2 - Parliament and Parliamentary Sovereignty Flashcards
Parliamentary Sovereignty is…
as defined by Dicey: “Parliament, under the English constitution, has the right to make or unmake any law, and that no person has a right to override the legislation of Parliament.”
3 Key parts:
- Parliament is the supreme law making body and may enact or repeal any laws
- no parliament may be bound by a predecessor or bind a successor
- no other person may question the validity of an Act or declare that Act to be unlawful
Parliament Acts 1911 and 1949
Constrained the HoL’s role and permits the Monarch to give Royal Assent to a bill that lacks the consent fo the HoL, provided that the speaker has certified it
R (Jackson) v. Attorney General (2005)
Hunting Act Case. Suggested that the courts may be prepared to consider the valididty of an Act of Parliament.
Cheney v. Conn (1968)
Statute may override international law
(#1 unlimited legislative competence of Parliament)
Madzimbamuto v. Lardner-Burke (1969)
Statute may override constitutional conventions
this case concerned the Southern Rhodesia Act - convention that UK Parliament would not legilsate for S.R. w/out consent from their govt.
(#2 unlimited legislative competence of Parliament)
R (miller) v. Secretary of State for Exiting the EU (2017) - Miller No1
Confims that statute may override constitutional conventions.
Facts: The Sewel convention says that Parliament will not normally legislate for Scotland without the Scottish Parliament’s consent.
Held: the Sewel Convention was not legally binding even though it had been codified;
(#2 unlimited legislative competence of Parliament)
Also, statute may abolsih or curtail aspects of the royal prerogative.
- as withdrawal from the EU = fundamental constitutional change by rmeoving EU law as a source of domestic law, needed Parliament’s consent.
(#4 unlimited legislative competence of Parliament)
Statute may alter the constitution
e.g. HRA 1998
(#3 unlimited legislative competence of Parliament)
Burmah Oil co v. Lord Advocate
Statute may operate retrosepctively
Facts - Oil sought compesnation for the destruction of oil instillations during WW2. HoL found the Crown liable to pay, but parliament enacted the war damage act 1965, which applied retrospectivelt and removed the right to compensation
(#4 unlimited legislative competence of Parliament)
Devolution - Scotland
Scotland Act 2012 gave additional powers over some aspects of taxation and other areas to the scottish parliament
Scotland Act 2016 Amends scotland act 1998 and
- Parliament will not legislate w regard to devolved matters w/out Scottish Parliament consent
- Scottish Parlaiment and Gov cant be abolsihed without a referendum vote
Devolution of Northern Ireland
Northern Ireland Act 1998 devolved powers to a North Ireland Assembly and created a power sharing executive.
Thoburn v. Sunderland City Council (2002)
Laws LJ stated that there are two types of statute, ordinary and constitutional.
Constitutional Statutes: Courts require actual intention from Parliament to change them.
Constitutional Statute
Test:
- it must concern the legal relationship between citizen and state; or
- the statute must change the scope of fundamental constitutional rights
For it to be repealed, there must be express words indicating it to be repealed.
R (HS2 Alliance) v Transport Secretary [2014] UKSC 3
In obiter, if the Bill of Rights 1688 is a more fundamental statute than the ECA 1972, and was outside the contemplation of the Parliament when it enacted the ECA, it can take precedence over EU laws
The Rule of Law - R (Jackson) v. Attorney General (2005)
Lord Steyn ruled that Parliamentary Sovereignty is not absolute and can be limited in some circumstances. He said that the courts could qualify the principle in exceptional circumstances to prevent Parliament from legislating in a manner that was contrary to the rule of law.
But Lord Bingham takes the stance that the Acts of Parliament take the highest legal authority
