Parliamentary Sovereignty

Question 1

British Railway Boards v Pickin, Lord Simon

Answer 1

“The courts in this country have no power to declare enacted law to be invalid.”

Question 2

Lord Nicholls, Jackson

Answer 2

the court cannot investigate the lawfulness of Parliamentary legislation, but it can engage in statutory interpretation

Question 3

Lord Hoffmann, Bancoult

Answer 3

“The principle of the sovereignty of Parliament, as it has been developed by the courts over the past 350 years, is founded upon the unique authority Parliament derives from its representative character.”

Question 4

Is Parliament subordinate to the electoral will?

Eg, analysis, case.

Answer 4

Those who argue that the Asylum and Immigration Act 2004 debacle shows Parliament is not sovereign misrepresent concession as surrender. Lord Reid, Madzimbamuto. At most it can be said that Parliament recognises conventions limiting its legislative competence but conventions depend on the acquiescence of those they bind for their normative force.

Question 5

Two quotes that the new view is wrong?

Answer 5

o Maugham LJ, Ellen Street Estates – “The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation.”
o Lord Hope, Jackson – “It is impossible for Parliament to enact something which a subsequent statute dealing with the same subject matter cannot repeal.”

Question 6

Two quotes in support of the new view?

Answer 6

o Baroness Hale, Jackson – If Parliament could “redefine itself downwards” by enacting the 1911/49 Acts, it stands to reason they can “redefine themselves upwards”
o Lord Steyn, Jackson – “Parliament could for specific purposes provide for a 2/3 majority in the HoC and the HoL…such redefinition could not be disregarded.”

Question 7

So is PS self-embracing or continuing?

Answer 7

Bearing in mind there has been no conclusive judgment on the matter, Allan’s view is to be preferred - there is no fundamental rule on whether PS is “self-embracing” or “continuing”. Allan goes on to argue, rather more controversially, that it is for the judges to decide, in the contemporary context, which view is to be applied

Question 8

Is there constitutional legislation?

Answer 8

Laws in Thoburn - constitutional statutes may not be impliedly repealed.

Elliott - this creates a hierarchy of norms.

Feldman - Laws’ test is under and overinclusive, endorses HoL Select Committee’s test.

Question 9

Weapon of Stat interpretation, three examples -

Answer 9

Anisminic, Presumption of fundamental rights/rule of law(Simms/Pierson), Jackson was essentially reviewing the validity of AoP

Question 10

What are the three ways of explaining Factortame?

Answer 10

1. Voluntary limit (Bridge, Laws, Allan says this is sound legal theory)
2. Revolution (Wade)
3. Court deciding what present constitutional order required and modified the common law rule that is PS accordingly

Question 11

Criticise the ways of explaining Factortame.

Answer 11

1. Voluntary limit (Wade/Elliott - out of touch with political reality)
2. Revolution - It is preferable to treat courts as operating within the parameters of the constitution (Elliott)/PS is a common law rule and subject to qualification by the courts based on the demands of the existing constitutional order (Allan)

Question 12

Examples that constitution is shifting towards one based on RoL?

Answer 12

1. Simms presumption/Pierson presumption - engages political constitutionalism
2. Expanding JR standards

Question 13

Lord Hope mutual respect quote, Jackson

Answer 13

PS results “from a delicate balance between the institutions…maintained to a large degree by the mutual respect which each institution has for the other.”

Question 14

Lord Reid in Pickin mutual respect quote

Answer 14

“P and the courts have been careful to act so as not to cause conflict between them”, endorsed by Lord Hope as “as much a prescription for the future as it was for the past”