LX1032 Piblic Law Brunel University Assessment Answer

Introduction:

The parliamentary supremacy is traditionally seen to have followed the Dicey model, wherein the parliamentary sovereignty’s principle states that neither more nor less, as per the constitution of the UK, there has been vested full rights to the Parliament for making or amending any law. No individual or body that English law has recognized for having the right for overriding or setting aside the Parliamentary legislation. Modern publications of Alex Carroll have provided a more simplified interpretation of the principles of Dicey, stating that each parliament has been a total sovereign within the period and might legislate on any issue irrespective of the place. The legislation of the Parliament has the ultimate force and cannot make modifications by other domestic or other authorities.[1] In the famous case of R (Jackson) v Attorney General, there had been the introduction of the Hunting Act 2004 in response to the general election program of Labour 2001, the Parliament Act 1949. This led to explicit challenging of the Parliamentary Sovereignty.[2] The fundamental issue, in this case, was the question that developed as a result, making it questionable because it talks about a broad range of concerns concerning Parliamentary supremacy. This explanation of the more comprehensive concerns differs from common opinions on the fundamentals of the UK constitution.

Discussion:

The Hunting Act 2004 and the modifications of the Parliament Act 1949 have been challenged by Jackson. The claims were that the Parliament Act 1949 had been illegal since the passage by the use of the Parliament Act 1911 that Jackson stated had never been the intention of the Parliament during the approval of the Parliament Act 1911. In R (Jackson) v Attorney General, the argument of Jackson had been on the basis of interpreting Section 2(1) of the Parliament Act 1911.[3] It stated that there could be no use of the Act for enacting an Act for extending the maximum term of Parliament exceeding five years. It was due to two factors including the Parliament Act 1911’s enactment, not by the parliament in its whole or the House of Commons, House of Lords, the Monarch, and by the restricted group of chambers, thereafter omitted the House of Lords. This led to being deemed as delegated legislation. Furthermore, there had been an argument that Section 2(1) had an unwritten requirement on the basis of the norm that no enlargement could be possible by the delegated body to the own forces unless specifically authorized to do so. The 1949 Act was illegal because it increased the size of the House of Commons. This was agreed by the House of Lords with the former decision of the Court of Appeal, that the Hunting Act 2004 was upheld. Therefore, Jackson's argument centered on the delegated legislation of the Parliament Act 1949 as this argument led to Lord Hope stating that the enforcement of rule of law by the courts has been the final factor of control upon which the constitution is based.[4] Hereafter, the courts look forward to defining the limits of Parliamentary sovereignty.

The Court of Appeal’s early decision had been agreed upon by the House of Lords, and the Hunting Act 2004 was upheld. However, Jackson's argument hinged on the Parliament Act of 1949 being the delegated law, that allowed it to be questioned in such a manner that the main legislation could not.[5] Furthermore, the interpretation of the Parliament Act 1911 should be according to the concepts of statutory interpretation. This provides that the powers had been bestowed by an enabling Act that could not lead to possible expansion by the body to which they are conferred provided, has been expressly authorized by exact words. Such arguments have been firmly rejected by the Lordships for two reasons that primarily, Lord Bingham states that Sections 1(1) and 2(1) of the Parliament Act 1911 specified that the passage of legislation had been in conformity with such provisions, and should become the Act of Parliament on the Royal Assent that had been denoted. Moreover, Lord Bingham continued to undermine their position of Jackson to note that it was not reasonable to characterize what the Parliament Act 1911 did like that of the delegation of authority to the House of Commons.[6] Therefore, the Act’s main purpose was to limit the Lords' ability to oppose legislation approved by the Commons and not to distribute authority.

