Parliamentary Sovereignty Flashcards
What are the 3 basic rules of PARL SOV?
- Parliament is the supreme law-making body
- No Parliament may be bound by a predecessor or bind a successor
- No person or body may question validity of an Act of Parliament
What does it mean for PARL to be the supreme law-making body?
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
What is express repeal?
Legislation passes that specifically states an intention that earlier Act should be replaced
E.g. EA 2010 replaced network of anti-discriminatory law
What is implied repeal?
If a new Act is partially/wholly inconsistent with previous Act, the latter is repealed to the extent of the inconsistency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
How does implied repeal demonstrate PARL SOV?
PARL cannot bind successors to prevent a future statute from being impliedly repealed by later incompatible one
Sovereignty takes a continuing form
What does it mean for no person/body to be able to question the validity of an Act of PARL?
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
What is the effect of manner in which law is passed and substance of law being unreviewable?
- 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)
What is the Enrolled Bill rule?
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
What is meant by entrenchment by ‘manner and form’?
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making it harder for subsequent PARLs to change the law i.e. one Act expressly states that its terms cannot ever be repealed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
What does the possibility of manner and form entrenchment seemingly apply to?
Subordinate legislatures i.e. devolved assemblies in the UK
Is constitutional legislation binding?
I.e. limiting on itself as an institution?
Yes - but only for as long as subsequent PARLs wish them to be so
What must PARL do if it wishes to enact laws that undermine fundamental rights?
State its intention in crystal clear terms - otherwise courts will apply storng presumption that PARL did not intend to restrict rights
Would a court recognise oppressive and wholly undemocratic legislation?
Would have to consider whether it is a constitutional fundamental that even a sovereign PARL cannot abolish
Obiter
Can legislation oust the court’s right to scrutinise governmental actions/decisions through judicial review?
Has previously been held that ouster clauses will not prevent court challenging decisions
What is the Diceyan theory of PARL SOV?
The legal authority of PARL is unlimited
What is the difference between a monist and dualist state, and which one is the UK?
- Monist = domestic and international law obligations operate on same place
- Dualist = there is a distinction between the two types of law (UK)
Which type of law has a higher status in the UK legal system and why?
Out of domestic and international
Domestic - because it is created by PARL
What happens if PARL wishes international legal systems/sets of standards to be enforced?
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
Why did PARL have to pass the European Communities Act after joining the EU and what was its effect?
Treaties have no direct effect on English law - incorporated Treaty of Rome into domestic law
Was modified several times after
What 3 key provisions in the ECA related to sovereignty?
- S2(1) - gave effect to EU law within the UK (without further enactment)
- S3(1) - gave effect to case law of the CJEU
- S2(4) - accomodated the primacy of EU law over domestic law
What happens when EU law and national law conflict?
According to the CJEU
EU law must prevail
Problem for PARL SOV!
What happened to UK statutes enacted before ECA 1972 that conflicted with EU law?
Implied repeal operated to ensure any incompatible statutes would be overriden by ECA itself
How did UK courts resolve issues re PARL SOV and complying with EU law?
Applied presumption that whenever it passed law, PARL was intending to comply with EU law
Purposive approach
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?
They could suspend an Act of PARL (to extent it conflicted with EU law)
So EU law could override conflicting UK statutes
How was the outcome of Factortame reconciled with PARL SOV?
PARL had voluntarily signed up to limit its own sovereignty when joining the EU (and enacting ECA)
What is meant by a ‘hierarchy of statutes’?
A hierarchy which can be divided into ordinary and constitutional statutes (e.g. ECA, HRA, Devolution)
Would implied repeal not operate where law enacted post-1972 conflicted with EU law?
No - an exception to the doctrine of implied repeal had been created through constitutional statute
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?
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)
So can a PARL impose limitations on itself?
Yes - but sovereignty remains because it cannot prevent future PARLs removing those limitations
Can the policy of devolution be said to have undermined the sovereignty of Westminster?
No - devolution legislation stipulates that ultimate sovereignty resides in Westminster
If they wanted, could PARL repeal devolution acts and effectively end devolution?
Legally yes, but political consequences would be huge
E.g. Scottish nationalist sentiment
So reversal of devolution would lead to constitutional crisis
What was the effect of the Human Rights Act 1998?
Incorporated ECHR into UK domestic law
I.e. the ‘mirror principle’
What does s2 HRA require courts to take into account when determining a question in connection with a right?
The jurisprudence of ECtHR if it is relevant to the proceedings
How is the autonomy of English law maintained where jurisprudence from Strasbourg is less relevant/attuned to nature/culture of common law system?
Through dialogue between UK courts and ECHR
Each court learns from other best ways to promote ECHR rights
What does s3 HRA state regarding reading/giving effect to legislation?
Legislation must be read in a way that is compatible with convention rights
I.e. interpret existing legislation in an ECHR-compatible way
Does s3 enable courts to over-ride the apparent intention of PARL when interpreting legislation?
Not necessarily - a s3 interpretation should only be made where it does not ‘go against the grain’ of underlying policy of original legislation
How does s3 (reading in a way compatible with ECHR) demonstrate the constitutional status of the HRA?
Re constitutional v ordinary statutes
The HRA (constitutional) allows the judiciary to read convention rights into ordinary statutes
What declaration can be made by a court by virtue of s4 and when is it made?
A declaration of incompatibility - made when a provision is incompatible with a convention right
Does the declaration of incompatibility have a legal effect?
No - rather than invalidating the law it merely flags that it is incompatible with relevant ECHR right
Then relevant minister will react
Does a politician have to remedy the incompatibility?
No - but usually will
As a constitutional statute, does the HRA undermine PARL SOV?
No - can be undone by subsequent PARL
