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Public Law > Challenges to Parliamentary Sovereignty (L12) > Flashcards

Challenges to Parliamentary Sovereignty (L12) Flashcards

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1
Q

what are the 4 modern challenges to PS

A

-Human rights law
-Common law ‘fundamental’ principles/rights
-EU Membership and Brexit
-Devolution

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2
Q

what is the sovereign law in the UK on human rights

A

-Human Rights Act 1998

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3
Q

what are the 2 main constitutional parts of the HRA 1998

A

-interpretive duty s.3(1)
-declarations of incompatibility s.4(6)(a)

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4
Q

what is said in s.3(1) HRA 1998 relating to interpretive duty

A

-‘So far as it is possible to do so, primary legislation and subordinate legislation must be read
and given effect in a way which is compatible with the Convention
rights

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5
Q

what is said in s.4(6)(a) HRA 1998

A

A declaration of incompatibility ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given

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6
Q

what does s.3(1) Interpretive duty and s.4(6)(a) declarations of incompatibility mean

A

-in regards to Human Rights, go to s.3 and interpret primary legislation in a way that is compatible with ECHR/ convention rights
-if this is not possible, go to s.4(6)(a) … EXPLAINNN

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7
Q

what does the HRA 1998 do for PS (3)

A

(i) allows courts to review the substantive content of an AoP (eg Nicklinson (2014) on assisted dying)
(ii) allows courts to ‘depart from’ the actual words Parliament has
used (eg R v A (2001); Ghaidan (2004))
(iii) allows courts to signal incompatibility with ECHR rights to Parliament / government (who may or may not respond!)
(eg prisoner voting; Hirst (2001); Chester (2014))

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8
Q

what is the case example for HRA 1998 allowing courts to review the substantive content of AoP

A

-Nicklinson (2014) on assisted dying

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9
Q

what is the case example for HRA 1998 allowing courts to ‘depart from’ the actual words Parliament has used

A

-R v A (2001); Ghaidan (2004)

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10
Q

what is the case example for HRA 1998 allowing courts to signal incompatibility with ECHR rights to Parliament/ government (who may or may not respond)

A

-eg prisoner voting in Hirst (2001) and Chester (2014)

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11
Q

does the HRA 1998 formally preserve PS

A
  • yes BUT
    (i) allows courts to review the substantive content of the AoP
    (ii) allows courts to ‘depart from’ the actual words Parliament has used
    (iii) allows courts to signal incompatibility with ECHR rights to Parliament/ government
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12
Q

what is the view of the judiciary on PS and HR according to Lord Neuberger

A

The revolutionary effect of the 1998 Act is, in summary terms, threefold…
- First, Judges are now called upon more frequently to rule on moral and political
issues, given that is what human rights involve….
- Secondly, Judges must perform a quasi-statute-writing function [by virtue of s.3 of the 1998 Act]…. T
- Thirdly, under section 4 of that Act, Judges must tell Parliament when legislation cannot be made to comply and, with one exception (prisoners’ votes), it has done
so.

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13
Q

what does Lord Neuberger argue is the first revolutionary effect of the 1998 HRA

A
  • First, Judges are now called upon more frequently to rule on moral and political
    issues, given that is what human rights involve….
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14
Q

what does Lord Neuberger argue is the second revolutionary effect of the 1998 HRA

A
  • Secondly, Judges must perform a quasi-statute-writing function [by virtue of s.3
    of the 1998 Act]….
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15
Q

what does Lord Neuberger argue is the third revolutionary effect of the 1998 HRA

A
  • Thirdly, under section 4 of that Act, Judges must tell Parliament when legislation
    cannot be made to comply and, with one exception (prisoners’ votes), it has done
    so.
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16
Q

what is said on PS and HR in the case of UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill Reference [2021] UKSC 42

A

-Parliament can itself qualify its own sovereignty, as it did when it conferred on the
courts the power to make declarations of incompatibility with rights guaranteed by
the ECHR, under section 4 of the Human Rights Act. The Scottish Parliament, on the other hand, cannot qualify the sovereignty of Parliament’ [50]

