(4) Constitutional Statutes & Residual Common Law Limitations Flashcards
What was the significance of the case of Thoburn v Sunderland City Council?
In this case Laws LJ argued that the Common Law had come to recognise the existence of ‘constitutional statutes’.
How did Laws LJ distinguish between constitutional and ordinary statutes?
Laws LJ argued that there should be some sort of recognition of a hierarchy of Acts of Parliament. Some Statutes were to be considered ‘ordinary’ Statutes and thus subject to implied repeal, while ‘constitutional statutes’ are further insulated from the orthodox process of implied repeal, the effective repeal of such a Statute may only be achieved through express words.
How did Law LJ define ‘constitutional statutes’?
According to him, they were those that either;
1. Condition the legal relationship between citizens and state, in some general overarching manner
Or;
2. Enlarges or diminishes the scope of what we would now regard as a fundamental constitutional rights
What is the extent of this infringement to Parliamentary Sovereignty?
It certainly appears to contribute to the inroads into Parliaments sovereign power/authority. This inroad should not, however, be overstated. It is one of form rather than substance and Parliament need only use words of a sufficiently clear and precise nature to avoid such a restriction.
Which case now provides support for the view that there are indeed a hierarchy of statutes?
The HS2 Case
How may the courts be said to hold a residual common law limitation on sovereignty?
The interpretive powers of the Courts hold great constitutional significance, whether it follows from this that the Court may, in some circumstances, refuse to recognise the legal and political supremacy of Parliament is a much disputed question.
Who provided support for the view that the courts held such a residual common law limitation?
Prior to the ‘Glorious Revolution’ it was suggested by Coke LJ that the Courts held the ability to control the exercise of legislative power.
How has the argument of Coke LJ subsequently been undermined?
Such a notion has been undermined significantly by its lack of use/exercising.
Who provided further support for the argument of Coke LJ regarding residual common law limitations to sovereignty?
Former Lord Chief Justice of England and Wales, Lord Woolf did, however, suggest that if Parliament were to do the unthinkable that the Courts may have to respond in a manner ‘without precedent’, he said there were ‘limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold’.
What is the key issue in relation to residual common law limitations on sovereignty?
At what point may the Courts decide that a legislative decision no longer carries the authority which makes it immune from judicial review? In reality there is no clear answer to this question, it is largely guesswork.