The appellant's case was further razed by Lord Bingham with very specific insight into the scope of Section 2(1). It stated that the only limitations on the use of the procedure of the 1911 Act had been expressly stated in the provision of Money Bills for extending the life of Parliament. According to the legislation, Lord Bingham continued to apply the literal rule of interpretation and completed the deconstruction of Jackson's argument, where Section 2(1) applies to 'any Public Bill', subject to specified exclusions.[7] As per Lord Bingham, ‘any’ is to be interpreted in the colloquial and dictionary connotation. The use of such literal rule resulted in the conclusion would be that the bill for amending the Parliament Act 1911. The enactment of such an Act could be in the absence of the House of Lords’ consent, due to the exceptions that have been clearly stated. This would be viewed as the restrictions on the Lordships’ power rather than extending the power of the Commons.[8]Furthermore, Lord Steyn's contention that parliamentary sovereignty was purely a judicial construct is called historically erroneous jurisprudentially ludicrous by Richard Ekins. Ekins contends the theory to be vital for the constitution of the UK since it has been adopted by three parts of the government; while judges accept the norm, they did not originate it and cannot modify it legally. However, Stuart Lakin answers that, in fact, and in principle, parliamentary sovereignty is dependent on-court recognition. Given that the powers of Parliament are derived from the law, have a normative basis to remove the idea of sovereignty from the constitutional landscape.[9] Accordingly, the exercise of authority by the Parliament can only be in conformity with the principles that justify that power.

It appears that the constitutionality of the Parliament Acts has been evaluated by Jackson, which questioned the possibility of authority by the courts for commenting on the passing of the Parliament Acts. In the famous case of British Railways Board v Pickin [1974],[10] Lord Morris ruled that the courts about the precise legal interpretation could not be any over whether it should be on the statutes.The judiciary tends to be not-willing of the judiciary for intervening with the notion of the parliamentary sovereignty having been inspired by the traditional theory of Dicey such that parliament might create or unmake the legislation. The parliament cannot bind or be bound by their successors and no other individual or the body has the right to overrule the Parliament’s Act. In such contrast, the court in the case of Jackson stated that the judiciary might call an Act of Parliament into question by the restriction of the legislative power.[11] It embraces the constitutionalism of the common law and states that essential constitutional rights need to be protected and the responsibility for enforcement is with the courts. Out of the nine justices, there has been direct address by three judges of the question to restrict the parliamentary power and stated that the presentation of the theory of the Parliament’s supremacy by Dicey is pure and absolute, that has now outdated in the modern United Kingdom. This was also reflected in the decision of Lord Hope, stating that the Parliamentary sovereignty seemed to no longer be absolute.[12] The dicta of Jackson referred to the justiciability’s extension to the Acts of Parliament and the concept of a constitutional court for the restriction of parliamentary sovereignty.

Prior to the Jackson case, Parliamentary Supremacy was being condensed. The Human Rights Act of 1998 and Britain's participation in the European Union had already limited the authority of the parliament. The European Communities Act of 1972 required that regulations of the European Union are to be passed in Britain, compromising the UK's legal autonomy. It may thus be argued that, while Jackson was noteworthy where the courts directed at the possibility of overturning the law. It had little influence on the legislative sovereignty, having been compromised by the Human Rights Act and the European Communities Act 1972.[13]Furthermore, the appellants initiated court actions on the individual basis. The appellants were members of the Countryside Alliance but initiated the actions in their own capacity having been explained by Professor Mullen. Given that none of them had been convicted or threatened with prosecution, the doubts regarding their standing to suit may have been raised. The social consequences of the Hunting Act 2004 had already produced ripples throughout the United Kingdom, and as a precautionary step, the government tried to address any concerns that the Act itself could bring before any charges under it were actually launched.[14] When analyzing the position of Parliamentary Supremacy, the issue of justiciability seemed to be critical.

The Parliament is to observe a set of official rules as per the manner and form theory.

Second, the difference between the formal conditions for legislation to be enacted and the content of that legislation eventually defines that theory. It is normatively better to rival theories and offers the clearest account of recent constitutional developments in the United Kingdom. The approach to the argument of method and form states that the subject matter has no such restrictions wherein the parliament is to legislate, the manner and form in which the parliament may act. As a result, the specific processes such as the referendums or the requisite majority require submission to the appropriate House of Parliament. In the Jackson case, there could be the same outcome, but if such point of view had been applied prior to the lawsuit, in the absence of the required majority, the challenge of Jackson might have been deemed void by the courts.[15] Lastly, the technique that appears to be functional and worthy of consideration is Judicial Review. This focuses on including the courts within the process of legislature review.There has been no denying that the successful statute necessitates the legislature to write the law with care and that the courts interpret and administer it expertly. Allowing the courts to comment on and perhaps change some legislation where a constitutional error has happened and cannot be avoided. This would be a much-needed step from the ultimate Supremacy of the Parliament. The courts were constantly seen to attempt and determine the Parliament's true intention in the case of Jackson, relating to the use of the Parliament Act 1911.[16] Had the review process been allowed earlier, the courts could have avoided the constitutional problems and put more focus on the validity issue of the acts in question.

