Parliamentary Sovereignty

Question 1

What are the 3 basic rules of PARL SOV?

Answer 1

1. Parliament is the supreme law-making body
2. No Parliament may be bound by a predecessor or bind a successor
3. No person or body may question validity of an Act of Parliament

Question 2

What does it mean for PARL to be the supreme law-making body?

Answer 2

There are no substantive limitations on the legislation PARL may enact
* No subject limitations (can legislate contrary to fundamental principles of human rights)
* No geographica/temporal limitations

But obviously political limits

Question 3

What is express repeal?

Answer 3

Legislation passes that specifically states an intention that earlier Act should be replaced

E.g. EA 2010 replaced network of anti-discriminatory law

Question 4

What is implied repeal?

Answer 4

If a new Act is partially/wholly inconsistent with previous Act, the latter is repealed to the extent of the inconsistency

PARL deemed to have implicitly intended to repeal earlier one

Will only draw implication where two statutes are irreoncilable

Question 5

How does implied repeal demonstrate PARL SOV?

Answer 5

PARL cannot bind successors to prevent a future statute from being impliedly repealed by later incompatible one

Sovereignty takes a continuing form

Question 6

What does it mean for no person/body to be able to question the validity of an Act of PARL?

Answer 6

The manner in which legislation is passed and substance of law are not reviewable by courts

Because Acts of PARL are highest form of law

Question 7

What is the effect of manner in which law is passed and substance of law being unreviewable?

Answer 7

• Courts cannot quash primary legislation (even if unconstitutional or contrary to international law standards)
• No judicial review allowed of alleged procedural irreularity (how statute went through PARL during legislative process)

Question 8

What is the Enrolled Bill rule?

Answer 8

Once bill has become an Act of PARL, any departure from normal procedure during its passange cannot be corrected by courts

There is finality when an enactment is passed

Question 9

What is meant by entrenchment by ‘manner and form’?

Answer 9

The idea of PARL introducing procedural requirements making it harder for subsequent PARLs to change the law i.e. one Act expressly states that its terms cannot ever be repealed

Debate is ongoing and unconcluded

Question 10

What does the possibility of manner and form entrenchment seemingly apply to?

Answer 10

Subordinate legislatures i.e. devolved assemblies in the UK

Question 11

Is constitutional legislation binding?

I.e. limiting on itself as an institution?

Answer 11

Yes - but only for as long as subsequent PARLs wish them to be so

Question 12

What must PARL do if it wishes to enact laws that undermine fundamental rights?

Answer 12

State its intention in crystal clear terms - otherwise courts will apply storng presumption that PARL did not intend to restrict rights

Question 13

Would a court recognise oppressive and wholly undemocratic legislation?

Answer 13

Would have to consider whether it is a constitutional fundamental that even a sovereign PARL cannot abolish

Obiter

Question 14

Can legislation oust the court’s right to scrutinise governmental actions/decisions through judicial review?

Answer 14

Has previously been held that ouster clauses will not prevent court challenging decisions

Question 15

What is the Diceyan theory of PARL SOV?

Answer 15

The legal authority of PARL is unlimited

Question 16

What is the difference between a monist and dualist state, and which one is the UK?

Answer 16

• Monist = domestic and international law obligations operate on same place
• Dualist = there is a distinction between the two types of law (UK)

Question 17

Which type of law has a higher status in the UK legal system and why?

Out of domestic and international

Answer 17

Domestic - because it is created by PARL

Question 18

What happens if PARL wishes international legal systems/sets of standards to be enforced?

Answer 18

It needs to incorporate this external law into UK legal system by passing a statute to that effect

E.g. European Communities Act (ECA) 1972, HRA 1998

Question 19

Why did PARL have to pass the European Communities Act after joining the EU and what was its effect?

Answer 19

Treaties have no direct effect on English law - incorporated Treaty of Rome into domestic law

Was modified several times after

Question 20

What 3 key provisions in the ECA related to sovereignty?

Answer 20

1. S2(1) - gave effect to EU law within the UK (without further enactment)
2. S3(1) - gave effect to case law of the CJEU
3. S2(4) - accomodated the primacy of EU law over domestic law

Question 21

What happens when EU law and national law conflict?

