Parliamentary sovereignty

2022 PLC(CS) 794 SUPREME-COURT Judicial Precedent

ScopeParliamentary sovereignty or legislative supremacy was the cornerstone of a strong democracyCourts must, therefore, recognize the central role of the legislatureUndermining the legislature undermined democracy

Both the legislature and the judicature must play their role in a spirit of profound respect for the other and within the limits set out in the Constitution.

2022 PLD 64 SUPREME-COURT Judicial Precedent

ScopeParliamentary sovereignty or legislative supremacy was the cornerstone of a strong democracyCourts must, therefore, recognize the central role of the legislatureUndermining the legislature undermined democracy

Both the legislature and the judicature must play their role in a spirit of profound respect for the other and within the limits set out in the Constitution.

2019 SCMR 1887 SUPREME-COURT-OF-UK Judicial Precedent

ExecutivePrerogative powers, limits ofParliamentary accountabilityConstitutional principlesDecision outside legal limits of prerogative powersJusticiability ofTest

Although the courts could not decide political questions, the fact that a legal dispute concerned the conduct of politicians, or arose from a matter of political controversy, was not a sufficient reason for the courts to refuse to consider it

Prime Minister's accountability to Parliament did not in itself justify the conclusion that the courts had no legitimate role to play

Courts had a duty to give effect to the law, irrespective of a minister's political accountability to Parliament

Fact that a minister was politically accountable to Parliament did not mean that he was therefore immune from legal accountability to the courts

If the issue before the court was justiciable, deciding it would not offend against the separation of powers

Courts could rule on the extent of prerogative powers of the Executive

Since a prerogative power was not constituted by any document, determining its limits was not straightforward

Nevertheless, every prerogative power had its limits, and it was the function of the court to determine, when necessary, where they laid

Since the power was recognised by the common law, and had to be compatible with common law principles, those principles may illuminate where its boundaries laid

In particular, the boundaries of a prerogative power relating to the operation of Parliament were likely to be illuminated, and indeed determined, by the fundamental principles of (UK's) Constitutional law

Prerogative power was therefore limited by statute and the common law, including, the constitutional principles with which it would otherwise conflict

Courts had the responsibility of upholding the values and principles of the Constitution and making them effective

Particularly it was their responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power had transgressed those limits

Courts could not avoid such responsibility merely on the ground that the question raised had a political context

Limits of prerogative powers were to be determined by reference to two principles of constitutional law; first, that laws enacted by the Parliament were the supreme form of law in the legal system, with which everyone, including the Government, must comply

Time and again, the courts (in the UK) had protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers (from the Executive), and in doing so had demonstrated that prerogative powers were limited by the principle of Parliamentary sovereignty

Sovereignty of Parliament would be undermined if the Executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased

Second constitutional principle was that of Parliamentary accountability, whereby, through Parliamentary questions and committees, and scrutiny of delegated legislation, the policies of the Executive were subjected to consideration by the representatives of the electorate, and the executive was required to report, explain and defend its actions.

2019 SCMR 1887 SUPREME-COURT-OF-UK Judicial Precedent

ExecutivePrerogative powers of the ExecutiveProrogation of ParliamentLegalityPrime Minister decided to advise Crown to prorogue Parliament for a five-week period

Prorogation took effect during a period leading up to the deadline date for the United Kingdom's withdrawal from European Union, at a time when terms of withdrawal agreement remained undecided

Lawfulness of advice of prorogation was challenged on the ground that such prorogation had the effect of limiting scrutiny of Executive at a time when the country's Constitution was being changed

Plea on behalf of Government that challenge to the prorogation was not justiciable, as it was a political matter for which the Executive/Prime Minister was only answerable to the Parliament

Question as to whether prorogation unreasonably prevented Parliament to perform its Constitutional functions

Held, that principles of Parliamentary sovereignty and Parliamentary accountability were not placed in jeopardy when Parliament stood prorogued for the short period which was customary, but a decision to prorogue Parliament would be unlawful if the prorogation had the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive

In such a situation, the court would intervene if the effect were sufficiently serious to justify such an exceptional course

As a concomitant of Parliamentary sovereignty, the power to prorogue Parliament could not be unlimited

Extent to which prorogation frustrated or prevented Parliament's ability to perform its legislative functions and its supervision of the executive was a question of fact which presented no greater difficulty than many other questions of fact which were routinely decided by the courts

Court then had to decide whether the Prime Minister's explanation for advising that Parliament should be prorogued was a reasonable justification for a prorogation having those effects

Prime Minister's wish to end one session of Parliament and to begin another would normally be enough in itself to justify the short period of prorogation which had been normal in modern practice, and it could only be in unusual circumstances that any further justification might be necessary

Even in such a case, when considering the justification put forward, the court would have to bear in mind that the decision whether to (advise the monarch to) prorogue Parliament fell within the area of responsibility of the Prime Minister, and that it may in some circumstances involve a range of considerations, including matters of political judgment

Court would therefore have to consider any justification that might be advanced with sensitivity to the responsibilities and experience of the Prime Minister, and with a corresponding degree of caution

Nevertheless, it was the court's responsibility to determine whether the Prime Minster had remained within the legal limits of the power

If not, the final question would be whether the consequences were sufficiently serious to call for the court's intervention

Prorogation of Parliament in the present case did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification; it was not a normal prorogation (in the run-up to a monarch's speech, which, according to unchallenged evidence before the court, typically required four to six days)

Parliament was prevented from carrying out its constitutional role for five out of a possible eight weeks at a time when a fundamental change was due to take place in the Constitution (of the United Kingdom)

Absent any evidence from the Government as to why so long was needed to prepare for it, it was impossible to conclude, that there was any reason, let alone a good reason, to prorogue Parliament for five weeks

Fundamental change was due to take place in the Constitution (of the United Kingdom)due to its exit from the European Union

Question as to whether or not it was a good thing was not for any court to judge, the people had decided that

However, the Parliament, and in particular the lower House as the democratically elected representatives of the people, had a right to have a voice in how that change came

Accordingly, since the advice which had led to the prorogation had been outside the powers of the Prime Minister to give, it was null and of no effect, as was the Order in Council founded on that unlawful advice, which had to be quashed, and so, in turn, the actual prorogation in Parliament had been unlawful, null and of no effect

Supreme Court declared that Parliament had not been prorogued

Appeals were disposed of accordingly.

2015 PLD 401 SUPREME-COURT Judicial Precedent

Meaning

Principle of Parliamentary sovereignty as historically understood and applied in Britain and erosion of its Constitutional relevance in recent times stated.