Constitutional - Parliamentary Supremacy Flashcards
Intro - 1) PS - Define
Parliamentary supremacy, as formulated by AV Dicey, is the principle that:
a) Parliament is the supreme law making body, and can ENACT AND REPEAL LAWS ON ANY SUBJECT.
b) No Parliament may be be bound by a predecessor nor bind a successor (i.e. laws cannot be entrenched)
c) No other person / body may question the validity of an act Parliament
Intro - 2) PS - Origins
a) Common law doctrine developed by the judges
b) Origins: The 17th century for supremacy between the Crown and Parliament, which culminated in the Bill of Rights 1689, Art. 9 and the Enrolled Act Rule.
Intro - 3) PS - Argument
a) The traditional school - PS remains intact:
i) Parliament is the supreme rule-making body
ii) No parliament may be bound by a predecessor / successor
iii) No person or body may question the validity of an Act - “enrolled act rule” (Pickin v British Railway Board)
b) However:
i) Steyn - R v Jackson: ‘The classic account given by Dicey can now be seen to be OUT OF PLACE in the UK’. Also, the concept of ‘rule of law’ ensures checks on the single supremacy of the law
ii) The doctrine of PS has been qualified and eroded to such a degree that from a practical perspective, Parliament is no longer supreme and can no longer do as it pleases, because of domestic and European limitations (particularly ECA 1972; HRA 1998)
FOR the supremacy of parliament.
1) Parliament’s UNLIMITED LEGISLATIVE COMPETENCE - provide examples:
a) Alter the constitution
i) Act of Settlement 1700 - establishing independent judiciary
ii) European Communities Act 1972 - incorporating EU law into the UK
b) Override constitutional Convention
i) Madzimbamuto v Lardner Burke - statute overrode the convention of not legislating for a former colony.
ii) Fixed-term Parliaments Act 2011 - removes power of the Crown to dissolve parliament.
c) Alter / override the Royal Prerogative
i) Crown Proceedings Act 1947 - removed immunity of the Crown from claims in Tort
ii) Fixed-term Parliament Bills Act - 5-yr term
iii) R v SoS4 Home Department, ex p Fire Brigades Union.
d) Override International Law
i) Cheney v Conn - tax statute prevailed over Geneva Convention
e) Operate retrospectively
i) War Damage Act 1965 and Burmah Oil v Lord Advocate - Crown not liable for previous war damage.
FOR the supremacy of parliament.
2) The doctrine of implied repeal
a) A later statute will impliedly repeal an earlier one where their content is inconsistent. (Ellen Street Estates v Minister of Health)
b) But - consider counter argument: there may be LIMITS TO THE DOCTRINE which effectively constrains Parliament’s supremacy:
i) Thoburn v Sunderland City Council - “ordinary statute may be impliedly repealed. Constitutional statutes may not”. Const. statutes are those which:
1) Condition the relationship between citizen and state.
2) Change the scope of fundamental constitutional rights.
ii) H v Lord Advocate - endorses this view
iii) R (HS2 Action Alliance Ltd) v SoS4 Transport - where EU law conflicts with UK’s constitutional law, const cannot be overridden without unequivocal evidence.
FOR the supremacy of parliament.
3) Proceedings in, and acts of parliament will not be questioned / set aside / invalidated by another body.
a) Supported by Bill of rights (1689) and Pickin v British Railways
b) However consider - Parliamentary supremacy has been detracted from in:
Jackson v AG (obiter J Steyn) - suggested that where Parliament legislated in a manner contrary to the rule of law, judiciary will refuse to uphold such legislation. However exceptional case.
AGAINST the supremacy of parliament
1) Manner and Form Debates
The notion that Parliament cannot be bound by a previous Parliament is increasingly less certain:
- If legislating by a future parliament can be made easier (Parliament Act 1911 and 1949), why can it not also be made harder? e.g. stipulating a certain majority of votes required. Argument supported by:
i) A-G for New South Wales v Trethowan: entrenchment is possible (Priv.C case)
ii) Manuel v AG: Slade LJ obiter comments - courts might be willing to enforce/follow such manner and form requirements imposed by earlier acts
iii) EU Act 2011: before a future gov. can ratify any treaty change, they must first hold a referendum unless such change does not involve the transfer of power from UK to EU.
AGAINST the supremacy of parliament.
2) Domestic limitations:
a) PS has been qualified by devolution of power to Scotland - Scotland Act 1998 (Also Wales 1998)
b) Acts of Independence enacted in the 20th Century have in practical sense removed the power for Parliament to legislate for ex-colonies.
c) Henry VIII powers: permit the relevant government Minister to amend or repeal the relevant statute.
AGAINST the supremacy of parliament.
3) European Limitations
a) ECA 1972 - the most devastating infringement on doctrine of PS: EU treaties (TFEU) and other EU leg. is a source of law in the UK under the principle of Direct Effect (s.2(1) ECA 1972)
