Parliamentary Sovereignty Flashcards
Professor Bogdanor’s quote
Parliamentary sovereignty can be summed up in 8 words ‘what the Queen in Parliament enacts, is law’
Dicey’s 3 rules of PS
- Parliament is the supreme law making body
- No parliament can be bound (either procedurally or substantively)
- No person may question the validity of an act (in manner or substance)
Right Brought Home 1997
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’
Lord Denning’s quote in Bulmer v Bollinger
‘Incoming tide of EU law’
Sir Leslie Stephens
Parliament is so supreme that legally it could pass an act ordering the death of all blue eyed babies
Mortensen v Peters
Parliament is not bound by geography
Burmah Oil
Parliament can legislate retrospectively
Vauxhall Estates C/F Ellen St Estates
Later act repealed earlier act regarding compensation
MP in 1621
‘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’
AG for NSW v Trethowan
Australian parliament bound itself as to procedure, UK parliament cannot bind itself as it is supreme. Australian parliament is a delegate body so can
Edinburgh & Dalkeith v Wauchope
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.
Pickin v BRB
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
Cheney v Conn
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
Ex P Cannon Selwyn
Challenged an act on the basis of disestablishment of the church. Rejected as you cannot challenge the substantive content of an act of parliament
When was the Glorious revolution?
1688
S2(4) ECA 1972
Any act passed shall have effect subject to EU law. Judiciary given power to review acts to see if compatible with EU law
Factortame in relation to implied repeal
Implied repeal does not apply to EU law, however can be expressly repealed, or the ECA repealed itself
Lord Steyn in Jackson
‘the supremacy of Parliament is still the general principle of our constitution’
R v A
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
Gibson v Lord Advocat
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
Munro
Argument for acts of union challenging parliamentary sovereignty is difficult to sustain
S28(7) Scotland Act
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
British Coal Corporation v The King
PS not challenged by acts of independence as all acts are acts of parliament so could be repealed. However this would be politically impossible
Blackburn v AG
Denning ‘legal theory must give way to political realities’ - Whilst parliament could repeal acts of union, politically this would never happen
‘Constitutional moment’
Lord Bingham
Neuberger’s view of Jackson
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
Lady Hale - Jackson Obiter
- 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
Green v Mortimer
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
Prisoner’s voting rights
- 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.
Bingham’s view of ECA and HRA
Not serious challenges to PS as could be revoked by an act of parliament
Lord Hope in Jackson
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.
McCarthy’s v Smith
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
MP in 1621
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’
Lord Chief Justice 1846
‘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.