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17
Q

what is said in Dr Bonham’s case 1609 regarding PS and Common Law Limits

A

-when an Act of Parliament is
against common right and reason, or repugnant, or
impossible to be performed, the common law will controul
it, and adjudge such Act to be void
-basically, AoP should be overruled by common law if it is against reason, repugnant or impossible

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18
Q

what case continues the views set out in Dr Bonham’s case (1609) in regards to PS and Common Law Limits

A

-Jackson 2005
-states PS is a ‘construct of the common law’ and ‘courts may have to qualify’ it if faced with a challenge to a constitutional fundamental (like judicial review)

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19
Q

give a case example for ‘could be fundamental common law PRINCIPLES’

A

-UNISON (2017) ‘access to justice’

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20
Q

give a case example for ‘could be fundamental common law RIGHTS’

A

-Simms (2000

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21
Q

what was said in Simms (2000)

A

‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary
to fundamental principles of human rights…. The constraints upon its exercise by
Parliament are ultimately political, not legal. But the principle of legality means that
Parliament must squarely confront what it is doing and accept the political cost.
Fundamental rights cannot be overridden by general or ambiguous words.’

22
Q

can common law be a limited constraint

A

-there is NO case where courts have actually ‘struck down’ an AoP using common law
-scope of common law rights can be limited

23
Q

give 2 examples of cases showing that the scope of common law rights can be limited

A

Eg Moohan (2014) – no CL right to vote
Eg PRCBC (2022) – no CL right to citizenship

24
Q

what was said in Moohan (2014)

A

‘I do not exclude the possibility that in the very unlikely
event that a parliamentary majority abusively sought to entrench its power
by a curtailment of the franchise or similar device, the common law,
informed by principles of democracy and the rule of law and
international norms, would be able to declare such legislation
unlawful….’ [35]

25
Q

what was said in Privacy International (2019)

A

– Privacy International (2019): ‘it is ultimately for the courts, not the
legislature, to determine the limits set by the rule of law to the power to
exclude [judicial] review’ [131]

26
Q

what 2 cases states PS as a fundamental principle of our constitutional law

A

-MIller (no.2) (2019)
-Re Allister (2023)

27
Q

what was said in Re Allister (2023)

A

-the interpretative presumption that Parliament does
not intend to violate fundamental rights cannot override the clearly
expressed will of Parliament’
– ‘The most fundamental rule of UK constitutional law is that Parliament, or
more precisely the Crown in Parliament, is sovereign and that legislation
enacted by Parliament is supreme’ [66]

28
Q

could PS and Common Law Limits have been tested by the Safety of Rwanda (Asylum and Immigration Act (2024)

A

-section 1(4)
‘It is recognised that—
(a) the Parliament of the United Kingdom is sovereign, and
(b) the validity of an Act is unaffected by international law’

29
Q

uegfufgu

A
30
Q

what is EU law based on

A

-supremacy over national law
-to be part of EU you had to accept that essentially

31
Q

what law gave effect to EU law in the UK

A

-European Communities Act 1972
-s.2(4); ‘any enactment passed or to be passed… shall be construed and have effect subject to the foregoing provisions
of this section’

32
Q

why is EU law a challenge to PS

A
  • EU law is meant to have supremacy over UK law
33
Q

what is the key case concerning PS and EU

A

-Factortame (No.2 ([1991] 1 A.C. 603

34
Q

what does Lord Bridge 658-659 say in Factortame

A

– ‘whatever limitation of its sovereignty Parliament accepted when it enacted
the European Communities Act 1972 was entirely voluntary’
– ‘Under the terms of the Act of 1972 it has always been clear that it was the
duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable
rule of Community [or EU] law’
– ‘Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply’

35
Q

what was decided in Factortame (No.2)

A
  • EU law has supremacy in the UK
    -contrary national law must be disapplied as the UK Parliament said so
36
Q

what case confirms the reconciliation of EU supremacy and UK PS in domestic law

A

-Miller (No.1) (2017) UKSC 5

37
Q

what was said in Miller (No.1) (2017) UKSC 5 regarding EU supremacy

A

‘consistently with the principle of Parliamentary sovereignty, this unprecedented
state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute’ [60]

38
Q

what ended EU supremacy in the UK

A

-Brexit
-EU (Notification of Withdrawal) Act 2017
-EU (Withdrawal) Act 2018
-EU (Withdrawal Agreement) Act 2020

39
Q

give 3 questions regarding PS that arose during Brexit

A

-Did the 2016 referendum ‘trump’ parliamentary sovereignty?
-If Parliament was always sovereign, what was there to ‘restore’?
-Did the Brexit process remove EU supremacy?

