Orthodox View in Light of Judicial Judgments

Parliamentary sovereignty

In his review on the judgment in Jackson v Attorney General, Professor Mullen explored the question on whether the orthodox view of parliamentary sovereignty may be displaced by a view that sees the Parliament’s legislative power being subject to legal constraints and concluded that a change of this nature can only come if it proceeds from assent of the other institutions of government and not simply a judgment of the court. This essay critically assessed the current position of the orthodox view of parliamentary sovereignty and whether it can be said that the view of Parliamentary sovereignty propounded by Dicey and highlighted by Mullen is an accurate description of the constitutional position of the United Kingdom Parliament. The essay argues that the orthodox view remains accurate description particularly in light of the judgment of the Supreme Court in Miller v Secretary of State. If you require politics dissertation help, our team is there to provide the best possible expert guidance.

It was Dicey who has expressed the most important description of parliamentary sovereignty and a view that is considered to be the orthodox view on parliamentary sovereignty; he explained the classic account of the doctrine in a pure and absolute sense. This classic or orthodox account is based on the principles that Parliament can make or unmake any law and that there is no other body that can set aside an Act of the Parliament. This would mean three things: that there is no restriction or limitation on the Parliament as to the subject matter of the law; that the law made by one Parliament can be repealed by a later Parliament; and that Parliamentary law is not subject to judicial review. At its most basic sense, the doctrine is supposed to mean that Parliament has no legislative superior and even courts cannot invalidate or supersede Parliamentary Acts.

The orthodox view of Parliamentary sovereignty is based on the premise that Parliament is supreme and this is effected through three principles: first, that parliament has the power to legislate on any matter and there are no restrictions on its powers; second, Parliament cannot be bound by its predecessor, so that it can always unmake any law; third, that courts or any other authority is precluded from testing the validity of statutes and judicial review cannot be used to declare Parliamentary Acts as invalid.

Admittedly, there have been reasons to suppose that this orthodox view of Parliamentary sovereignty had been watered down, particularly with the UK’s membership of the European Union. Indeed, the challenges to orthodox view of parliamentary sovereignty have come with the UK’s accession to the EU, and its making of laws that provide its courts powers to review parliamentary legislation for the purpose of harmonising it with the EU law. This is clear from the developments that relate to the UK’s membership of the EU. The first important development was the enacting of the European Communities Act 1972, which under Section 2(1) provides the ‘Directly effective EU law’ principle and requires courts to give effect to the laws of the EU. Two cases in which courts in the UK used this provision to declare incompatibility between EU law and a Parliamentary Act are R (Factortame Ltd), in which the House of Lords suspended Parliamentary Act and referred the matter to the European Court of Justice; and R v Secretary of State for Employment, in which court declared incompatibility between Parliamentary Act and the EU law. The next development was the enacting of the Human Rights Act 1998, Section 4(2) of which allows courts to declare incompatibility between parliamentary law and ECHR rights. In A v Secretary of the State, the House of Lords declared incompatibility between ECHR and a provision related to detention in the anti-terrorism legislation enacted by the Parliament. The fact that the impugned provisions were shelved went on to be relevant to considering that there was watering down of the orthodox doctrine of Parliamentary sovereignty.

Nevertheless, the doctrine has been described as “the bedrock of the British Constitution” by Lord Bingham, and considered to have continuing importance in the British constitution as observed by Lord Steyn. Even if the developments discussed above were at one time thought to be relevant to formation of the view that there are limits even on the Parliament’s powers, there are also counter-arguments that demonstrate that despite these developments, the orthodox view of Parliamentary sovereignty remains the accurate description of the constitutional position of the United Kingdom Parliament. For instance, Lord Bridge has observed in Factortame, that in absence of a written constitution in the UK, the doctrine of parliamentary supremacy is a hypothesis that can be altered at any time.

This can mean that even if Parliament’s powers seems to have suffered some limits due to the membership of the EU, this position can be changed at any time and Parliament can change the laws that give authorities to the courts to give effect to EU laws or declare incompatibility between ECHR and Parliamentary Acts; thus, Parliament can once again become supreme in the orthodox sense. Even with the continuing membership of the EU, as Miller has demonstrated recently, the Parliament remains the sovereign in the orthodox sense. This is discussed below.

