The problem to be addressed in this essay is the issue of the British Parliament's ability to bind its successors, with particular attention to the Northern Ireland Act 1998 s. 1 (1). Parliament's ability to limit its successors also relates to other issues which I will be looking at in detail. I will be focusing on a brief history of parliamentary supremacy and to what extent it is supreme, considering both the positives and negative of this. It seems appropriate to briefly look at the opinions of AV Dicey as well as cases where some think Parliament has bound its successors or has been bound by its predecessors.
I will also be looking at the theory of 'manner an form' in terms of legislation and how this applies to the provision in the Northern Ireland Act 1998, s. 1 (1). I defend the thesis that parliament should not be able to pass legislation which, in any way, limits or redefines it's successors, although in this case it becomes apparent that this might have occurred in relation to the Northern Ireland Act 1998. Can Parliament limit its successors? In the case of the Northern Ireland Act 1998, we must first look at s 1(1).
"It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section, in accordance with schedule 1. " The section entails that Northern Ireland will remain part of the United Kingdom, and therefore is under its law-making power, until such a time that the people of Northern Ireland wish otherwise.
This entails that any future parliament is bound as it will have lost the legal capacity to repeal the Act of 1998. The Act might not be repealed; it requires a poll to take place with a majority outcome in favour of no longer being part of the United Kingdom. In this way, the Act of 1998 s 1(1) has indeed subjected future Parliaments to be bound, until such a time that the people of Northern Ireland vote otherwise. Although, an Act of this kind is an example of a restraint which Parliament has placed upon it, but which doesn't debilitate Parliament from acting.
Overall, it is accepted that no Parliament may bind its successors, in as much as future parliaments may repeal Acts from past parliaments which it does not wish to inherit. While certain Acts are seen to bind future Parliaments, these future Parliaments which we talk of are perfectly able to repeal the Acts which they refute. There is an exception to this, this is apparent over the issue of 'manner and form'. Parliament may limit it's successors as to 'manner and form' of legislation.
The provision in the Northern Ireland Act 1998 has bound its successors in terms of 'manner and form' by determining the only way in which the Act may be repealed, through a majority poll by the people of Northern Ireland. A good example of a Parliament possibly binding its successors as to 'manner and form' can be found in Hilaire Barnett's Constitutional and Administrative Law. I've included a brief summary of it here. For example, a Labour parliament may be in power and it passes an Act which could not be repealed or amended unless the Bill to do this received two-thirds of the votes in the House of Commons.
Then say that a future parliament, perhaps a Conservative one, passed an Act to repeal the earlier Act then the courts would uphold that the subsequent Act was valid, even if it was known that the Bill didn't get two-thirds of the vote in the House of Commons. (See 'doctrine of implied repeal' later. ) There are differing arguments over what the requirement of a poll in an Act means for future Parliaments and their ability to be sovereign. Sir Ivor Jennings holds the view that the requirement of a poll to repeal the Act is a change in the composition of Parliament and so is binding on the legislature.
It appears clear that Parliament can indeed bind it's successors as to the 'manner and form' of legislation. Different forms and procedures for legislation, such as getting two-thirds majority, or 70% majority for example, to repeal Acts might be able to protect the requirements in suitable proceedings that a repeal by simple majority is ultra vires and is therefore not, in the sense required by law, an Act of Parliament. Over the question of whether parliament can bind it's successors it appears necessary to initially refer to the issue of parliamentary supremacy.
Parliamentary supremacy is regarded by many as an integral criterion of the British constitution. This opinion is shared by many, including Dicey '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'. 1 The history of parliamentary supremacy should be considered briefly in order to understand, to a fuller extent, the means by which parliament emerged as the pre-eminent/superlative legislative body of the state.
It was the Crown and Parliament Recognition Act 1989 which rightfully declared it to be a constituted Parliament. This Act also included the Bill of Rights. As article 9 shows, parliament is now supreme; 'The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament. ' The Revolution of 1688 brought an end to debates between monarchs and houses of parliaments over issues of supremacy. The Revolution made it clear, to a further extent that Parliament was to appear as the primary and prevailing law-maker in the country.
As Lord Reid made it clear in one case: ' in earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete. 2 Through Dicey, the unlimited powers of Parliament to legislate can be placed in three main headings; the power to make any law whatsoever, one manner of law-making and the absence of power to bind succeeding Parliaments. 3
Parliament now appears to be completely supreme; all legislation now takes precedence over and could change the prerogative or common law. Any piece of legislation which parliament wishes to accomplish, after being received through the appropriate channels, can become Law in our state. This is seen to have both negative and positive aspects. Negative aspects include that 'there is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of parliament, or which(to express the same thing in other words) will be enforced by the courts in contravention of an Act of Parliament.
