Pl: Parliamentary Sovereignty

Front 1

What is Parliamentary supremacy (as formulated by AV Dicey)?

Back 1

The principle that:

> Parliament is the supreme law making body and can enact and repeal laws on any subject

> No Parliament may be bound by a predecessor nor bind a successor (i.e. law cannot be entrenched)

> No other person/body may question the validity of an act of Parliament

Front 2

What is the new school of thought embodied by Lord Steyn?

Back 2

R v Jackson: "the classic account given by Dicey can now be seen as out of place in the UK"

Front 3

Parliament has unlimited legislative competence - what are examples of what statutes can do? (5)

Back 3

1. Alter the constitution (Act of Settlement 1701 - established independence of judiciary; ECA 1972)

2. Override constitutional conventions (Madzimbamuto - statute overrode convention of not legislating for former colony; Fixed-term Parliaments Act 2011 - removes power of Crown to dissolve parliament)

3. Alter/override the Royal Prerogative (Crown Proc Act 1947 - removed immunited of Crown from tort claims; Fixed-Term P Act; De Keyser's Royal Hotel; ex P Fire Brigades Union - Act of P prevented prerogative from being used)

4. Override Intl Law (Cheney v Conn - tax statute prevailed over Geneva Convention)

5. Operate retrospectively (War Damage Act 1965 and Burmah Oil v Lord Advocate - crown not liable for previous war damage)

Front 4

What is the doctrine of implied repeal? (+ case)

Back 4

A later statute will impliedly repeal an earlier one where their content is inconsistent (Ellen Street Estates)

Front 5

What are the limits to the implied repeal doctrine? (+ cases)

Back 5

Thoburn v Sunderland CC: Constitutional statutes may not be impliedly repealed. These are statutes which condition the relationship between citizen and state or change the scope of fundamental human rights. Endorsed by H v Lord Advocate

HS2 Action Alliance Ltd: where EU law conflicts with UK's constitutional law, constitutional principles cannot be overriden without unequivocal evidence of parliamentary intention to do so.

Front 6

What is the Enrolled Act Rule? (+ case)

Back 6

Proceedings in, and acts of, parliament will not be questioned, set aside or invalidated by another body (Picken v British Railways)

Front 7

Does the Rule of Law take precedence over PS?

Back 7

Lord Steyn, Jackson: where Parliament legislated in manner contrary to rule of law, courts will refuse to uphold such legislation

Lord Hope: The Rule of Law is the ultimate controlling factor on which the constitution is based because PS is not absolute. "Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law."

Front 8

Manner and Form debates (+ case)

Back 8

Although Parlt may not limit a future Parlt's competence in terms of the areas of law upon which it may legislate, it may alter the way in which future parliaments may make, amend or repeal law - thus they bind the manner and form of the new law.

i.e. if Parlt can made it easier for future legislation (Parliament Acts 1911 and 1949) why can it not also make it harder?

Trethowan, Manuel v AG obiter comments.

Front 9

What are the domestic limitations on PS?

Back 9

1. Qualified by the devolution of power to Scotland and Wales

> Scotland Act 2016 increased range of devolved powers and included provisions that: Scot Gov and Parlt are permanent parts of UK's const arrangements and neither made by abolished w/o referendum; UK govt will not normally legislate wrt devolved matters w/o consent of Scot Parlt

>Government of Wales Act 1998: devolved a number of powers to Welsh Assembly

Acts of Independence enacted in 20th century have in practical senses removed the power of Parlt to legislate for ex colonies with any practical effect

Henry VIII powers: permit relevant govt minister to amend or repeal the relevant statute

Lord Denning in Blackburn: "legal theory must give way to practical policies"

Front 10

What are the European limitations on PS?

Back 10

ECA 1972: arguably most devastating infringement on doctrine of PS - EU treaties such as TFEU and other EU legislation have become source of law in UK under principle of Direct Effect (s.2(1))

Front 11

What is the effect of first limb of s.2(4) ECA 1972 on PS? (+ cases)

Back 11

Acts of Parlt "shall be construed...": in order to comply with EU law, Courts have been willing to:

> Read against the literal meaning of a UK statute (Pickstone v Freemans) and

> Add words into readings of the statute (Litster v Forth Dry Dock)

Front 12

What is the effect of second limb of s.2(4) ECA 1972 on PS? (+ cases)

Back 12

Acts of Parlt "shall have effect..."

Where EU Law and UK statute contravene each other, directly effective EU Law will take precedence over conflicting national law, which will be disapplied (Factortame II) even if it is a constitutional provision (Costa v ENEL)

Front 13

What effect does the European Union Act 2011 have on PS?

Back 13

Attempt to place PS on a statutory footing.

Provides that directly applicable or directly effective EU law is recognised and available in law in the UK only by virtue of an Act of Parlt.

Provides that a referendum be held on any amendments of the Treaty of EU or the Treaty on the Functioning of the EU.

Front 14

Does European legislation affect the doctrine of implied repeal? (+ cases)

Back 14

Weakens: by ECA as it will not apply where post 1972 legislation contravenes with ECA (Factortame)

However: Parliament may legally and expressly repeal ECA which is merely a self-imposed limit (Garland; McCarthy v Smith)

Following British referendum decision to leave EU, the repeal of the ECA will soon become reality

Front 15

How has the HRA affected PS? (+ cases)

Back 15

s.3 HRA 1998: all legislation must be interpreted in accordance with ECH as far as is possible. However, this is a weak method of incorporation.

> Courts fully willing to implement, even reading national legislation beyond its literal meaning (Ghaidan) [new rights-compatible interpretation of legislation]

> Dec of incompatibility (s.4 HRA) places strong obligation on govt to amend/repeal relevant legislation (even if it does not actually invalidate it) - e.g. via s.10 fast track procedure (Belmarsh)

> TFEU contains Charter of Fundamental Rights, stating that all EU laws (incl UK) must comply with the ECHR. UK has insisted a provision be annexed stating that Charter cannot invalidate domestic legislation

Front 16

Is there a difference between the idea of PS and its practical existence?

Back 16

Idea can be considered absolute, but in practice it is somewhat conditional and qualified.

> conditional on its continued recognition by the courts (Lord Steyn and Hope sought to qualify PS more generally in Jackson - judges created the principle of PS so it is not unthinkable that circumstances could arise where the courts would have to qualify it, such as if Parlt attempted to abolish JR or the ordinary role of the courts)

> qualified by UK's political and legal reality: power is devolved to nations and regions, is shared with Europe, subject to the rule of law and a commitment to HR and civil liberties