In Miller, the Supreme Court was faced with a question on whether the government’s powers exercised under Article 50 of the Treaty of the European to trigger withdrawal from the EU without parliamentary approval were valid or not. The government exercised these powers under Article 50 and claimed that the power was validly exercised. On the other hand, the Supreme Court held that the government could not exercise this power without authority of the Parliament. Ewing sees this judgment as a reinforcement of the orthodox doctrine of Parliamentary sovereignty and notes:

“When all is stripped away, the core of both of the major questions the court was asked to address is the role of the Westminster Parliament in the modern British constitution, the reasoning if not the result paradoxically responding in terms that reflect the sentiment of the referendum result, at least in those parts of the country where a majority of those voting did so to leave the EU. In thus delivering a clear statement of constitutional orthodoxy and a clear re-assertion of parliamentary sovereignty as the fundamental principle of the constitution, Miller has swept aside recent uncertainties, equivocations and qualifications.”

The doctrine of Parliamentary sovereignty interacts closely with the doctrine of separation of powers. Separation of powers relates to the functions of the organs of the government wherein each organ of the government has certain functions that the other organs of the government cannot interfere with these functions. Lord Diplock has explained the principle of separation of powers in the English constitutional law, as per which the Parliament makes the law and the judiciary interprets the law.

In a democracy, the Parliament is the appropriate body for making the laws because it is an elected body. This has also been stated by Sir Philip Sales who argues that in the context of making the law, the parliament is the only appropriate body because it is the only one that can give effect to the will of the people. This explains the enduring significance of the principle of Parliamentary sovereignty and also how the Miller decision of the Supreme Court upholds the orthodox view of the doctrine.

Rule of law and executive

Lord Neuberger has stated that the most important function of the courts is that of controlling the excesses of the executive, and protecting individuals against the executive as part of the upholding the rule of law. In this essay, the principle of the Rule of Law is discussed and it is critically analysed whether the judiciary have succeeded in performing this function.

The notion of rule of law is seen as a limitation upon the power of the executive and to ensure that the executive does not become arbitrary or exercise its powers in an excessive manner. Judicial review has been a tool to ensure that the executive action remains within the purview of the Rule of Law. Judiciary has generally supported the use of judicial review in context of the Rule of Law; this is reflected in the observations of Lord Denning in Magor and St. Mellons Rural District Council v Newport Corporation. However, when the executive is acting under the law made by the Parliament, courts would be constrained to not rule against such actions. There is a presumption in favour of the Parliamentary Act being in accordance with the Rule of Law as held in R v Secretary of State for the Home Department ex parte Pierson, it was held that “unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law”. This means that if the acts of the executive are in accordance with the powers and functions allowed it under an Act of Parliament, there will be a presumption that the Parliament would not have legislated contrary to the rule of law. This would lead to the situation where the courts are better placed to protect individual rights when the law of the Parliament does not specifically provide executive with powers that are deliberately meant to restrict individual rights.

Rule of law has formal and substantive aspects; the former aspect is concerned with how the law is made procedurally and the latter is related to its content. As separation of powers is not applied in the strictest sense in the UK, there is overlapping of functions between the Parliament and the executive. Although Parliamentary law is outside the scope of judicial review, the case law does suggest that substantive approach to the rule of law has been applied by the courts where the Parliamentary law is open to interpretation, and courts can interpret the law in accordance with the principle of rule of law. In Thoburn v Sunderland, the court used the principle of rule of law to qualify the principle of implied repeal of constitutional statutes. In general however, Rule of law is applied as a limitation upon executive power and that too under the substantive approaches to rule of law. The GCHQ case is an example of this approach because illegal, irrational, and procedurally improper actions can be reviewed. This suggests that the courts have sought to protect the rights of individuals using a substantive approach to rule of law so that the interpretation of the law and the powers of the executive can be in accordance with principles of rationality where the law may be open to interpretation. The principle of separation of powers is implicit in the notion of rule of law and it goes to provide that the judiciary has oversight over executive actions because it is the function of the judiciary to interpret the law made by the legislature. The judiciary applies its powers of judicial review over executive acts and decisions to assess the legality of such actions and decisions on the basis of whether such decisions are rational, reasonable and legal.

The Constitutional Reforms Act 2005 is relevant to understanding the Rule of Law as coming within the purview of the courts and Lord Bingham has interpreted Section 17(1) of this Act to mean it is the courts that define what Rule of Law means. Section 17(1) provides that the Lord Chancellor is under an oath to ‘defend the rule of law and defend the independence of judiciary.’ Section 1 of the Constitutional Reforms Act 2005 provides that the existing principle of the rule of law is not adversely affected by any provision of the Act.

The power of judicial review of the executive’s actions is also considered to be a part of the principle of Parliamentary sovereignty and can also be seen in the context of separation of powers principle as the courts give importance to this notion of Parliament being the only appropriate body to make laws and that should not be subjected to too wide a power of judicial review, but at the same time, the executive comes within the purview of the judicial review. The question is whether courts have been successful in performing this function and protecting individuals from excessive powers of the executive as part of the upholding of the principle of rule of law.

