Parliamentary Supremacy

Front 1

Parliamentary Supremacy

Back 1

Dicey:

' the power of law making unrestricted by any legal limit '

'Parliament has the right to make or unmake any law whatsover'

Front 2

Why is Parliament Supreme?

Back 2

Parliament has unlimited legislative authority because the courts have recognized this to be the case.

Hans Kelsen:

It is a fundamental rule upon which all other rules are based.

Front 3

Sir Ivor Jennings

Back 3

Parliament can legislate for all persons and places.

Front 4

Dr Bonham's Case (1610)

Against Parliamentary Supremacy

(Similar in Day v Savadge (1614))

Back 4

Coke CJ:

The common law had the power to control Acts of Parliament and to sometimes declare them to be void. This can happen when an Act is 'against common right and reason, or repugnant, or impossible to be performed'.

Front 5

But.... the following cases ^ .....

Back 5

have been decided before the Glorious Revolution of 1688, from which date the legislative supremacy of Parliament has been recognized by the courts.

Front 6

Rule of Law and Parliamentary Supremacy

Back 6

Lord Woolf: while delivering a lecture in 1996

an Act which contravened the requirements of the rule of law could be disobeyed by the courts.

Front 7

But Lord Woolf changed his mind in....

( supported by Lord Hope )

Back 7

Jackson v Attorney General (2005)

the supremacy of Parliament is still the general principle of our constitution. The judges created this principle.

Front 8

Outcomes of the Glorious Revolution:

The Bill of Rights 1689

Back 8

It was as much about the wrongs of James II as it was about the rights of the people. However, its constitutional significance lies in the fact that it asserted the supremacy of Parliament over the monarch.

Front 9

Judicial Obedience towards Parliamentary Supremacy

'there is no judicial body in the country by which the validity of an Act of Parliament could be questioned' - Cockburn CJ

Back 9

1) Ex p Canon Selwyn (1872)

2) Madzimbamuto v Lardner-Burke (1969)

Front 10

but.. courts may still ask questions

Manuel v A-G : Sir Robert Megarry VC

supported by Lord Campbell

Back 10

but cannot question the validity of an Act of Parliament.

All that a court of justice can look into is the Parliamentary roll: to see if the act has passed both houses and received Royal Assent.

Front 11

Parliament will not legislate 'bad laws' because...

Back 11

Political considerations such as:

1) Damaging effect on government

2) Make them unpopular during election

Front 12

Implied Repeal:

s 2(4) European Communities Act 1972

Back 12

provision of a later Act will supersede if it is inconsistent with an earlier Act.

Front 13

Express Repeal:

Back 13

The amendment or repeal will be stated in the later Act, and will then takeover legal effect.

Front 14

Entrenchment:

making amendment or repeal of an Act harder by...

Back 14

a special procedure such as:

1) a specified majority of the legislature may be required

2) electorate may have to approve of the reform via a referendum

Front 15

Manner and Form:

Professor Jennings

Heuston

Marshall

Back 15

If procedures of entrenchment are not followed:

1) injunction could be sought to prevent further passage of the bill

2) monarch can refuse to give Royal Assent

3) if Royal Assent was given, the Act may be declared void by the courts.

Front 16

Cases supporting Manner and Form:

Back 16

1) A-G for New South Wales v Trethowan

2) Minister of the Interior v Harris

3) Bribery Comr v Ranasinghe <- there is no written documentary constitution in which procedures for legislation are stated. Nearest we can get to is Parliament Acts 1911 and 1949.

Front 17

Parliament Acts 1911 and 1949:

reduce powers of the House of Lords

Back 17

1) removed the Lords' power to reject a bill in respect of extending Parliaments' life beyond 5 years.

2) HL has no power to amend or delay the passage of money bills for any longer than one month.

3) Bills can receive Royal Assent even if rejected by Lords.

Front 18

In a case where HL rejects a bill..

Back 18

It is still primary legislation which has simply been enacted using a different procedure to that which is normally used to enact such laws. Parliament Acts 1911 and 1949 made it easier for HC to legislate if HL opposes.

Front 19

The Union legislation:

Back 19

*

Front 20

Legislative Supremacy and the EU:

Section 18 of the European Act 2011:

Back 20

Directly applicable or directly effective EU law falls to be recognized and available in law in the UK.

The EU constitutes a superior legal order, seek to give effect to laws and principles in the UK independent of statutory incorporation.

Front 21

but Laws LJ stated that constitutional Acts such as:

Magna Carta

the Bill of Rights

Acts of Union

European Communities Acts

Human Rights Act

Back 21

Should be recognized in the Hierarchy of Acts by the courts.

1) They condition the legal relationship between citizen and the state

2) Preserve sovereignty of legislature and the uncodified constitution

Front 22

Legislative Supremacy and Devolution:

Back 22

Despite the fact that all the developed legislatures now have law making powers, the UK Parliament retains the power to legislate for each country.

Moreover, devolved legislation may be seen invalid if it contradicts with the Convention Rights or EU law.

Front 23

HRA and legislative supremacy

it is not entrenched but...

Back 23

Professor Feldman:

amendments to it will make it more politically controversial than amendments to ordinary legislation.

Front 24

Judicial Interpretation#

section 3 of the HRA 1998

Back 24

primary and subordinate legislation must be read in a way which is compatible with the Convention rights.

if it is not possible to do so a judge should make a declaration of incompatibility.

Front 25

Declaration of incompatibility

Professor Gearty 'politically potent but legally irrelevant'

Back 25

Lord Steyn:

It must be avoided unless it is impossible to do so.

Example:

Bellinger v Bellinger

Front 26

Ministerial Statement:

Back 26

Minister in charge of a Bill must make a statement prior to its second reading that, in his opinion, its provisions are either compatible or not with the Conventions rights.

Government may still proceed in either case.