Dicey and Parliamentary Supremacy

One of the greatest writers about the British Constitution was Albert Venn Dicey. He lived from February 4, 1835 to April 7, 1922. His first major work, "An Introduction to the Study of the Law of the Constitution" appeared in 1885. He is most famous for his work in describing and defining the doctrines of "Parliamentary Sovereignty" and the "Rule of Law".

The doctrine of parliamentary supremacy was summarised by Dicey in three points:

Parliament can make law concerning anything. - this is in contrast to the position in many countries where the acts of the legislature can be struck down for conflicting with the Constitution (as can happen in the USA after the Supreme Court claimed the power in Marbury v Madison)

No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament) - put another way, no incoming Parliament is bound by previous parliaments. Again this contrasts with other countries where certain rules are 'entrenched' - meaning the rule can either never be repealed (as with the French Constitution Art 89 "The republican form of government shall not be the object of any amendment") or requires special procedures to amend ( such as Art 5 of the US Constitution requiring 2/3rd of all States or 2/3rd of both House of Congress to propose an amendment - and ratification of the amendment by3/4th of all state legislatures)

A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.
There is a very useful article on recent developments on Wikipedia (NOT A SOURCE I WOULD GENERALLY USE OR TRUST) - but whoever the author was, they have produced a useful resource.

Recent developments

Parliamentary sovereignty prevents judicial review of primary legislation passed by Parliament. However, in the late 20th and early 21st centuries, the notion of parliamentary supremacy was modified under the influence of five principal sources: The devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly). All three assemblies can pass primary legislation within the areas that have been devolved to them. As the system remains devolved and not federal, the powers of these assemblies stems from the UK Parliament and can be suspended.

The UK's membership of the European Economic Community, later the European Union, from 1973. The EU represents, as the European Court of Justice ruled in 1963 in the case Van Gend en Loos, a "new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields". The UK became part of that legal order - though the fact that UK membership of the EU has been brought about through Acts of Parliament - principally the European Communities Act 1972 - raises the possibility that Parliament could, as a matter of UK law, pass further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK. {As subsequent events have shown!}

Following the case of Thoburn v Sunderland City Council certain statutes are protected as Constitutional Statutes. The case involved amendments to the Weights and Measures Act 1985 by the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 pursuant to Directive 80/181/EEC. This stated that Imperial measurements could be displayed so long as the metric measurements were displayed in larger type beside them. Thoburn was convicted for only using Imperial measurements. In his defence he argued that allowing even limited use of Imperial measurements was in contravention of the relevant directive and therefore in contravention of Section 2(2) of the European Communities Act 1972. This would have invoked the doctrine of implied repeal which is essential to the doctrine of Parliamentary Sovereignty. In his judgment, Lord Justice Laws held that certain statutes of constitutional importance including Magna Carta and the European Communities Act 1972 could not be repealed by implied repeal. As such, this has slightly limited Parliament's sovereignty.

The enactment of the Human Rights Act 1998 which incorporates part of the European Convention on Human Rights into domestic law. The Act gives UK courts the power to issue a declaration of incompatibility where they believe that the terms of an Act of Parliament are in contravention of the rights guaranteed by the Act. The effect of the declaration is not to annul the Act but send a signal to Parliament which may then choose to amend the offending provision. As with the UK's membership of the European Union, the principle of parliamentary supremacy means that Parliament can at any time vote to repeal the Act and indeed the UK's ratification of the Convention itself.

The increasing use of referendums. Although the result of a referendum is in no way binding on Parliament unless it has previously agreed that this will be case, in practice there will be considerable pressure on Parliament from the electorate to take the result into account.

However, Parliament may withdraw from the most of the commitments it has made or repeal any of the constraints it has imposed on its ability to legislate. Thus, Parliament theoretically remains almost entirely sovereign. The qualifier "almost" is provided because in 1921, after a century of dispute, Parliament passed the Church of Scotland Act 1921 which finally agreed that it does not have sovereignty over the Church of Scotland, the established church in Scotland.

There is a concept in political science of 'legal' and 'political' sovereignty. It can be argued that legal sovereignty has not been lost, because Parliament still retains all its theoretical powers. There are no legal limits on Parliament's sovereignty. However, as it is highly unlikely that the UK would repeal the European Communities Act and leave the EU, and it is unlikely the devolved legislature would be abolished, there are significant political limits on the sovereignty of Parliament. Nevertheless, it remains the case that the UK Parliament could do so without seeking the mutual consent of the EU or the devolved legislatures, as it did with the abolition of the Parliament of Northern Ireland in 1972, and that if it did, these repeals would be legally and politically binding.

This stands in contrast to the Acts of Parliament which have been used to grant independence from the UK to former dominions and colonies in the British Empire. Following the Balfour Declaration, the Statute of Westminster 1931 established a status of legislative equality between the self-governing dominions of the British Empire and the United Kingdom, and provided that Acts passed by the UK Parliament would not apply in the dominions without a dominion's express consent. It is difficult to see how the UK could later resile from that position. By way of further example, the UK Parliament passed the Canada Act 1982 which stated that the UK Parliament would no longer be able to amend the Canadian constitution. If the UK parliament were to repeal or amend the Canada Act 1982, it would be unenforceable as Canada is no longer subject to UK sovereignty.