In the UK, courts have demonstrated hesitance against overreaching its powers with relation to not just Parliamentary Acts, but have not shown similar hesitation for reviewing executive actions. In Council for Civil Service Unions v Minister for the Civil Service (GCHQ case), the court held that judicial review could be allowed on ministerial action even in cases where the Royal Prerogative had been employed. However, the history of judicial review is not always uniform in showing judicial review being applied on executive action. For instance, in R (Gentle) v The Prime Minister, the House of Lords held that it could not authorise the establishment of an investigative panel to adjudge the lawfulness of government’s decision to deploy personnel in Iraq. However, it can be stated at the outset that unlike its relationship with the Parliament, which does not allow the judiciary to test the validity of the Parliament’s actions, there is no bar on the judiciary to test the validity of executive actions. The doctrine of ultra vires has been developed in the common law for the express purpose of assessing the validity of executive action. The judiciary has reviewed ministerial and executive action as if it is ultra vires the Parliamentary law. In doing so, it can be argued that the judiciary has sought to disallow executive actions under certain circumstances; the Wednesbury principles are relevant here and these were laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.

In Council for Civil Service Unions v Minister for Civil Service, the court laid down the criteria for judicial review over executive actions that are illegal, irrational, and procedurally improper. In Dr Bonham’s Case, Sir Coke observed that even Acts of Parliament can be subject to common law review if these Acts are “against common right and reason, or repugnant, or impossible to be performed”, then they can be adjudged to be void”. Nevertheless, this statement on judicial review does not appear to be a dominant view with respect to judicial review of Acts of Parliament, but it does relate to the exercise of judicial review to assess the legality of executive actions.

With respect to the protection of rights of individuals and how the courts play a role in ensuring that the executive does not exceed its powers and abides by the Rule of law, it is pertinent to mention that the Human Rights Act 2005 is also seen as a way of effecting the principle of the Rule of Law. This legislation was enacted to implement the European Convention of Human Rights and is considered to bring human rights protection in the UK at par with the international law of human rights. This is also supported by the observation of Lord Bingham who identified international law as one of the eight principles that are involved in the principle of rule of law. It can be concluded that to a great extent the courts have been able to use Rule of Law to protect individual rights.

Primary Education Placement Act 2018 (fictitious)

The issue in this case is whether the decision by the authority in the case is illegal and subject to judicial review on that account. The issue arises from the refusal of the Hudson District Council on application by Eleanor for a primary school place for her son, James, at Hudson Primary School.

The issue in this case is whether the decision by the authority in the case is illegal and subject to judicial review on that account. The issue arises from the refusal of the Hudson District Council on application by Eleanor for a primary school place for her son, James, at Hudson Primary School.

Illegality has been explained as the condition in which the decision made by the executive suffers from the decision maker’s failure to correctly understand the law under which it has the specific powers are given to him and failure to apply the law. Lord Diplock’s explanation on what illegality means is a definitive explanation of this: the decision maker must understand the law correctly and give effect to it. The overarching principle is that the executive actions and decisions must fall within scope of power conferred by the legislation.

In cases where the law allows discretion to the executive authority to make a decision, the failure to exercise such discretion is also illegality; it has been held that there is no unfettered discretion and where discretion is conferred, it is done with the intention of it being used to promote the legislative policy so that failure to apply such discretion is also illegal. Illegality can also be related to the actions of the administrative authority that are in excess of the powers given to them or where the powers given are exercised in a way that is unreasonable in the legal sense.

Illegality can be of different types. A decision can be illegal because the authority has acted without legal authority. Decisions that have errors of law and fact are illegal. Where the decision maker fails to exercise a discretion conferred on it, decision is illegal. Finally, abuse of discretion can also give rise to illegal decisions. These are explained here. Where the law provides a power to the local authorities to establish baths, wash-houses, and bathing spaces, the decision of the authority to establish a local authority-operated laundry was held to be illegal because the authority did not have the legal authority to establish laundry based on the reading of the law which showed that there was no express or implied power given to the Council to conduct such an operation. Errors of law and fact can vitiate the decision of the authority and make is illegal. Errors of law can happen when the decision-maker misinterprets the applicable law. Errors of fact can happen when the decision-maker misinterprets facts of dispute and judicial review can be applied for where the decision maker reaches findings of fact based no evidence or contrary to evidence.

