Paine, a social contract exists between the state and the electorate. He advances the theory that the rights of man are held in trust by the state. These rights must be protected from abuse. Similarly, the notion that political sovereignty belongs to the people and not with parliament is advanced by John Locke. 26 It therefore follows that parliament may have the legal sovereignty but is accountable to the electorate who hold the political power with their vote. 27

The evolving rules of law also bring the doctrine of supremacy under pressure. The justification behind the doctrine of parliamentary sovereignty has been hotly debated. It is believed that sovereignty is held by the government of the day, which by simple majority can easily pass any legislation. This assumption is coming under criticism, because the party in parliament does not always have majority votes in general elections,28 and is therefore unjust. A more representative approach is preferred.