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Constitutional & Admin Law – Academic > Parliamentary Sovereignty > Flashcards

Parliamentary Sovereignty Flashcards

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1
Q

What are the 3 basic rules of PARL SOV?

A
  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
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2
Q

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

A

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

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3
Q

What is express repeal?

A

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

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

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4
Q

What is implied repeal?

A

If a new Act is partially/wholly inconsistent with previous Act, the latter is repealed to the extent of the inconsistency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

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5
Q

How does implied repeal demonstrate PARL SOV?

A

PARL cannot bind successors to prevent a future statute from being impliedly repealed by later incompatible one

Sovereignty takes a continuing form

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6
Q

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

A

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

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7
Q

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

A
  • 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)
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8
Q

What is the Enrolled Act rule?

A

Once bill has become an Act of PARL, courts will not question:
1. the validity, or hold the Act to be void; or
2. Investigate any irregularities in procedure or fraud

There is finality when an enactment is passed

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9
Q

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

A

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 as in R (Jackson) v AG [2005]

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10
Q

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

A

Subordinate legislatures i.e. devolved assemblies in the UK

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11
Q

Is constitutional legislation binding?

I.e. limiting on itself as an institution?

A

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

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12
Q

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

A

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

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13
Q

Would a court recognise oppressive and wholly undemocratic legislation?

A

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

Obiter

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14
Q

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

A

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

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15
Q

What is the Diceyan theory of PARL SOV?

A

The legal authority of PARL is unlimited

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16
Q

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

A
  • Monist = domestic and international law obligations operate on same place
  • Dualist = there is a distinction between the two types of law (UK)
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17
Q

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

Out of domestic and international

A

Domestic - because it is created by PARL

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18
Q

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

A

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

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19
Q

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

A

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

Was modified several times after

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20
Q

What 3 key provisions in the ECA related to sovereignty?

A
  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
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21
Q

What happens when EU law and national law conflict?

According to the CJEU

A

EU law must prevail

Problem for PARL SOV!

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22
Q

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

A

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

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23
Q

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

A

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

Purposive approach

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24
Q

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?

A

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

So EU law could override conflicting UK statutes

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25
Q

How was the outcome of Factortame reconciled with PARL SOV?

A

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

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26
Q

What is meant by a ‘hierarchy of statutes’?

A

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

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27
Q

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

A

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

28
Q

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?

A

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)

29
Q

So can a PARL impose limitations on itself?

A

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

30
Q

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

A

No - devolution legislation stipulates that ultimate sovereignty resides in Westminster

31
Q

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

A

Legally yes, but political consequences would be huge

E.g. Scottish nationalist sentiment

So reversal of devolution would lead to constitutional crisis

32
Q

What was the effect of the Human Rights Act 1998?

A

Incorporated ECHR into UK domestic law

I.e. the ‘mirror principle’

33
Q

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

A

The jurisprudence of ECtHR if it is relevant to the proceedings

34
Q

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

A

Through dialogue between UK courts and ECHR

Each court learns from other best ways to promote ECHR rights

35
Q

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

A

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

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

36
Q

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

A

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

37
Q

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

Re constitutional v ordinary statutes

A

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

38
Q

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

A

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

39
Q

Does the declaration of incompatibility have a legal effect?

A

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

Then relevant minister will react

40
Q

Does a politician have to remedy the incompatibility?

A

No - but usually will

41
Q

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

A

No - can be undone by subsequent PARL

42
Q

What does parliament consist of?

A

House of Lords (unelected), House of Commons (elected) and the Monarch

43
Q

Which house prevails? Do Acts NEED to be passed by both Houses?

A

Usually approved by both HOC and HOL and then followed by Royal Assent –but not NECESSARY. House of Commons (as it is elected) prevails.

Parliament Acts Procedure allows HOC to be skipped (see other flashcard)

44
Q

What is the role of Parliament?

A
  1. Scrutinising work of Government
  2. Oassing legislation
  3. Debating key issues
  4. Approving funding
  5. Providing personnel for government
45
Q

Features of Houses? Is PM part of HOC or HOL?

How many ministerial office holders / hereditary peers are allowed?

A

HOC– Elected using first past the post system. Statute limits number of holders of ministerial office to 95

HOL - made up of ‘hereditary peers’ (people entitled to sit in HOL by virtue of their birth). This has been mostly abolished, but an Act allows 92 hereditary peers to remain.

PM is a member of HOC.

46
Q

How often must meeting of parliaments be called?

A

Under Meeting of Parliament Act, every 3 years – but by convention, parliament meets thorughout the year

47
Q

Is dissolution of Parliament a royal prerogative?