Discretion is to be applied by the authorities where given by the law, and not applied where not given. Decision-makers can make policy, but it has to decide each case on its merits and the general rule is that where authorities have statutory discretion it should still consider each case on merits because the authority should see the individual circumstances of each case. When applying discretion, decision-makers must not take into account all irrelevant factors. Even when applying discretion, decision-makers should not act beyond their powers, and should not apply any policy in an over-rigid manner.

The Hudson District Council has refused admission to James on the ground that the home address is 3 miles outside Hudson. In making this decision, the Council has sought to apply discretion and given reasoning that distances children travel to school affects children and also causes pollution when parents take their children to school by car. No such discretion for refusing a place in a school is provided in the law itself. Section 8 of the Primary Education Placement Act 2018 (fictitious) provides the power to local authorities to allocate primary school places to children living in their area. There is no discretion that is implied in this Section that allows the Council the power to refuse a place based on the distance of the child’s home from the school. In her application, Eleanor has provided evidence of her home in Hudson in the form of a Council Tax letter. By refusing the place to James in the school, the Council has applied discretion, which is not given by the law. Even if it is argued that discretion is provided to make policy, and decision-makers can make policy, each case still has to be decided on its merits. Even where authorities have statutory discretion, each case should be decided on merits and individual circumstances of each case has to be seen. Even when applying discretion, decision-makers should not act beyond their powers, and should not apply policy in a manner that is rigid.

The Council bases it decision to not offer James a place in the Hudson Primary School and instead offer him a place at a specialist school is based on the surmise that James suffers from severe dyslexia. It is on this ground that the Council has made the decision to offer him a place at a specialist school located in a neighbouring county. According to Section 10 of the Primary Education Placement Act 2018 (fictitious), local authorities have the duty to treat children with Special Educational Needs in the same way as all other applicants, except in cases where evidence demonstrates that the child should be placed in a specialist educational establishment. In this case, Eleanor can argue that the Hudson District Council has committed an illegality because it has taken a decision that is based on the failure of the Council to understand the law correctly, because it has failed to appreciate the requirement in Section 10 to not treat children with special educational needs as differently from other applicants unless evidence submitted with the application demonstrates such a different treatment. In other words, the Council’s decision to offer James a place in the specialist school can be legal only if there is supporting evidence that demonstrates that James needs to be placed in a specialist school. As no such evidence is placed before the Council along with the application, the Council is patently in contravention of Section 10 by making a decision that is not supported by evidence.

On the contrary, the decision of the Hudson District Council suffers from illegality based on error of fact. The Council has decided to offer a place to James in a specialist school based on the clear error of fact which is that James does not suffer from severe dyslexia as stated by the Council but mild dyslexia. The evidence submitted by Eleanor, along with the application, clearly notes that James has mild dyslexia which does not require specialist education. By offering James a place in a specialist school based on the ground that he has severe dyslexia, the Council has made an error that is clearly based on an error of fact.

Books

Allan TRS, ‘The Rule of Law’, in David Dyzenhaus, Malcolm Thorburn (eds.), Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press 2016).

Auburn J, Moffett J, and Sharland A, Judicial Review: Principles and Procedure (OUP 2013).

Barnett H, Constitutional & Administrative Law (Routledge 2014).

Bingham T, The Rule of Law (Penguin 2010).

Broadbent G, Public Law Directions (Oxford University Press 2009).

Dicey AV, Introduction to the study of the law of the constitution (Macmillan 1915).

Fenwick H, Civil Liberties and Human Rights (Routledge 2007).

Hotsettler J, Champions of the Rule of Law (Waterside Press 2011). Oliver D and Drewry G, The Law and Parliament (Cambridge University Press 1998). Wright T, The Politics of Accountability, in M. Elliott, & D. Feldman (eds.), The Cambridge Companion to Public Law (Cambridge: Cambridge University Press 2015).

Journals

Ewing K, ‘Brexit and parliamentary sovereignty’ (2017) 80 (4) The Modern Law Review 711.

Helmholz RH, ‘Bonham’s Case, Judicial Review and the law of nature’ (2009) 1(1) Journal of Legal Analysis 325.

Mullen T, ‘Reflections on Jackson v Attorney General: Questioning Sovereignty’ (2007) 27(1) Legal Studies 1.

Sales P, ‘Judges and Legislature: Values into Law,’ (2012) 71(2) Cambridge Law Journal 287.

Bogdanor V, Human Rights and the New British Constitution, Justice Tom Sargant memorial annual lecture 2009.

Craig PP, ‘Formal and substantive conceptions of the rule of law: an analytical framework’ (1997) accessed

Triggs G, ‘Lord Bingham: Of Swallows and International Law’, Legal Studies Research Paper No.8/116, October 2008, accessed

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