Parliamentary Sovereignty

Front 1

What does Dicey say about the doctrine of Parliamentary Sovereignty?

Back 1

"The sovereignty of parliament is (from a legal point of view) the dominant characteristic of our political institutions."

Front 2

What is the positive aspect of parliamentary sovereignty?

Back 2

Parliament has the right to make/unmake any law whatever.

Front 3

What is the negative aspect of parliamentary sovereignty?

Back 3

No person or body outside of Parliament is recognised by the law as having a right to override or set aside any legislation at all.

Front 4

What limit to the doctrine was set out in Madzimbamuto v Larnder-Burke?

Back 4

"It is often said that it would be unconstitutional for parliament to do certain things...for moral, political or other reasons."

HOWEVER, "If parliament chose to do any of them, the courts could not hold the Act of Parliament invalid."

Front 5

What are the 3 different meanings to the positive aspect?

Back 5

1) There is no law that parliament cannot change.
2) Therefore, there is no distinction between 'constitutional' and other laws (as they are both equally open to change.)
3) An enactment of Parliament cannot be pronounced void on the grounds that it conflicts with any principles of the constitution.

Front 6

Why does Calvert contest that the power of parliament may not be unlimited?

Back 6

"One no more demonstrates [that the powers of the UK parliament are unlimited] by pointing to a wide range of legislative objects than one demonstrates the contrary by pointing to matters on which Parliament has not, in fact, ever legislated."

Front 7

What is the doctrine of express repeal?

Back 7

When Parliament legislates contrary to preceding legislation, by explicitly stating that an earlier law is to be invalidated.

Front 8

What is the doctrine of implied repeal?

Back 8

Where 2 statutory provisions are inconsistent with each other, the provision passed later will prevail.

Front 9

Which case explains the doctrines of express and implied repeal?

Back 9

Ellen Street Estates v Minister of Health
'Parliament can alter any act previously passed...it can do so by repealing in terms the previous act....and it can do so in another way- by enacting a provision which is clearly inconsistent with the previous act.'

Front 10

What are the 3 possible limitations on parliamentary sovereignty?

Back 10

1) Limitations based on the substance/content of the act.
2)Limitations as to the form of the measure passed, or the procedure used.
3) Limitations imposed on its sovereignty by parliament itself.

Front 11

What are the 2 possible limitations on the content/substance of the legislation?

Back 11

1) That the statute conflicted with laws derived from other legal systems.
2) That is contravened fundamental liberties or other constitutional principles.

Front 12

What does it mean to say that the UK has a dualist legal system?

Back 12

International and domestic law are 2 entirely separate sources .
International law does not become domestic law automatically through signing of treaties.
NOT APPLICABLE TO EU LAW.

Front 13

Which case illustrates the principle concerning the conflict between international and domestic law?

Back 13

Mortensen v Peters
-Involved a conflict between national and international law regarding the illegal fishing of some Norwegian fishermen.
-The court held that they had to follow domestic law, as international law was not binding.
"An act of parliament is supreme and we are bound to give effect to its terms."
-The courts apply the same principle even if contravention of the international provision in question would result in the UK breaching its treaty obligations.

Front 14

What limitations are there based on the protection of constitutional principles?

Back 14

1) The courts have never in modern times, refused to obey a statute on the grounds of common law precedent.
2) However, courts will impose on parliament certain strong presumptions that it cannot have intended to violate certain principles e.g. non-retroactivity of law- Phillips v Eyre- the courts will not give retrospective force to new laws affecting rights, unless by express words or implication it appears that it was the intention of the legislature.

Front 15

Which cases concern the protection of fundamental common law rights?

Back 15

R v Lord Chancellor ex p Witham.

R v Secretary of State for the Home Dept. ex p Simms.

Front 16

What was held by the court in ex p Witham?

Back 16

-If a statute contains a fundamental right, it cannot be impliedly repealed. "the right in question cannot be abrogated by the state, save by specific provisions in an act of parliament."

Front 17

What was held by the court in ex p Simms?

Back 17

Parliament can, if it chooses to, legislate contrary to fundamental principles of human rights (as constraints are ultimately political no legal) HOWEVER, fundamental rights cannot be overridden by general or ambiguous words.

Lord Hoffmann- In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

Front 18

What is the significance of Thoburn v Sunderland City Council?

Back 18

-The case concerned the impact of EC law on Parliamentary Sovereignty.
-it recognised that there exists rights which should properly be classified as constitutional or fundamental.
"Ordinary statutes may be impliedly repealed, Constitutional statutes may not."
-It was held that in order to repeal a constitutional statute, the legislature must use express words.

