Parliamentary sovereignty Flashcards
1
Q
Traditional view - Dicey
A
- There are no legal limits to what Parliament can do. The legal sovereignty of Parliament was regarded by Dicey as the founding principle of the constitution.
- The right to make or unmake any law whatever.
- No higher institution
- In the words of Dicey: it is the “very keystone of the constitution”
2
Q
Traditional view - Wade
A
- It is impossible for Parliament to entrench legislation. He argues that the doctrines of express and implied repeal admit not exceptions.
- Parliament has a “continuing sovereignty”.
- Only a revolution (gradual change or sudden political convulsion) would cause any chain in this ultimate legal principle.
- On the Trethowan case: Wade argued that this was an example of the ultra vires doctrine under the Constitutional Law Validity Act. New South Wales was never sovereign.
3
Q
Traditional view - in the courts
A
- Ellen Streets: s7(1) of the Acquisition of Land Act 1919 appeared to entrench any further Acts on the matter. The court held that the Housing Act 1925 overrode those provision: the court refused to allow Parliament to entrench itself.
4
Q
Traditional view - accurate?
A
- Jackson: the HL accepted that the PL 1911 altered the legislative process. This disproves Wade.
- Baroness Hale and Lord Steyn stated, obiter, that there were limits to Parliamentary sovereignty.
5
Q
Traditional view - desirability
A
- Goldsworthy: legislative authority rests on something greater than judicial acquiescence.
6
Q
New view - Jennings
A
- Jennings: Parliament can bind itself in manner and form of the subsequent legislation.
- Jennings relied on the decision of the Privy Council in Trethowan - in which legislature of New South Wales was held to be bound by a self-imposed manner and form requirement.
7
Q
New view - in the courts
A
- Ranasinghe: Ceylon legislature only allowed to legislate contrary to the constitution with a 2/3 majority.
- Harris: Cape Town - “coloured voters”.
- Jackson: obiter comments suggested that there are limits to Parliamentary sovereignty.
- Factortame (no.2) - see ECA effect section.
- Thoburn - not Laws LJ’s analysis that “constitutional” statutes are immune from implied repeal.
- HS2 - where the SC endorsed Thoburn and suggested an extension of hierarchy within constitutional statutes.
8
Q
New view - desirability
A
- legally: prevents important rights from being accidentally removed or removed by stealth.
- politically: forces Parliament to face the political cost of its actions.
9
Q
HRA and ECHR
A
- s4 declaration of incompatibility: Smith v ERO (prisoner voting rights). Impact of s4 is political.
- s3: according to Marshall, s3 is “damaging to the legislative authority of Parliament”. But interpretation not beyond what is possible: Anderson.
- s6(3)(b): Parliament excluded from duty to act in accordance with HRA. Note however, the international restrictions of Parliamentary sovereignty.
10
Q
Bipolar sovereignty
A
- accords sovereignty to the courts and to Parliament (Sedley LJ)
- however, it is a paradox.
- it is nonetheless true to the old British constitutional belief of the Crown in Parliament and the Crown in Courts.
11
Q
ECA 1972 - what is the primacy of community law?
A
- Within the community legal order, the CJEU states that EU law take priority over national law.
12
Q
ECA 1972 - in the courts
A
- Costa v ENEL: declared the supremacy of community/EU law over inconsistent domestic law introduced after accession. s2(4) intends that any enactment is to be construed and have effect subject to EU law - it attempts to entrench this.
- Macarthys v Smith: unequal pay. Obiter, Lord Denning suggested that Parliament could be taken to have impliedly intended to comply.
- Factortame: Spanish ship-owners; the disapplication of the Shipping Act 1988. Wade perceives this as a “revolution”. On the new view, Parliamentary sovereignty is not undermined.
13
Q
ECA 1972 - academics
A
- Barber: Parliamentary sovereignty “ceased to be a feature of the UK’s constitution”.
- Birkenshaw and Varney: “our European experience has made us think differently about the constitution and legality”.
- Jowell: “to maintain that the couts today always lack the authority to invalidate any law overlooks their authority and duty in a common law system.”
14
Q
Devolution
A
- has placed considerable limits on the political limits of Parliamentary sovereignty
- Scotland Act 2016 and Wales Act 2017 - legal effect to Conventions? However, resounding no from Miller.
- Elliott: “a political token in a legislative garb”. Note the referendum requirement - if applied this would not undermine the sovereignty of Parliament as long as the new view were endorsed.
