BBP SG Ch: Parliamentary Supremacy

Question 1

What are Dicey’s three basic rules of Parliamentary Supremacy?

Answer 1

1) Parl is supreme law-making body
2) no Parl may be bound by a predecessor bind a successor
3) no person or body may question the validity of an enactment of Parl

Question 2

How is Parl limited in the subjects it can legislate on?

Answer 2

• it isn’t: it can pass any legislation regardless of practicalities, absurdities or unfairness

Question 3

What geographical or temporal limits is Parl bound by?

Answer 3

none

• can legislate for non-sovereign territory; Mortenson v Peters Norwegian fishing captain
• can be retrospective or prospective; Burmah Oil v Lord Advocate

Question 4

What are the two kinds of repeal?

Answer 4

• express repeal

- implied repeal

Question 5

What is express repeal?

Answer 5

• legislation is passed which expressly repeals a previous Act.

Question 6

What is implied repeal?

Answer 6

• if an Act is partially or wholly inconsistent with an earlier Act, the inconsistent parts of the earlier legislation are repealed

Question 7

Give two cases which demonstrate the importance of implied repeal.

Answer 7

• Vauxhall Estates v Liverpool Corporation

- Ellen St Estates v Minister of Health

Question 8

In what ways could Parl attempt to bind itself?

Answer 8

• substantively (content of future legislation)
• manner (ie how legislation should be passed/repealed)
• form (eg requiring certain express words)

Question 9

Give an Act which effectively imposed substantive and procedural restrictions on future Parliaments.

Answer 9

• Statute of Westminster 1931 on the Dominions

- imposed effective political limits but theoretically no legal limits

Question 10

In what case was there a suggestion Parliament could bind itself as to the manner of future legislation?

Answer 10

• Attorney-General for New South Wales v Trethowan and Others
• obiter comments suggesting that Parl legislation could be entrenched

Question 11

Give a case where the courts refused to judicially review the manner in which legislation had been passed.

Answer 11

Edinburgh and Dalkeith Rly v Wauchope

Question 12

What is the ‘enrolled bill’ rule and where does it come from?

Answer 12

• British Railways Board v Pickin

- there should be no arguments in court about whether a passed bill should be on the statute books or not.

Question 13

Give a case which stated that statutes could alter the constitution

Answer 13

Ex p Cannon Selwyn - Irish churches etc

Question 14

Give a case which stated that statutes could override international public law

Answer 14

Cheny v Conn - a statute must be lawful because it is the highest form of law

Question 15

Give a case which stated that statutes were not subject to fundamental constitutional principles

Answer 15

R v Jordan

Question 16

What are the four main challenges to Parl supremacy?

Answer 16

• devolution
• Human Rights Act 1998
• membership of the EU
• obiter comments in Jackson

Question 17

Why is devolution not a threat to Parl supremacy?

Answer 17

Parl can take it back

Question 18

Why is the HRA 1998 not a threat to Parl supremacy?

Answer 18

1) does not empower courts to strike down primary legislation, just gives them the right to make a non-binding declaration
2) can be repealed by Parl

Question 19

How could the HRA 1998 be a threat to Parl supremacy?

Answer 19

• declarations of incompatibility have the practical effect of killing a law
• under s3 HRA 1998 courts have the power to interpret laws so they fall in line with the HRA
• in cases like R v A (Complainant’s Sexual History) courts seemed willing to interpret laws to comply wiht HRA even if this did not comply with Parl’s intention

Question 20

How has EC law affected Parl supremacy?

Answer 20

• due to Factortame traditional doctrine of implied repeal has been extinguished in terms of EC rights

Question 21

What case suggested a heirarchy of Acts of Parl?

Answer 21

• Thoburn v Sunderland City Council
• division between ‘consitutional’ statutes and ‘ordinary’ statutes
• constitutional statutes could not be impliedly repealed