Front 19

Are there any instances in which the courts would go against the intention of parliament?

Back 19

Lord Woolf has argued that "If parliament did the unthinkable then I would say that the courts would also be required to act in a manner which would be unprecedented."- regarding the fact that parliament should not be able to destroy the basis of a democratic society.

-In Jackson, Baroness Hale stated "The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all scrutiny.

Front 20

What does the HRA state with regards to statutes that are inconsistent with convention rights?

Back 20

-The statute will still have full effect. A section 4 declaration of incompatibility could be made by the courts, which would trigger a parliamentary 'fast-track' procedure for amending the offending legislation, but it leaves parliament entirely free to decide whether to remedy the situation or not. (though in practice they usually would)

Front 21

In what way is the Human Rights Act 1998 weaker than ordinary statutes?

Back 21

It does not impliedly repeal previous incompatible legislation (a section 4 declaration of incompatibility has no practical effect unless parliament chooses to act)

Front 22

In what way does the HRA 1998 have superior status to other statutes?

Back 22

It determines the approach to be taken in interpreting all other statutes, past and future. i.e. it provides that all legislation must be read compatibly with convention rights.

Front 23

What is stated under section 3(1) HRA?

Back 23

So far as it is possible to do so, primary and subordinate legislation must be read in a way which is compatible with convention rights.

Front 24

What is the significance of Ghaidan v Godin Mendoza?

Back 24

-It was held that the court's interpretation under section 3(1) must be compatible with the underlying thrust of the legislation being construed.
-It can require a court to read in words which change the meaning of the enacted legislation, so as to make it convention compliant.

Front 25

What is the significance of R v A?

Back 25

- A declaration of incompatibility is a last resort. It must be avoided unless it is plainly impossible to do so.
-It will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language, but also the implication of provisions.

Front 26

Which cases have taken a more restrained view of section 3 interpretations?

Back 26

Re S and Re W (care orders)
-it was made clear that the courts cannot read whole provisions into statutes, where the problem is the absence of a legislative provision rather than a positive violation.

Lord Nicholls- 'a reading of legislation under section 3(1) should not depart substantially from a fundamental feature of an Act of parliament.'

Front 27

What is a limitation based on form/procedure?

Back 27

An act of parliament is an expression of the sovereign will of parliament within the meaning of the law- the courts must decide what amounts to an act of parliament, and it must conform to this in order to be valid.

Front 28

What is an act of parliament?

Back 28

-It must be passed by both houses and given royal assent.
-It must bear the customary words of enactment- "be it enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows:'

Front 29

What is the enrolled bill rule?

Back 29

-If an act has been passed by both houses and received royal assent, a court cannot enquire itno the manner in which it was introduced into parliament, nor into what passed in parliament during its progress through the various parliamentary stages.

Front 30

Which case displays the application of the enrolled bill rule?

Back 30

Pickin v British Railway's Board
-the function of the court is to construe and apply the enactments of parliament. The court has no concern with the manner in which parliament or its officers carrying out its standing orders, perform these functions.

Front 31

What was the effect of the parliament acts 1911/1949?

Back 31

The 1911 Act removed the power of the HL to veto primary legislation, and replaced it with a power to delay legislation.

Section 2(1) of the 1911 act reads: 'If any public bill (other than a money bill or a bill containing any provision to extend the maximum duration of parliament beyond 5 years) is passed by the Commons in 3 successive sessions...that bill shall, on its rejection for the 3rd time by the Hl...be presented to his majesty and become and act of parliament.'

-The 1949 Act reduced the HL power of delay from 2 to 1 year (the HL did not give consent to this- it was passed under the 1911 act itself)

Front 32

What are some recent used of the Parliament Acts procedure?

Back 32

War Crimes Act 1991
Hunting Act 2004

Front 33

What was the challenge to the Hunting Act 2004?

Back 33

-The countryside alliance argued that:
1) By removing the necessity to gain the consent of the HL, this created a new method of creating delegated legislation.
2) Therefore, the 1949 act itself was delegated legislation (which can be struck down by the court)
3) As such, each act passed under the parliament act procedure is delegated legislation, and is therefore open to challenge by the courts.

THE HL HELD UNANIMOUSLY THAT THE HUNTING ACT WAS A VALID ACT OF PARLIAMENT.

Front 34

What did the Court of Appeal in Jackson say might be limits to the court's use of the Parliament acts procedure?

Back 34

-In Jackson, the CA held that there were limits- any attempt to extend the life of parliament beyond 5 years would be invalid.
-They also suggested that the Parliament Acts could not be used to effect SIGNIFICANT CONSTITUTIONAL CHANGE.' e.g. abolishing the House of Lords.