A

Yes. Dissolution of Parliament repealed Fixed-Term Parliament Act and once again allowed dissolution to be a royal prerogative.

48
Q

What is the maximum life of Parliament?

A

5 years

49
Q

What is the legislative process of Parliament?

A
  1. First reading (purely formal stage –title read out and bill printed)
  2. Second reading (main debate in HOC)
  3. Committee stage (bill reffered to general commitee containing 16-50 members with proportional representation of parties within the House. Important or uncontroversial bills go to Committee of Whole House)
  4. Third reading (consideration of bill as amended; only verbal amendments allowed and final opportunity to vote on bill)
  5. House of Lords (HOL can send bill back and forth between HOC with their comments)
  6. Royal Assent (only after this does bill become an Act of Parliament)
50
Q

If HOC disagrees with HOL amendments and restores original wording, does HOL need to accept it?

A

Yes

51
Q

When do HOL read the bill?

A

After the third reading by HOC

52
Q

Types of Public Bills

A
  1. Government bills – usually listed in Kings speech at start of parliamentary session
  2. Private member bills – small minority and usually introduced by HOL/MPs who are not government ministers
53
Q

Private Bills

A

Relate only to matters of individual, corporate or local interest and affect particular people / localities

54
Q

What is the Salisbury Convention?

A

HOL will not reject a bill giving effect to a major part of the democrativally elected government’s manifesto (but can make small amendments)

55
Q

If HOL rejects a bill that has passed in HOC, can it still become law?

A

Yes under the provisions of Parliament Acts 1911 and 1949

56
Q

What must the speaker certify under the Parliament Acts 1911 and 1949 when passing bills unapproved by HOL?

A
  1. Money bills (dealing with national tax) – can be sent for Royal assent one month after being sent to HOL
  2. Other public bils: **one year between second reading and third reading **at HOC
57
Q

R v Jackson

Its ok if you dont know this – minor point about 1949 Act’s validity

A

Held that 19949 Parliament Act was properly enacted

58
Q

Role of Parliament in delegated legislation

A

Confined to scrutiny of delegated legislation – Parliemant cannot:
1. Amend it; or
2. Vote on it (neither House)

59
Q

**

2 common parliamentary procedures stipulated by enabling/parent Act

A
  1. Affirmative resolution procedure: One/both House(s) must pass a resolution to approve it
  2. Negative resolution procedure: Government is required to ‘annul’ legislation only if either House rejects it within specified period (40 days after laid before Parliament usually)
60
Q

What powers of the Monarch did the Bill of Rights remove?

A
  1. Power to arbitrarily suspect Acts of Parliament
  2. Power to impose taxation without P’s consent
61
Q

Is there an exception to the Enrolled Act Rule as seen in R (Jackson) v AG?

A

No –courts reaffirmed the enrolled act principle but held tht HOL has the power to challenge the statutory interpretation of the Hunting Act.

HOL framed it as a matter of statutory interpretation rather than a direct challenge to the validity of an Act of Parliament.

R v Jackson – Challenge was brought against the Hunting Act 2004. The core argument was that the Parliament Act 1949, which was used to pass the Hunting Act, was itself invalid. The contention was that the Parliament Act 1911 could not be used to amend itself to create the 1949 Act.

62
Q

Examples of Parliament’s unlimited legislative competence

A
  1. Statute can override international law (domestic law prevails)
  2. Statute can override constitutional conventions
  3. Statute may aler the constitution
  4. Statute can operate retrospectively
  5. Statute can abolist or curtail aspects of royal prerogative

Burmah Oil– sought compensation for destruction of oil instlalations during WW2 and HOL agreed that Crown owed them money. however, Parliament then enacted War Damages Act which applied retrospectively and prevented right to compensation.

63
Q

Can Parliament pass legislation that breaches intl law?

A

fuck yea

64
Q

Limitation to implied repeal

A

Thoburn v Sunderland established there are 2 types of statute: ordinary and constitutional

Constitutional statute cannot be repealed by implied repeal – Parliament must expressly do so with actual intention

65
Q

What is the test for constitutional statute?

Thoburn v Sunderland

A

(a) Statute must condition the legal relationship between citizen and state in general manner; or
(b) Statute must change the scope of fundamental constitutional rights

66
Q

Limitation to PARL SOV - Henry VII Powers

A

Allows ministers rather than Parl to make/change law –> approached with caution

67
Q

Limitation to PARL SOV – Rule of Law

A

Parliament can be prevented from enacting legislation contrary to the ROL (eg: abolishing JR)

Constitutional & Admin Law – Academic (14 decks)

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