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32 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Background to Parliamentry Sovereignty
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- Considered one of the most fundamental characteristics of the UK constitution.
- A common law doctrine developed by judges and has its origins in the 17th century struggle between the crown and parliament which culminated in article 9 of the Bill of Rights (1689) and the Enrolled Bill Rule. - Comprehensive and absolute legal immunity preventing the court from inquiring into or questioning any act of Parliament. |
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Three part definition by Dicey
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1. Parliament is the supreme law making body.
2. No Parliament may bind a successor or be bound by a predecessor. 3. No body may question the validity of a bill passed by parliament. |
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Cheney v Conn
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Facts: A taxpayer challenged the validity of The Finance Act 1964, as it allowed for the purchase of nuclear weapons contrary to International Law.
Held: Parliament had the power to override international law even if it was not intended. Where an act conflicts with a convention the act prevails. |
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Madzimbamuto
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Facts: South Rhodesia declared independence but parliament passed an act stating they were part of the UK despite a convention that it would not legislate for SR.
Held: Statute may override constitutional conventions. |
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Burmah Oil v Lord Advocate
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- Parliament passed The War Damages Act 1965 in order to retrospectively remove the right to war compensation previously awarded by the courts.
- Statutes imposed by Parliament can operate retrospectively, although this was under somewhat special circumstances. |
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De Keyser's Royal Hotel
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Statute overrides aspects of royal prerogative.
Facts: Claimed compensation under statute for use of hotel by armed forces. Held: Royal prerogative placed in abeyance when there is statutory authority to follow instead. (The Defence Act). |
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ex Parte Firebrigades Union
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Statute overrides prerogative powers
Held: Courts enforced the CJA 1988 and prevented the use of a prerogative to pay less compensation. |
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Ellen Street Estates/Vauxhall Estates
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The Doctrine of Implied Repeal
Held: New statute overwrites an existing inconsistent law or earlier legislation can be expressly repealed. This points towards the sovereignty of parliament. |
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Thoburn v Sunderland Council
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Laws LJ held: that 'constitutional statutes' which condition the relationship between citizen/state or change fundamental constitutional rights may not be able to be repealed...
EG: ECA '72, HRA 1998. |
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Pickin v BRB
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Rule of Law
- Enrolled Bill Rule demonstrated. A UK court will not consider the validity of a statute or enquire as to how it was passed. |
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Challenges to PS - Procedural or 'Manner and Form' Debate
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Traditional view that parliament cannot be bound by a previous parliament is increasingly less certain. Argument that if it passed the 1911 + 1949 acts to make it easier for it to pass law, why can it not also be made harder?
No absolute limit on the content of future legislation, but could place limits on the manner and form in which law is enacted. |
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Attorney General SW v Trethowan
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Privy Council case supports this view but weak authority.
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Manuel v AG
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Held: Weak obiter that the court might be willing to enforce manner and form requirements imposed by earlier acts.
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Devolution Argument
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Practically limited by devolution of power to Scotland (Scotland Act 1998) and Wales (Government of Wales Act 1998).
Lord Bingham rejects this argument, claiming that Parliament has to power to take back this power. Although technically able to revoke this devolvement, practically and politically, this is highly unlikely to happen. |
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The Acts of Independence (20th century)
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- Removed the ability of Parliament to legislate for ex-colonies with practical effect.
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Blackburn v AG
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Facts: In this case, it was accepted by the court that by signing the Treaty of Rome, Parliament was effectively imposing practical limits on its power.
Denning: 'Legal theory must give way to practical policies'. |
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Jackson v AG
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- Presents the strongest challenge to parliamentary sovereignty.
Facts: It was argued that the 1949 act used to bypass the HoL was illegal. Held: Judges seemed to be suggesting (albeit obiter) that the legal supremacy of Parliament is under threat. |
Lord Steyn: If Parliament did the unthinkable, the courts would respond. EG: If Parliament tried to abolish JR, the courts would step in, acting as 'guardians'.
The judges seem to be suggesting that the old political v legal method of control is not good enough. Examples such as the terrorism acts show the ineffectiveness of the controls. Better to subject the powers of Parliament to legal controls via RoL? Judiciary are developing a less absolute version of Dicey's RoL. |
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The European Communities Act 1972
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- The most devastating infringement on the doctine of Parliamentry sov.
- EU treaties and legislation have become a source of UK law under the principle of direct effect s2(1) ECA 1972. - The ECA incorporates directly enforceable EC Law into UK Law (treaty provisions and regulations). |
- Implementation of EC Law into UK law s2(2).
- Consider UK law in the light of EC Law s2(4) |
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Costa v ENEL
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Facts: Italian court had to follow EU law.
Held: EC membership in itself carries an inherent limitation to parliamentary supremacy, as national law will be disapplied in favour of EC Law even where the act is a constitutional provision. |
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Felixstowe Docks
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Initial reaction of resistance to EC Law.
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McCarthy v Smith
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Facts: Sex discrimination case.
Held: EU Law and British Law must be read together. Interpretation approach. s2(4) ECA 1972. |
- In this case, Denning effectively recognised a weak 'manner and form' argument, indicating that Parliament could legally or expressly repeal the ECA 1972 and the courts would be obliged to follow the statute.
- However the political, legal and social obstacles in place make this practically impossible. |
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Pickstone v Freemans
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Held: Courts used the interpretation approach to construe legislation against its initial strict literal meaning.
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Litser v Dry Dock
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Held: Courts added words into the statute in order to harmonise it with EC Law. s2(4) ECA 1972.
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Factortame
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Held: The courts disapplied a statute, effectively suspending an act of Parliament instead of overruling it or questioning it's validity. (MCA 1984)
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- This case also demonstrates how the doctrine of implied repeal is weakened, as the courts cannot impliedly repeal EC Law.
- UK effectively given up its ultimate supremacy to make any law it wants. |
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Wade
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Argues that the 1972 Parliament has bound future Parliaments. However the ECA 1972 is not legally entrenched, so theoretically could be repealed at any time by Parliament, which would reassert it's complete supremacy. Practically, this wouldn't happen.
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s.3 HRA 1998
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- All legislation must be interpreted in accordance with the ECHR 'as far as is possible to do so'.
- A weak method of incorporation deliberately passed in a way to preserve Parliamentary Sovereignty. |
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Ghaiden v Godin-Mendoza
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Facts: Court extended spousal rights to same sex in housing.
Held: Courts interpreted UK legislation 'as far as possible' and widely to interpret UK legislation to be compatible with convention rights. |
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s3(2)(b) HRA 1998
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Arguably a limitation on these interpretive powers.
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s.4 HRA 1998
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- Power to make a declaration of incompatibility.
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- However, these declarations have led to the law changing through political pressure.
- They cannot suspend or overturn a statute. |
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s.19 HRA 1998
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- Ministerial requirement coupled with s.3 HRA 1998 means that Parliament could not legislate contrary to the Convention.
- Infringement possible, though politically inconceivable. |
- Infringement would be construed compatibly by the Courts.
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A & Others (Belmarsh prison case).
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- Evidence obtained through torture was found not to be admissible in court.
- Courts made a declaration of incompatibility regarding the detention without trial of a terror suspect. |
- The HRA can always be repealed and in several areas has been specifically derogated against (The Anti Terrorism, Crime & Security Act 2000).
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Conclusion
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- Evolving doctrine in the keeping of the courts.
- Dicey's view is no longer representive of the true constitutional position. - ECA and HRA have qualified PS but they can still be revoked. - Still an important constitutional feature but not as prominent as it once was. |
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