Parliamentary sovereignty Flashcards
What is the concept of parliamentary sovereignty?
Parliamentary sovereignty is the theory that Acts of Parliament are the highest form of law, and neither the manner in which legislation is passed nor the substance of the law should be reviewable by the courts. It asserts that law created by Parliament is supreme and cannot be overridden or set aside by any other body or person.
How did the doctrine of implied repeal interact with the ECA 1972?
The doctrine of implied repeal operated to ensure that any pre-1972 statutes incompatible with EU law would be overridden by the ECA 1972 itself, satisfying both the demands of EU law and parliamentary sovereignty.
Why can’t the UK courts quash or invalidate primary legislation?
According to Dicey’s theory of parliamentary sovereignty, the UK courts are not able to quash or invalidate primary legislation, even if it might be deemed ‘unconstitutional’ or contrary to international law standards. This is because Acts of Parliament are considered the highest form of law, and the courts do not have the authority to review or question the substance or manner in which legislation is passed.
What is the Human Rights Act 1998 and how does it impact the doctrine of parliamentary sovereignty?
The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK domestic law. It requires courts to take into account ECHR jurisprudence, which has caused tension in relation to traditional Diceyan theory. The Act has a higher status than an ‘ordinary’ statute and has implications for the supremacy of Parliament
How does the Human Rights Act 1998 incorporate the European Convention on Human Rights (ECHR) into UK domestic law?
The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK domestic law by passing a statute. This demonstrates how international law is brought within the domestic system.
What is the Enrolled Bill rule and how does it affect the validity of an Act of Parliament?
The Enrolled Bill rule, historically applied by the courts, means that once a bill has been enrolled and becomes an Act of Parliament, it is impossible to go behind it. Any departure from normal procedure during the passage of the bill cannot be corrected by the courts. This rule reinforces the idea that once an Act of Parliament is passed, it has finality unless and until it is amended or repealed by Parliament.
How did the courts resolve conflicts between EU law and UK statutes enacted after 1972?
In cases such as Macarthys Ltd v Smith [1979] All ER 325, the UK courts resolved conflicts by accepting that EU law would take precedence over the relevant statute if it proved to be inconsistent. The courts applied a presumption that Parliament intended to comply with EU law when passing legislation.
What are the three basic rules encompassed by Dicey’s theory of parliamentary sovereignty?
The three basic rules encompassed by Dicey’s theory of parliamentary sovereignty are: 1) Parliament is the supreme law-making body, 2) No Parliament may be bound by a predecessor or may bind a successor, and 3) No person or body may question the validity of an Act of Parliament.
What is the ‘mirror principle’ in relation to the Human Rights Act 1998?
In the early days of the Human Rights Act 1998, UK courts took the ‘mirror principle’ approach, which required them to keep pace with the evolving jurisprudence of the European Court of Human Rights. This principle aimed to maintain and promote ECHR rights.
What was the impact of the Factortame case on the relationship between EU law and UK statutes?
The Factortame case, which involved a dispute over the application of restrictive provisions in the Merchant Shipping Act 1988, established that EU law could override or ‘disapply’ conflicting UK statutes enacted after 1972. This case had a significant impact on UK constitutional law.
What is the significance of implied repeal in relation to parliamentary sovereignty?
Implied repeal is a key feature of Dicey’s theory on sovereignty. It occurs when a new Act of Parliament is partially or wholly inconsistent with a previous Act, leading to the repeal of the previous Act to the extent of the inconsistency. This reflects the traditional view that each new Parliament should have equal freedom to create new legislation and that no Parliament can bind its successors.
Can Parliament pass laws that conflict with public international law?
Yes, it is possible for Parliament to pass statutes that conflict with public international law. The principle of parliamentary sovereignty means that Parliament can legislate contrary to fundamental principles of human rights, subject to certain provisos.
How has the interpretation of the Human Rights Act 1998 evolved over time?
In more recent years, UK courts have been bolder in arguing for a development of the law that preserves the autonomy of English law. They have emphasized the need for a ‘dialogue’ between UK courts and the European Court of Human Rights, where each court can learn from the other in maintaining and promoting ECHR rights.
How did the Factortame case challenge the traditional view of parliamentary sovereignty?
The Factortame case challenged the traditional view of parliamentary sovereignty by allowing the courts to suspend an Act of Parliament if required by EU law. This caused political consternation at the time, but Lord Bridge argued that the principle of the supremacy of EU law was well established and that Parliament had voluntarily accepted limitations on its own sovereignty through the ECA 1972.
What is the purpose of Section 3 of the Human Rights Act 1998?
Section 3 of the Human Rights Act 1998 requires that primary and subordinate legislation be read and given effect in a way that is compatible with convention rights. It applies a strong obligation on UK courts to interpret existing legislation in an ECHR-compatible way.