According to the CJEU

Answer 21

EU law must prevail

Problem for PARL SOV!

Question 22

What happened to UK statutes enacted before ECA 1972 that conflicted with EU law?

Answer 22

Implied repeal operated to ensure any incompatible statutes would be overriden by ECA itself

Question 23

How did UK courts resolve issues re PARL SOV and complying with EU law?

Answer 23

Applied presumption that whenever it passed law, PARL was intending to comply with EU law

Purposive approach

Question 24

What was the outcome when the courts were unable to construe the meaning of a statute purposively to make it conform to EU law?

I.e. what was the outcome of Factortame?

Answer 24

They could suspend an Act of PARL (to extent it conflicted with EU law)

So EU law could override conflicting UK statutes

Question 25

How was the outcome of Factortame reconciled with PARL SOV?

Answer 25

PARL had voluntarily signed up to limit its own sovereignty when joining the EU (and enacting ECA)

Question 26

What is meant by a ‘hierarchy of statutes’?

Answer 26

A hierarchy which can be divided into ordinary and constitutional statutes (e.g. ECA, HRA, Devolution)

Question 27

Would implied repeal not operate where law enacted post-1972 conflicted with EU law?

Answer 27

No - an exception to the doctrine of implied repeal had been created through constitutional statute

Question 28

What is the conclusion re PARLs binding future PARLs given that the courts were temporarily able to enforce EU law principles over domestic statutes because of the ECA?

I.e. did the ECA prove that PARLs can bind future PARLs?

Answer 28

It is possible for one PARL to bind a future PARL, but binding effect lasts only as long as present PARL wished to be bound by it (as shown by withdrawal)

Question 29

So can a PARL impose limitations on itself?

Answer 29

Yes - but sovereignty remains because it cannot prevent future PARLs removing those limitations

Question 30

Can the policy of devolution be said to have undermined the sovereignty of Westminster?

Answer 30

No - devolution legislation stipulates that ultimate sovereignty resides in Westminster

Question 31

If they wanted, could PARL repeal devolution acts and effectively end devolution?

Answer 31

Legally yes, but political consequences would be huge

E.g. Scottish nationalist sentiment

So reversal of devolution would lead to constitutional crisis

Question 32

What was the effect of the Human Rights Act 1998?

Answer 32

Incorporated ECHR into UK domestic law

I.e. the ‘mirror principle’

Question 33

What does s2 HRA require courts to take into account when determining a question in connection with a right?

Answer 33

The jurisprudence of ECtHR if it is relevant to the proceedings

Question 34

How is the autonomy of English law maintained where jurisprudence from Strasbourg is less relevant/attuned to nature/culture of common law system?

Answer 34

Through dialogue between UK courts and ECHR

Each court learns from other best ways to promote ECHR rights

Question 35

What does s3 HRA state regarding reading/giving effect to legislation?

Answer 35

Legislation must be read in a way that is compatible with convention rights

I.e. interpret existing legislation in an ECHR-compatible way

Question 36

Does s3 enable courts to over-ride the apparent intention of PARL when interpreting legislation?

Answer 36

Not necessarily - a s3 interpretation should only be made where it does not ‘go against the grain’ of underlying policy of original legislation

Question 37

How does s3 (reading in a way compatible with ECHR) demonstrate the constitutional status of the HRA?

Re constitutional v ordinary statutes

Answer 37

The HRA (constitutional) allows the judiciary to read convention rights into ordinary statutes

Question 38

What declaration can be made by a court by virtue of s4 and when is it made?

Answer 38

A declaration of incompatibility - made when a provision is incompatible with a convention right

Question 39

Does the declaration of incompatibility have a legal effect?

Answer 39

No - rather than invalidating the law it merely flags that it is incompatible with relevant ECHR right

Then relevant minister will react

Question 40

Does a politician have to remedy the incompatibility?

Answer 40

No - but usually will

Question 41

As a constitutional statute, does the HRA undermine PARL SOV?

Answer 41

No - can be undone by subsequent PARL