Parliamentary Sovereignty

Question 1

Professor Bogdanor’s quote

Answer 1

Parliamentary sovereignty can be summed up in 8 words ‘what the Queen in Parliament enacts, is law’

Question 2

Dicey’s 3 rules of PS

Answer 2

1. Parliament is the supreme law making body
2. No parliament can be bound (either procedurally or substantively)
3. No person may question the validity of an act (in manner or substance)

Question 3

Right Brought Home 1997

Answer 3

Speech regarding HRA -‘courts should not have the power to set aside primary legislation’ ‘parliament is competent to make any law on any matter of its choosing and no-one may question the validity of any act it passes’

Question 4

Lord Denning’s quote in Bulmer v Bollinger

Answer 4

‘Incoming tide of EU law’

Question 5

Sir Leslie Stephens

Answer 5

Parliament is so supreme that legally it could pass an act ordering the death of all blue eyed babies

Question 6

Mortensen v Peters

Answer 6

Parliament is not bound by geography

Question 7

Burmah Oil

Answer 7

Parliament can legislate retrospectively

Question 8

Vauxhall Estates C/F Ellen St Estates

Answer 8

Later act repealed earlier act regarding compensation

Question 9

MP in 1621

Answer 9

‘The judges are the judges of the law, not of parliament. God forbid the state of the kingdom should ever come under the sentence of a judge’

Question 10

AG for NSW v Trethowan

Answer 10

Australian parliament bound itself as to procedure, UK parliament cannot bind itself as it is supreme. Australian parliament is a delegate body so can

Question 11

Edinburgh & Dalkeith v Wauchope

Answer 11

This case tried to challenge an act on the basis it was not properly debated. Parliament rejected this challenge as the ability of the judiciary to question parliament extends only so far as to check whether the law has been passed. Cannot challenge the procedure which has been used to pass an act.

Question 12

Pickin v BRB

Answer 12

Enrolled bill rule. When an act is on the statute books it cannot be challenged. Only role of judiciary is to see if it is on the statute books

Question 13

Cheney v Conn

Answer 13

Challenged an act as the substantive content conflicted with a Geneva convention. Not permitted as you cannot challenge an act it is the highest form of law

Question 14

Ex P Cannon Selwyn

Answer 14

Challenged an act on the basis of disestablishment of the church. Rejected as you cannot challenge the substantive content of an act of parliament

Question 15

When was the Glorious revolution?

Answer 15

1688

Question 16

S2(4) ECA 1972

Answer 16

Any act passed shall have effect subject to EU law. Judiciary given power to review acts to see if compatible with EU law

Question 17

Factortame in relation to implied repeal

Answer 17

Implied repeal does not apply to EU law, however can be expressly repealed, or the ECA repealed itself

Question 18

Lord Steyn in Jackson

Answer 18

‘the supremacy of Parliament is still the general principle of our constitution’

Question 19

R v A

Answer 19

Parliament’s YJCEA was contrary to article 6, therefore interpreted to be compatible. Demonstrates that implied repeal does not function in relation to ECHR and that parliament cannot legislate contrary to ECHR

Question 20

Gibson v Lord Advocat

Answer 20

Argued that ECA could not be passed as infringed Acts of Union which was created by a parliament which no longer exists. Dicey gives Acts of Union no higher legal status. Bingham and Munro point out that acts of union have been changed in the past, and a technicality will not be held to bind parliament

Question 21

Munro

Answer 21

Argument for acts of union challenging parliamentary sovereignty is difficult to sustain

Question 22

S28(7) Scotland Act

Answer 22

State that parliaments power to legislate for Scotland will not be challenged by devolution. Only potential barrier to PS which devolution provides is that the act is largely politically entrenched

Question 23

British Coal Corporation v The King

Answer 23

PS not challenged by acts of independence as all acts are acts of parliament so could be repealed. However this would be politically impossible

Question 24

Blackburn v AG

Answer 24

Denning ‘legal theory must give way to political realities’ - Whilst parliament could repeal acts of union, politically this would never happen

Question 25

‘Constitutional moment’

Answer 25

Lord Bingham

Question 26

Neuberger’s view of Jackson

Answer 26

No challenge to PS as parliament conferred ability on parliament in S2 and S3 of the 1911 act to evaluate whether a subsequent act has been passed in accordance with the 1911 rules of the act

Question 27

Lady Hale - Jackson Obiter

Answer 27

• Jackson review represents a form of legislative scrutiny not freestanding power
• ‘Parliament has limited its own powers by the ECA 1972’ as parliament must only make law consistent with that act. Therefore the courts have the power to review whether law is made not using ‘free standing power’ but at the permission of parliament (S2(4) ECA 1972)
• If parliament can define itself down, thn it can define itself up, so could potentially entrench a procedure for passing legislation

Question 28

Green v Mortimer

Answer 28

section of a private act of parliament was not applied on the basis that it was impossible. This represents a challenge to PS in terms of P being supreme and no one challenging an act of parliament

Question 29

Prisoner’s voting rights

Answer 29

• Ongoing issue that prisoners have been denied voting rights contrary to ECHR. S4 verdict returned but Parliament wishes to ignore it. Grayling has as recently as 2013 asserted parliaments supremacy, but parliament is likely to have its hand forced by ECHR to at least granting some rights, so as to make this ruling NIDS. Cameron has said for prisoners to be given the vote makes him ‘physically sick’…wow.

Question 30

Bingham’s view of ECA and HRA

Answer 30

Not serious challenges to PS as could be revoked by an act of parliament

Question 31

Lord Hope in Jackson

Answer 31

HoL review of Jackson suggests increased move toward RoL as addition to PS. Also argues that PS never existed absolutely as Parliament has always conferred power on courts to review legislation, so to view Parliament as absolute is misguided, though they also granted this power to courts so can take it away.

Question 32

McCarthy’s v Smith

Answer 32

Denning observed that doctrine of implied repeal does not apply in relation to EC law, S2(4) obliges him to interpret according to EC law

Question 33

MP in 1621

Answer 33

The judges are the judges of the law, not of parliament. God forbid the state of the kingdom should ever come under the sentence of a judge’

Question 34

Lord Chief Justice 1846

Answer 34

‘The constitution has lodged the sacred deposit of sovereign authority in a chest locked by three different keys, confided to 3 different trustees’ It is now the case that the 3 keys are effectively held by one party, Parliament. Lord Hailsham describes this as ‘Elective dictatorship’ and could well bring us toward the constitutional conflict which Professor Bogdanor fears.