BBP SG Ch: Parliamentary Supremacy Flashcards
What are Dicey’s three basic rules of Parliamentary Supremacy?
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
How is Parl limited in the subjects it can legislate on?
- it isn’t: it can pass any legislation regardless of practicalities, absurdities or unfairness
What geographical or temporal limits is Parl bound by?
none
- can legislate for non-sovereign territory; Mortenson v Peters Norwegian fishing captain
- can be retrospective or prospective; Burmah Oil v Lord Advocate
What are the two kinds of repeal?
- express repeal
- implied repeal
What is express repeal?
- legislation is passed which expressly repeals a previous Act.
What is implied repeal?
- if an Act is partially or wholly inconsistent with an earlier Act, the inconsistent parts of the earlier legislation are repealed
Give two cases which demonstrate the importance of implied repeal.
- Vauxhall Estates v Liverpool Corporation
- Ellen St Estates v Minister of Health
In what ways could Parl attempt to bind itself?
- substantively (content of future legislation)
- manner (ie how legislation should be passed/repealed)
- form (eg requiring certain express words)
Give an Act which effectively imposed substantive and procedural restrictions on future Parliaments.
- Statute of Westminster 1931 on the Dominions
- imposed effective political limits but theoretically no legal limits
In what case was there a suggestion Parliament could bind itself as to the manner of future legislation?
- Attorney-General for New South Wales v Trethowan and Others
- obiter comments suggesting that Parl legislation could be entrenched
Give a case where the courts refused to judicially review the manner in which legislation had been passed.
Edinburgh and Dalkeith Rly v Wauchope
What is the ‘enrolled bill’ rule and where does it come from?
- 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.
Give a case which stated that statutes could alter the constitution
Ex p Cannon Selwyn - Irish churches etc
Give a case which stated that statutes could override international public law
Cheny v Conn - a statute must be lawful because it is the highest form of law
Give a case which stated that statutes were not subject to fundamental constitutional principles
R v Jordan
What are the four main challenges to Parl supremacy?
- devolution
- Human Rights Act 1998
- membership of the EU
- obiter comments in Jackson
Why is devolution not a threat to Parl supremacy?
Parl can take it back
Why is the HRA 1998 not a threat to Parl supremacy?
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
How could the HRA 1998 be a threat to Parl supremacy?
- 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
How has EC law affected Parl supremacy?
- due to Factortame traditional doctrine of implied repeal has been extinguished in terms of EC rights
What case suggested a heirarchy of Acts of Parl?
- Thoburn v Sunderland City Council
- division between ‘consitutional’ statutes and ‘ordinary’ statutes
- constitutional statutes could not be impliedly repealed