Conclusion:

The famous case of R (Jackson) v Attorney General is based on the interpretation of Section 2(1) of the Parliament Act 1911. Jackson argued that the Act could not be used to enact an Act to extend the maximum term of the Parliament beyond five years. The House of Lords agreed with the earlier Court of Appeal decision and the Hunting Act of 2004 was upheld. In Jackson v Pickin, the Court of Appeal stated that the judiciary might call the Act of Parliament, and restrict the legislative power. Although this appears that Jackson had only evaluated the constitutionality of the Parliament Acts, and raised the question of whether the courts had the authority to comment on passing the Parliament Acts. This embraced the point of view of common law constitutionalism and stated that essential constitutional rights need protection, even from parliament. Jackson had not had much influence on the notion of parliamentary supremacy because it legitimized the Parliament Acts by restricting the legislative power of the House of Lords. Prior to the Jackson case, Parliamentary Supremacy was being curtailed. The Human Rights Act of 1998, and Britain's participation in the EU had limited the parliament's authority.

Bibliography:

1. Primary Sources:

Cases

Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56

Jackson v Pickin [1974] AC 765

2. Secondary Sources:

Articles

Walters M, ‘The Law of Parliamentary Sovereignty’ [2020] A.V. Dicey and the Common Law Constitutional Tradition 162

Kay RS, ‘Changing the United Kingdom Constitution: The Blind Sovereign’ [2018] Sovereignty and the Law 98

Lakin S, ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2018) 28 JSTOR 709

Web Pages

Emrah A, ‘The Principle of Parliamentary Supremacy in the UK Constitutional Law and Its Limitations’ (Dergipark, 2018) < https://dergipark.org.tr/tr/download/article-file/787292> accessed 7 January 2023

‘House of Lords Opinions of the Lords of Appeal for Judgment’ (Parliament Publications, 2020) <https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdf> accessed 7 January 2023

‘Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56’ (United Kingdom House of Lords Decisions, 2015) <https://www.bailii.org/uk/cases/UKHL/2005/56.html> accessed 7 January 2023

‘House of Lords - Jackson and Others (Appellants V. Her Majesty's Attorney General (Respondent)’ (Parliament, 2021) <https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd051013/jack-3.htm> accessed 7 January 2023

‘Law Lords Reject Hunting Appeal’ (The Guardian, October 2017) <https://www.theguardian.com/uk/2005/oct/13/hunting.immigrationpolicy> accessed 7 January 2023

‘Judgments - Jackson and Others (Appellants) v. Her Majesty's Attorney General (Respondent)’ (Parliament Publications, 2018) <https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack-5.htm> accessed 7 January 2023

Lakin S, ‘Parliamentary Privilege, Parliamentary Sovereignty, and Constitutional Principle’ (UK Constitutional Law Association, February 2018) <https://ukconstitutionallaw.org/2013/02/11/stuart-lakin-parliamentary-privilege-parliamentary-sovereignty-and-constitutional-principle/> accessed 7 January 2023

May E, ‘British Railways Board v Pickin - UK Parliament’ (UK Parliament, 2018) <https://erskinemay.parliament.uk/section/5046/british-railways-board-v-pickin/> accessed 7 January 2023

Gordon M, ‘The Manner and Form Theory of Parliamentary Sovereignty: A Response to Jeffrey Goldsworthy’ (Sweet and Maxwell, 2021) <https://www.sweetandmaxwell.co.uk> accessed 7 January 2023

Tomkins A and Millar J, ‘CLAUSE 18 OF THE BILL: PARLIAMENTARY SOVEREIGNTY AND EU LAW’ (Parliament UK2022) <https://publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633ii/633we02.htm> accessed 7 January 2023