40
Q

what were the 3 main legislation delivering EU exit

A

EU (Notification of Withdrawal) Act 2017: withdrawal
negotiations started
- EU (Withdrawal) Act 2018, s.1: ECA 1972 repealed
- EU (Withdrawal Agreement) Act 2020, s.1: effects of ECA
1972 temporarily ‘saved’ for transition period (end Dec 2020)

41
Q

give 2 ways EU supremacy was partly preserved

A

of ‘retained EU law’ by EU (Withdrawal) Act 2018, s.5
(now abolished: Retained EU Law (Revocation and Reform) Act
2023)
- of ‘separation agreement law’ (citizens rights and NI rules) by
EU (Withdrawal Agreement) Act 2020, s.5
(still has supremacy:
eg SoS Work and Pension v AT [2023] EWCA Civ 1307;
Re Dillon (2024) NICA 59)

42
Q

what abolished the EU (Withdrawal) Act 2018 s.5 (retaining EU law)

A

-Retained EU Law (Revocation and Reform) Act 2023)

43
Q

give 2 case examples of the supremacy of ‘separation agreement law’ by EU (Withdrawal Agreement) Act 2020 s.5

A

SoS Work and Pension v AT [2023] EWCA Civ 1307;
Re Dillon (2024) NICA 59)

44
Q

does the devolution of primary legislative power preserve PS

A

-EXPLICITLY

45
Q

how does devolution of primary legislation explicitly preserve PS

A

-Scotland Act 1998, s.28(7)
-NI Act 1998 s.5(6)
-Gov of Wales Act 2006 s.93.5
-“This section does not affect the power of the Parliament of the United
Kingdom to make laws for …”

46
Q

what does the Sewel convention do for devolved powers

A

-limits the re devolved matters/ legislative power of UK Parl

47
Q

what is the statutory form of the Sewel Convetion

A

-Scotland Act 1998(amended by SA 2016) s.28(8):
“But it is recognised that the Parliament of the United Kingdom will not
normally legislate with regard to devolved matters without the consent of the
Scottish Parliament.’

48
Q

what is the limited legal effect of a (statutory) constitutional convention

A

-Judges therefore are neither the parents nor the guardians of political
conventions; they are merely observers.’ [146]
- ‘the UK Parliament is not seeking to convert the Sewel Convention into a rule which
can be interpreted, let alone enforced, by the courts; rather, it is recognising the
convention for what it is, namely a political convention, and is effectively declaring
that it is a permanent feature of the relevant devolution settlement.’ [148]
Miller v SofS for Exiting the EU [2017] UKSC 5

49
Q

what section gives permanence to the Scottish Parliament

A

-s.63A
-s.63A(1) - permanent part of UK constitutional arrangements
-s.63(A)(2) - signals commitment of UK P+G to Scottish P+G
-s.63A(3) - Scottish P+G cannot be abolished unless decided by Scottish referendum

50
Q

give 5 questions o the permanence of Scottish Parliament

A
  • Can Parliament ‘bind its successors’ then?…
    ‘manner and form’ sovereignty?
  • What kind of limit is this? substantive or process?
  • Is it just legislative symbolism?
  • Was the Scottish Parliament / Welsh Senedd likely to
    be abolished before this?
  • If it simply recognises ‘constitutional reality’, what’s
    the point of dismissing it as legally impossible?
51
Q

conclusions on challenges to PS

A
  • …but also strong signs that PS remains at the core of the UK
    constitution
  • Are we seeing the idea of parliamentary sovereignty change
    rather than disappear?
  • Parliament constraining its power by legislation, rather than
    abandoning its sovereignty?

Public Law (8 decks)

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