Challenges to Parliamentary Sovereignty Flashcards
What are the 5 main challenges??
1) Human Rights Act 1998
2) Rule of Law
3) Devolution
4) EU law
5) Brexit
Why is the Human Rights Act a threat to PS?
The convention is a limitation on Parliament, because its gives effect to the provisions of the ECHR into UK law, which made changes to the UK constitutional law and gave judges new powers under the HRA, but nothing is above Parliament and so they introduced section 3 and 4 into the Act.
Section 3 of HRA?
Case law?
Judicial Interpretation 3(1) 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
The courts’ interpretation of a statute under s.3 does not need to provide an interpretation that is consistent with the intention of Parliament when it enacted the statute (Ghaidan v Godin-Mendoza). Hence, the courts could give a statute a different meaning to that originally intended by Parliament. Nonetheless, Parliament remains supreme.
Section 4 of HRA?
Case law?
Declaration of incompatibility
When interpretation within the convention is not possible it does not strike down an act of parliament, or invalidate it, but puts pressure on the government to reform/amend the act
As the courts can not strike down an Act of Parliament, Parliamentary Sovereignty remands formally intact. Parliament simply has the option to act.
(A v Secretary of State for the Home Dept)
Where it is not possible to interpret a statute compatibly with the ECHR under Section 3, the courts can have recourse what?
Section 4 and make a declaration of incompatibility
Could the judiciary refuse to apply an Act of Parliament if it affected a principle of the rule of law?
The courts have managed to interpret legislation to be consistent with the fundamental principles of the rule of law (Anisminic)
What is an ouster clause?
have these been allowed?
how does it challenge RoL?
a clause prohibiting judiciary from taking certain action
yes - stopping people from taking trials to court (R (privacy international) v investigatory powers tribunal)
Challenged principle that everyone should have the right to a trial, but this was struck down and the ouster clause allowed = sovereignty
Rule of Law - Obiter dicta from Lord Steyn
R (Jackson) v Attorney General
“the classic account of Dicey’s parliamentary sovereignty can now be seen to be out of place in modern UK. Nevertheless, PS is still the general principle of our constitution; a construct of our common law”
May have to decide to override an act of parliament (They could!)
Lord Hope in AXA v Lord Advocate?
“rule of law requires that judges retain the power to insist that legislation of extreme kind is not law which courts will recognise”
Because of the political restraints on Parliament we would hope that no extreme legislation that goes against the RoL would be passed …
Example in case law?
Asylum and Immigration Act : tried to create an ouster clause in the original bill but it was rejected by parliament
What is devolution? E.g.
Decentralising legislative powers to other legislatures in the UK
E.g. Scotland Act 1998
Is having more than one legislature a challenge to PS?
Scotlands provisions to retain PS…
Scotland Act 1998 s28(7)?
“This section does not affect the power of Parliament of the UK to make laws for Scotland” (explicitly retaining sovereignty)
Scotlands provisions to retain PS…
Scotland Act 1998 s28(8)
“But, it is recognised that the Parliament of the UK will not normally legislate with regards to devolved matters without consent of the Scottish Parliament”
“Sewel convention”
The sewel convention … legal effects?
doesn’t have binding legal affect - but a political obligation upon Parliament
Where did the provisions of the Scotland Act become challenged?
Miller v Secretary of State for Exiting the EU