'4 The positive entails that parliament may legislate over any topic, but that parliamentary rulings and enactments must be recognised by the courts. It can however be explained that simply because statute law is superior this does not mean that Parliament may legislate upon anything, as will be shown. It is important to briefly look at Parliamentary supremacy towards a better understanding of Parliaments true power and ability. It's also of importance to consider past situations where Parliament has attempted to bind its successors. In the case of Vauxhall Estates Ltd v. Liverpool Corpn.
5 The Housing Act of 1925 changed the 1919 rules of compensation and in this case the court held that the 1925 Act must prevail over the 1919 Act. The argument presented that s 7(1) bound future parliaments, therefore meaning that later parliaments wouldn't be able to legislate consistently with the 1919 Act. As Maughan IJ stated from the case of Ellen Street Estates ltd v. Minister of Health6, 'the legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal.
If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of Parliament. ' The above mentioned cases are precedents in the argument that Parliament may never bind or limit its successors, in the mind of the courts. The 'doctrine of implied repeal'7 was apparent in Vauxhall Estates ltd v. Minister of Health whereby the later Act is applied by judges. The doctrine of implied repeal is how judges give effect to the rule that Parliaments may not be bound by their predecessors or bind their successors.
The judges must apply the later Act, where two Acts are in conflict with each other, and respect the sovereignty of the present Parliament. Whether Parliament may bind its successors or not is a limitation on legislative supremacy and a good example of it. It's considered a characteristic of paramount importance that Sovereign can't have any legal restraints placed upon it, meaning rules from predecessors can't bind present sovereign, and otherwise the present sovereign would in fact not be sovereign. I will now consider other views over Parliament's ability to bind its successors.
It is true that certain types of legislation, once made law in our state, cannot be undone by any later Act, it is the statute itself which must be repealed. For example, the accession of Heligoland to Germany in 1890 approved by Parliament was, 60 years later, repealed by Parliament. The Parliament repealed the statute by which accession was approved. Parliament, once it has conferred independence to a colony it may not take it away at a later stage. The general practice since 1960 has meant that no Act of parliament 'shall extend or be deemed to extend' to the independent country as part of its law.
It is universally accepted that conferment of independence is irrevocable. This therefore means that Parliament may bind it's successors through ceding territory and conferring independence. 'Parliaments may restrict the geographical area over which future Parliaments may legislate effectively'8. This is one of the ways in which it is argued that Parliament has bound its successors. In this case, Parliament has bound its successor's ability to legislate effectively in the geographical area of Northern Ireland. Parliaments, however, do to some extent take preventive measures to not bind future parliaments.
With matters of devolution, to Scotland and Northern Ireland for example, there is always a clause in the relevant acts to be found which passes some law making powers on devolved matters to say, Scotland, but the United Kingdom keeps its own supreme power for the whole of the United Kingdom. Westminster parliament has even kept the power to repeal the entire scheme of devolution, ensuring that future Parliaments would not have lost any sovereignty as it would be at will to withdraw devolution and resume it's supreme law-making abilities if it so desired.
To conclude the question asked whether Parliament has bound its successors in terms of the Northern Ireland Act 1998 s 1(1), the answer in my view would have to be that Parliament has indeed not bound its successors. Acts passed by Parliament, whatever their content can be repealed by further Parliaments, and therefore successive Parliaments are in no way bound by the earlier Acts. In the courts, the older Act which may have been joined by a later Act, it is the later Act (made law by the present Parliament) which is prevalent and therefore applies, according to the doctrine of implied repeal.
From the extent of parliamentary supremacy and how this affects its ability to limit its successors, to how Parliament could be able to bind its successors, it is clear that Parliaments cannot bind their successors as each new Parliament is sovereign and can express this sovereignty however it wishes in terms of making laws. Future parliaments may be bound by past Acts in terms of the Act's inclusion of 'manner and form' of legislation, in as much as it may include certain conditions for the Act to be repealed such as achieving a two-thirds or certain percentage majority.
Although, future Parliaments may choose to repeal the provisions, they may even choose to completely ignore the later Acts. Overall, Parliaments cannot bind their successors, it is a fundamental rule that this cannot happen. Parliaments are supreme. Past Acts made by past Parliaments are not relevant to the present Parliament, in that any Acts which they wish to change can be changed, when passed through the appropriate channels in Parliament. New Parliaments are sovereign and cannot be sovereign if they were to be bound by predecessors, they must be able to legislate effectively without any limits placed upon them.