‘Parliamentary Sovereignty and the European Convention on Human Rights’ (UK Parliament 2022) <https://commonslibrary.parliament.uk/parliamentary-sovereignty-and-the-european-convention-on-human-rights> accessed January 7, 2023

‘Hunting – Hansard’ (UK parliament, 2022) <https://hansard.parliament.uk/commons/2022-04-25/debates/3B9901EF-11D1-488B-8BF0-B7ECF8991C90/Hunting> accessed 7 January 2023

Press OU, ‘R (On the Application of Jackson and Others) v Attorney General [2005] EWCA CIV 126’ (Loveland: Constitutional law, administrative law and human rights 8E, 2021) <https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_56.htm> accessed 7 January 2023

Refrences

[1] Emrah A, ‘The Principle of Parliamentary Supremacy in the UK Constitutional Law and Its Limitations’ (Dergipark, 2018) < https://dergipark.org.tr/tr/download/article-file/787292> accessed 7 January 2023

[2] ‘House of Lords Opinions of the Lords of Appeal for Judgment’ (Parliament Publications, 2020) <https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdf> accessed 7 January 2023

[3] ‘Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56’ (United Kingdom House of Lords Decisions, 2015) <https://www.bailii.org/uk/cases/UKHL/2005/56.html> accessed 7 January 2023

[4] ‘House of Lords - Jackson and Others (Appellants V. Her Majesty's Attorney General (Respondent)’ (Parliament, 2021) <https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd051013/jack-3.htm> accessed 7 January 2023

[5] ‘Law Lords Reject Hunting Appeal’ (The Guardian, October 2017) <https://www.theguardian.com/uk/2005/oct/13/hunting.immigrationpolicy> accessed 7 January 2023

[6] Kay RS, ‘Changing the United Kingdom Constitution: The Blind Sovereign’ [2018] Sovereignty and the Law 98

[7] ‘Judgments - Jackson and Others (Appellants) v. Her Majesty's Attorney General (Respondent)’ (Parliament Publications, 2018) <https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack-5.htm> accessed 7 January 2023

[8] Lakin S, ‘Parliamentary Privilege, Parliamentary Sovereignty, and Constitutional Principle’ (UK Constitutional Law Association, February 2018) <https://ukconstitutionallaw.org/2013/02/11/stuart-lakin-parliamentary-privilege-parliamentary-sovereignty-and-constitutional-principle/> accessed 7 January 2023

[9] Lakin S, ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2018) 28 JSTOR 709

[10] May E, ‘British Railways Board v Pickin - UK Parliament’ (UK Parliament, 2018) <https://erskinemay.parliament.uk/section/5046/british-railways-board-v-pickin/> accessed 7 January 2023

[11] Gordon M, ‘The Manner and Form Theory of Parliamentary Sovereignty: A Response to Jeffrey Goldsworthy’ (Sweet and Maxwell, 2021) <https://www.sweetandmaxwell.co.uk> accessed 7 January 2023

[12] Tomkins A and Millar J, ‘CLAUSE 18 OF THE BILL: PARLIAMENTARY SOVEREIGNTY AND EU LAW’ (Parliament UK2022) <https://publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633ii/633we02.htm> accessed 7 January 2023

[13] ‘Parliamentary Sovereignty and the European Convention on Human Rights’ (UK Parliament 2022) <https://commonslibrary.parliament.uk/parliamentary-sovereignty-and-the-european-convention-on-human-rights> accessed January 7, 2023

[14] ‘Hunting – Hansard’ (UK parliament, 2022) <https://hansard.parliament.uk/commons/2022-04-25/debates/3B9901EF-11D1-488B-8BF0-B7ECF8991C90/Hunting> accessed 7 January 2023

[15] Press OU, ‘R (On the Application of Jackson and Others) v Attorney General [2005] EWCA CIV 126’ (Loveland: Constitutional law, administrative law and human rights 8E, 2021) <https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_56.htm> accessed 7 January 2023

[16] Walters M, ‘The Law of Parliamentary Sovereignty’ [2020] A.V. Dicey and the Common Law Constitutional Tradition 162

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