Parliamentary sovereignty Flashcards
What is the theory of parliamentary sovereignty?
Parliament has the right to make or unmake any law whatsoever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
What are the three basic rules of parliamentary sovereignty?
-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
What is express repeal?
Express repeal occurs when legislation is passed that specifically states an intention that an earlier Act should be replaced eg Equality Act 2010 consolidated previous acts such as Sex Discrimination Act 1975 and Race Relations Act 1976.
What is implied repeal?
Implied repeal occurs when a new Act is partially or wholly inconsistent with a previous Act and the previous Act is therefore repealed to the extent of the inconsistency.
When will the Courts draw the implication that Parliament intended to repeal an earlier statute?
The Courts will only draw the implication that Parliament intended to repeal an earlier statute where two statutes are irreconcilable.
What is entrenchment by manner and form?
Manner and form entrenchment is a method of entrenching constitutional principles by requiring more stringent procedures to pass legislation that would overturn them. For example, a constitution might require a two-thirds vote in the legislature or a referendum to amend it.
What is the Court’s attitude towards ouster clauses in legislation?
Court’s attitude towards these clauses is hostile, and they are deemed to offend the rule of law.
The UK is a dualist state. What does this mean?
It means there is a distinction between two sources of law, namely domestic law and international law.
How did Parliament incorporate external EU law into the UK legal system?
By passing a statute to that effect e.g. European Communities Act 1972 which incorporated the Treaty of Rome 1957 into domestic law.
What did S2(1) ECA 1972 provide for in relation to EU law in the UK?
Section 2(1) gave effect to EU law within the UK, by providing that all rights, powers, liabilities, obligations and restrictions are without further enactment to be given legal effect or used in the UK.
What did S3(1) ECA 1972 provide for in relation to questions of law relating to the EU?
Section 3(1) provide that questions of law relating to the EU should be determined according to the principles laid down by the ECJ.
What was the most significant principle of the ECA 1972?
The supremacy of EU law over domestic law, known as the primacy of EU law. This was seen in Costa v E.N.E.L (1964) which stipulated in the event EU law/nation law conflicts, EU law must prevail.
What did the Human Rights Act (HRA) 1998 do?
It incorporated the European Convention on Human Rights into UK domestic law. This again shows the UK’s dualist system, a body of international law has to be brought within the domestic system by the passing of statute.
What does S2 HRA 1998 require and what is the relevant principle known as?
That any Court or tribunal determining a question which has arisen in connection with a Convention must take into account the jurisprudence of the ECHR so far as it is relevant to the proceedings in which the question has arisen.
The ‘mirror principle’-the duty of national Courts is to keep pace with the Strasbourg jurisprudence as it evolves over time.
What does S3 HRA 1998 state?
That 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.
