Parliamentary Sovereignty Flashcards
Dicey’s theory
- Parliament is the supreme law-making body
- No Parliament may be bound by a predecessor or may bind a successor
- No person or body may question the validity of an Act of Parliament
Are there limitations to what laws parliament can pass?
No. Parliament can legislate contrary to fundamental principles of human rights and pass statutes that conflict with public international law.
Can legislate beyond UK even if it conflicts with international law.
Not bound by predecessor and can’t bind a successor.
What is express repeal of legislation?
Express occurs when legislation is passed that specifically states an intention that an earlier Act should be replaced.
Usually happens when there is a drive to consolidate and simplify legislation.
What is an implied repeal of legislation?
Occurs if a new Act is partially or wholly inconsistent with a previous act, if so the previous Act is repealed to the extent of the inconsistency.
Courts will only draw the implication that Parliament intended to repeal an earlier statute where two situations are irreconcilable.
What is the enrolled bill rule?
Means that if a bill has become an Act of Parliament is is impossible to go behind that. Any departure from the normal procedure during the passage of the bill cannot be corrected by the courts
What is entrenchment by manner and form?
The introduction of procedural requirements to make it harder for subsequent Parliaments to change the law e.g. requiring prior popular approval for repeal in a referendum or an enhances “super-majority” in Parliament.
- Seems to only apply to subordinate legislatures such as devolved assemblies
Is Parliament ever bound?
It has imposed limitations on itself, e.g. HRA but these are only for as long as subsequent Parliaments wish them to be so.
What is meant by the UK is a dualist state?
Means that there is a distinction between domestic and international law.
Domestic law has a higher status in the UK legal system because this is created by the sovereign Parliament.
Parliament therefore needs to incorporate this external law into the UK legal system by passing a statute to that effect for it to be enforced.
E.g. treaties have no direct effect in English law until it is incorporated into domestic law.
What if EU law conflicts with UK law?
EU law prevails - courts enforced principles of EU law over domestic statutes.
Therefore it is clear Parliament can impose limits on itself but it cannot prevent future parliaments removing those limitations.
Section 2 of the HRA
Requires any court or tribunal determining a question which has arisen in connection with a Convention right must take into account the jurisprudence of the European Court of Human Rights (in Strasbourg) so far as it is relevant to proceedings.
But does not have to follow ALL proceedings
What is the mirror principle?
The duty of the national courts to keep pace with the Strasbourg jurisprudence as it evolved over time: no more, but certainly no less.
Courts have moved away from this.
Section 3 HRA
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights.
This is only appropriate where the interpretation does not ‘go against the grain’ of the underlying policy and scheme.
Section 4 HRA
If the court is satisfied that a provision is incompatible with a Convention Right is may make a declaration of incompatibility.
Note: this has a political effect not a legal one.
Kind of like an indirect form of constitutional review.
Can constitutional statutes be impliedly repealed?
No.
Means HRA is a little more securely in place than other statutes.
What would be the best way for a backbench MP to question government policy to subject it to scrutiny?
By seeking referral to a Select Committee