Front 35

What was the stance taken by the House of Lords on limits to the parliament acts procedure?

Back 35

The HL rejected the comments made by the CA.
Lord Hope noted that 'there are no legal limits to what can be done under section 2(1) of the parliament act 1911.'

Baroness Hale of Richmond- 'the 1911 Act procedure can be used to effect any constitutional change, with the one exception stated.'

Front 36

What did the HL state may be the one exception to the parliament acts procedure, other than what was expressly ruled out in the act?

Back 36

-They said that the prohibition of the extension of the life of parliament, carried with it a like exclusion in respect of legislation aimed at achieving the same result by 2 steps rather than one.'

1) Bill 1- passed to remove the exception from the act, using the PA procedure to side-step the house of lords.
2) Bill 2, passing a bill to extend the life of parliament without the consent of the House of Lords.

Front 37

In theory, what 3 ways could parliament could protect a statute from future repeal?

Back 37

1) The statute could state that it could not be repealed except by legislation drafted in a particular form (i.e. by express words)

2) The statute could state that it could only be repealed by legislation using a special procedure (manner) i.e. a 2/3 majority.

3) The parliament could state that the statute could not be repealed at all (a restriction by reference to the substance/content of future enactments)

Front 38

What is a practical example of a restriction by form?

Back 38

The Bill of Rights in the Canadian Constitution can only be repealed by express words.

Front 39

What is a practical example of a restriction by manner?

Back 39

In the USa, a 2/3 majority is required in each house of congress, as ell as the consent of 3/4 of the states, in order to change part of the constitution.

Front 40

What is a practical example of content/substance-based restriction?

Back 40

In the German constitution, amendments to the federal and democratic nature of the constitution and the basic principles laid down in articles 1-20 are inadmissible- THEY CAN NEVER BE REPEALED.

Front 41

What is the orthodox view relating the UK parliament's ability to bind itself in any of the 3 ways?

Back 41

None of them may be used, due to the sovereignty of parliament and the doctrines of express and implied repeal- PARLIAMENT CANNOT RESTRICT A FUTURE PARLIAMENT.

Front 42

In which case was it stated that 'no act of parliament can effectively provide that no future parliament can interfere with its provisions?'

Back 42

Vauxhall Estates Ltd v Liverpool

Front 43

Which case stated that 'the legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation?'- as the later act impliedly overrules the earlier act.

Back 43

Ellen Streets

Front 44

What is stated under section 2(4) of the European Communities Act 1972?

Back 44

"any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions of this section."

-Meaning that future acts of parliament will only be given effect if they are in accordance with EU law.
-Gave domestic effect to community law.

Front 45

What was the view of the ECJ in Costa v ENEL?

Back 45

"the ember states gave limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves."
"The transfer by the states from their domestic legal system to the community legal system of their rights and obligations arising under the treaty carries with it a permanent limitation of their sovereign rights.'

Front 46

What was the initial approach taken by the UK courts?

Back 46

The interpretive/purposive approach:
-the national courts must strive to make domestic law conform with community law, however wide a departure from the prima facie meaning may be needed to achieve consistency.'

Front 47

What was the significance of Pickstone v Freemans?

Back 47

The HL said that Parliament must have intended to fulfil its EC obligations.
-Plain words in a statute will be ignored if they involve departure from the provisions of european community law. Albeit under the guise of interpretation rather than naked refusal to apply the words of an inconsistent UK statute.

Front 48

What was the later approach of the UK courts?

Back 48

Implied repeal was suspended to allow the supremacy of EU law.

Front 49

Which case set out the principle that 'if legislation is inconsistent with community law, then it is our bounden duty to give priority to community law'?

Back 49

Macarthy's v Smith

Front 50

What happened in Factortame?

Back 50

-It was the first time the UK courts had to directly confront an irreconcilable conflict between EC law and domestic law.
-The Merchant Shipping Act 1988 stated that in order to register as british shipping vessels, they had to be british-owned. This was plainly incompatible with clear and fundamental principles of EC law.
-The 2 could not be interpreted compatibly.
- As a result, 95 vessels controlled by spanish companies were banned from fishing in british waters.

Front 51

What was the significance of the judgement in factortame?

Back 51

Lord Bingham said 'where the law of the community is clear...the duty of the national court is to give effect to it in all circumstances...to that extent a UK statute is not as inviolable as it once was.'

THE EU LEGISLATION TAKE PRIORITY OVER THE DOMESTIC LEGISLATION.

Front 52

What was the significance of factortame (No2)?

