Parliamentary Supremacy

Front 1

Dicey's First Principle of Parliamentary Supremacy

Back 1

Parliament is the supreme law making body.

- ex p Simms

- Montensen v Peters

- Burmah Oil Co v Lord Advocate

- Madzimbamuto v LardnerBurke

Front 2

Madzimbamuto v Lardner-Burke

Back 2

Parliament can do things even if they are morally or politically unconstitutional. No courts can hold the Act of Parliament invalid.

Front 3

Ex p Simms

Back 3

Parliament can limit fundamental rights.

COMPARE: R v Jordan

Front 4

Montensen v Peters

Back 4

No geographical limits.

Front 5

Burma Oil Co v Lord Advocate

Back 5

Retrospective legislation allowed.

Parliament can nullify judicial decision.

Front 6

Dicey's Second Principle of Parliamentary Supremacy

Back 6

No Parliament may be bound by a previous Parliament or may bind a successor

- AG for NSW v Thretowan

Front 7

AG of NSW v Thretowan

Back 7

Australian parliament could bind itself as to the manner of future parliament because it is subordinate parliament. But Westminster Parliament cannot because it is a sovereign parliament.

Front 8

Dicey's Third Principle of Parliamentary Supremacy

Back 8

No one can challenge the validity of an act of Parliament

- ex p Cannon Selwyn

- Chenney v Conn

- R v Jordan

Front 9

EDR v Wauchope

Back 9

No judicial review of the manner in which legislation has been passed.

Front 10

Pickin v BRB

Back 10

Once a bill is on the statute book, it cannot be challenged by anyone. "Enrolled Bill Rule"

Front 11

Jackson v AG

Back 11

There is nothing that prohibits the Parliament from altering its own constitution.

Front 12

ex p Cannon Selwyn

Back 12

Statute can alter constitution.

Front 13

Cheney v Conn

Back 13

Statutes overrides international law

COMPARE: with Costa v ENEL

Front 14

R v Jordan

Back 14

Statute can limit fundamental rights but it must be clear of its intention to do so.

Compare: ex p Simms

NOTE: this pre-dates HRA 1998

Front 15

Professor Craig shared Professor Allan's belief

Back 15

Parliamentary sovereignty was a construct of the common law and that "it was not beyond peradventure" that the courts would disapply a statutory provision which violates fundamental rights.

Hint 15

Parliamentary sovereignty

Front 16

Lord Bingham in Jackson v AG

Back 16

"The bedrock of the British constitution is and was, the supremacy of the Crown in Parliament".

Front 17

Stockdale v Hansard

Back 17

To valid, a statute must be passed by both houses of Parliament and receive royal assentThis was changed with the Parliament Act 1911

Front 18

Parliament Act 1911 and 1949

Back 18

The Parliament Act 1911 removed the House of Lords' power of absolute veto over legislation. The Lords at most could delay a Bill for two years. The Parliament Act of 1949 reduced the delay period to one year.

Front 19

Professor Bradley

Back 19

"Dicey's Law made the phrase 'the sovereignty of Parliament', but a more exact term is 'legislative supremacy', so it enables the supremacy of EU law to be balanced against the supremacy of national law."

Hint 19

Definition of Parliamentary Sovereignty

Front 20

ECA 1972

Back 20

The European Communities Act was the instrument whereby the UK was able to join the European Union.

Front 21

S.2 (4) ECA 1972

Back 21

It also provides, in section 2(4), that all UK's legislation including Acts of Parliament have effect "subject to" directly applicable EU law.

Front 22

Costa v ENEL

Back 22

Confirmed the supremacy of EU law above and over the UK domestic law.

COMPARE: with Cheney v Conn and ex p Factortame

Hint 22

EU law supreme over than UK law.

Front 23

Ex p Factortame

Back 23

The court disapplied the Merchant Shipping Act and recognised that EU law is supreme over the UK national law.

Compare: Van gend en loos and Costa v ENEL

Front 24

SOS Employment v ex p Equal Opportunities Commission

Back 24

The Courts declared the UK domestic legislation is incompatible with EU law

Front 25

Ellen Estate Streets

Back 25

A later Act, when provision is inconsistent with a provision of an earlier Act, repeals those provisions by implications.

Front 26

Vauxhall Estates

Back 26

The later Act repeals the earlier Act.

Front 27

AXA General Insurance Ltd v Lord Advocate

Back 27

It is not unthinkable that the government may seek to abolish judicial review. But the Rule of Law requires that judges must retain the power to insist that legislation of that kind is not law.

Front 28

Lord Hope in R v Jackson AG

Back 28

Parliamentary sovereignty is no longer, if it ever was, absolute. but the rule of law is the ultimate controlling factor on which our constitution is based.

Front 29

Lord Steyn in R (Jackson) v AG

Back 29

Parliamentary Sovereignty is a "made up of common law".

Front 30

Thoburn v Sunderland City Council

Back 30

Laws LJ mentioned about "constitutional statute" which cannot be impliedly repealed. (ECA 1972)

Front 31

The High Court led by Lord Thomas

Back 31

Court held that the Royal Prerogative to conduct foreign affairs does not, on the facts of the present case, extend to giving formal notice of the U.K.’s intention to leave the EU without Parliamentary approval.

Front 32

Great Repeal Bill

Back 32

that aims to end the authority of European law in Britain from the very first moment the country has left the EU.

Front 33

Challenges of Parliamentary Sovereignty

Back 33

1. HRA 1998
2. ECA 1972
3. No Implied Repeal of HRA 1998 and ECA 1972
4. Devolution
5. Executive's dominance

Front 34

HRA 1998

Back 34

Its aim was to incorporate into UK law the rights contained in the European Convention on Human Rights.

Front 35

Devolution

Back 35

The statutory granting of powers from the Parliament to the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly.

Front 36

Executive dominance

Back 36

Lord Hailsham stated: "elective dictatorship"

- Parliament a mere "rubber stamp" of executive legislation.

Front 37

Bellinger v Bellinger

Back 37

Institutional competence.

Where the courts said that determining when a person legally changes their gender is not the court's decision but should be left for Parliament.

Front 38

Courts may challenge the validity of the Act of Parliament if it was:

R N L N

Back 38

1. Against common reason or Repugnant (Dr Bonham's Case)
2. against Natural equity (Day v Savage)
3. Contrary to the Law of God ( R v Love)
4. Contrary to Natural justice (City of London v Wood)

Front 39

Prof Tomkins

Back 39

Statute is legally supreme as the highest source of constitution i.e. no authority higher than' the Act of Parliament. Courts must uphold and enforce it.