Of course this year we have had the decision in R (Miller) v Sec of State for Exiting the European Union. A Must Read!!!

Enforcing Rights

Rights aren't much use if the means do not exist to enforce them. That underlies the opposition to the recent Legal Aid "reforms" (if you haven't done so already, it's worth looking at the four videos I posted on Friday - starting here.)

When the treaties which began the development leading to today's European Union were signed, some member states expected that rights for individuals arising in EU law would only be enforceable in the traditional way - by Member States or Institutions taking action against failures by other states or the institutions themselves. They would be the only ones who could stand up for the rights of individual citizens.

But the European Court of Justice developed the concept of "Direct Effect" - which means that, if certain criteria are met, an individual can enforce their right in a NATIONAL Court.

The breakthrough case was "van Gend en Loos v Netherlands Inland Revenue Administration". It's one of the key EU law cases - and every Law student should read it to follow the Court's reasoning  - it's available to read here.

There are other ways to enforce rights if there is no Direct Effect - these are "Indirect Effect" and "State Liability".

The following diagram sets out a logical approach to considering how an individual might enforce a right arising in European Law. (A frequently occurring question in exams). First consider whether there might be direct effect; if there is not, or may not, be direct effect then consider if indirect effect may provide the remedy. If neither of these can help, then the State should be sued under State Liability. Direct and Indirect Effect actions must be brought against the body whose action has immediately affected the individual (The employer; the company...)

Click on the picture to see the full sized version (works on some computers) or click on picture and print). I've highlighted in red the matters which would require detailed discussion - so make sure you are confident in using the relevant case law.

 

 

(If this has been useful to you - please share this post with others)

Getting remedies in the British courts

Britain's membership of the European Union gives rights which apply to individuals. Normally any 'rights' arising from a treaty are only enforceable by individuals if Parliament legislates to allow the specific right to be actionable.

Early in the development of the EU, the European Court of Justice - in the leading case of Van Gend en Loos (1963), the Court laid down the principle of direct effect. In later cases the court provided further avenues for enforcing rights, should the criteria required for direct effect not be met.

So, when faced with the issue of whether an individual can enforce a right arising in EU Law in the national court - the following steps should be followed-

1. Consider if the right claimed is "clear, precise and unconditional" in the European legislation (Primary legislation - the Treaties; Secondary legislation - Regulations; Directives & Decisions).


2. If the right arises in a Treaty Article or a Regulation - and the answer is yes. There is direct effect.


3. If the right arises in a directive two further criteria must be met:-


4. Consider if the date for the implementation of the directive has passed - a straightforward question. If it hasn't there can be no direct effect.


5. If it has, then you must consider if the body being claimed against is an "emanation of the State". That term is defined in Foster v British Gas - "a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals"


6. If all the criteria are met - then there can be direct effect. If not, then it will be necessary to rely upon


7. Indirect Effect - the national court will try to read (interpret) the national legislation to give effect to the right. That may be possible, without doing violence to the language of the national legislation.


8. Direct and Indirect Effect can be used when the body or person being sued is the body or individual who failed to give effect to the right. If neither can be used, only one option remains. The Government can be sued for "State Liability". This right first arose in the Francovich case.


9. The criteria for State Liability (amended from Francovich) are
   (1) It must be an infringement of a rule of law intended to confer rights on individuals
   (2) There must be a "Sufficiently serious breach" In Dillenkoffer - failure to implement the directive within the deadline set out in that directive would of itself be a sufficiently serious breach. Otherwise the breach must be ‘manifest and grave’ – relevant considerations include

i. clarity and precision of the rule breached
ii. measure of discretion left by that rule to national authorities
iii. whether infringement or damage was intentional or involuntary
iv. whether any error of law excusable or not
v. possible contributory position of EC institutions
vi. adoption or retention of measures contrary to Community law

(3) There must be a causal link between the State's failure and the loss to the claimant

Article 234 Reference

The Judicial Committee of the House of Lords on Tuesday referred a case to the European Court of Justice in Luxembourg. This procedure allows a question of European Union Law arising in a national court, to be referrred to the ECJ for a ruling on that particular issue. The ECJ gives its interpretation of ECJ, but the national court has to apply it to the case in hand.

This 'preliminary ruling' procedure has played an important role in the development of EU Law - including such key cases as Van Gend en Loos and Costa v. ENEL. A very useful article on EU Law by Petra Lea Láncos can be found at http://www.jak.ppke.hu/hir/ias/200612sz/o1.doc

Some statistical information on Preliminary Rulings can be found at -

It was ordered that the following questions be referred to the Court of Justice of the European Communities for a preliminary ruling under Article 234 of the Treaty establishing the European Community:

1) Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38/EC of the European Parliament and of the Council (“the Directive”)?

2) Has such a person “resided legally” within the host Member State for the purpose of Article 16 of the Directive in circumstances where she was unable to satisfy the requirements of Article 7 of Directive 2004/38EC?

and that further consideration of the appeal be adjourned sine die.

http://www.eu-newgov.org/database/DELIV/DLTFIID1&2_Statistical_Examples_Arts_226&234.pdf

The Minutes of Proceedings - Judicial Business records -

McCarthy (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (formerly SM (Eire) (FC) (Appellant) v Secretary of State for the Home Department (Respondent))