Back 52

-'Whatever limitation of its sovereignty Parliament had accepted when it enacted the European Communities Act was entirely voluntary.'

-It can be argued that after this litigation, the courts clearly have the power to refuse to obey an act of parliament if it conflicts with community law, and therefore parliament is constrained on its freedom to legislate.

Front 53

What Lord Denning's opinion on whether community law could be overriden by domestic law?

Back 53

In Macarthy's he said that EXPRESS words would be needed to overrule Community law.

Front 54

What was Lord Bingham's opinion on whether community law could be overruled?

Back 54

In factortame, he came close to suggesting that even express words could not override community law.

-"the duty of the national courts is to give effect to community law in all circumstances."

Front 55

What do Fenwick and Phillipson suggest would be possible regarding the use of express words to overrule community law in practice?

Back 55

-It is highly improbably that express words would be used, so appears to be impossible for parliament to depart from the principle of the primacy of community law without withdrawing from the community.

Front 56

What does Loveland question about the impact of the European Communities Act 1972?

Back 56

- He questioned how the UK parliament had managed to voluntarily limit its sovereignty under the European Communities Act 1972, when that was supposed to be something that had always been beyond its predecessor's grasp.

Front 57

What does Factortame show about implied repeal and community law?

Back 57

The rule of implied repeal does not apply to community law.

Front 58

What are the conflicting views of judges on whether EU law can be overriden by express repeal?

Back 58

No it can not:

1)Lord Bingham in Factortame "it is the duty of the national courts to give effect to european law in all circumstances"

2)Lord Hope in Jackson "although parliament was careful not to say in terms that it could not enact legislation that was in conflict with community law, that is the effect in practice when section 2(1) of the act is read with section 2(4)."
"The doctrine of the supremacy of community law restricts the absolute authority of parliament to legislate as it wants in this area."

Yes it can:

1)Lord Denning in Macarthy's: "If parliament deliberately passes an act with the intent of repudiating the treaty or any provisions in it-or intentionally acting inconsistently with it- then I should have thought that it would be the duty of our courts to follow that staute."

Front 59

What does David Feldman suggest would be the result in practice?

Back 59

Even if we did try to apply legislation contrary to EU law, it would go to the ECJ and eventually be stated that it must be read compatibly, due to the doctrine of the supremacy of EU law.

Front 60

What was the significance of Thoburn v Sunderland City Council?

Back 60

-It was held that statutes of constitutional significance could not be impliedly repealed- parliament must use express words.

-There exists a hierarchy of acts. Those which affect the 'legal relationship between the citizen and state' are constitutional statutes, and can only be overidden by express words.

-In the present case it was held that the 1985 weights and measures act had not impliedly repealed the European Communities Act 1972, as it was a constitutional statute.

Front 61

What happened in Jackson?

Back 61

-Jackson appealed against the decision that the Hunting Act 2004 had been validly enacted pursuant to the provisions of the Parliament Acts 1911/1949.
-The court was asked to decide whether the Hunting Act was a 'valid act of parliament.'
-The Countryside Alliance argued that the PA 1911 created a new form of delegated legislation (the 1949 act) which meant that any act created under it was also delegated legislation, and should not be used to modify existing primary legislation (1991 act from 2-1 years)
-The appeal was dismissed.

Front 62

What was the view taken by the CA on the parliament acts procedure?

Back 62

-The 1911 Act could not be used to effect fundamental constitutional change.

Front 63

What view did the HL take on the limits to the parliament acts procedure?

Back 63

Baroness Hale- The 1911 Act procedure can be used to effect any constitutional change with the one exception stated (extending the life of parliament) There is no hint of any other exclusions.

Lord Carswell- There may be some limits to the powers under the 1911 act, but the boundaries appear extremely difficult to define.

Lord Steyn: "Mention of these three limitations by necessary implication excludes any other limitation."

Lord Hope: "There are no legal limits to what can be done under section 2(1) of the parliament act 1911"

Front 64

Why did Lord Bingham not like the idea of the courts questioning the validity of an act of parliament in Jackson?

Back 64

Because of the 'enrolled bill' rule- states that is it looks like an act of parliament, the courts should not question it, or the way in which it was passed.

Front 65

What is the view of the House of Lords, on the possibility of a 2-step procedure to extend the life of parliament?

Back 65

- Baroness Hale suggests that the limitation in the statute, that the parliament act procedure could not be used to extend the duration of parliament, carries with it a necessary implication, that the same could not be done through a 2-step procedure

"By excepting a Bill to prolong the maximum life of a Parliament from that procedure, Parliament was also disabled from using that procedure to remove the exception."