Parliamentary Sovereignty

Question 1

What is a parliamentary sovereignty?

Answer 1

A constitutional principle
-people often disagree about how to define a constitutional principle, about how to define a constitutional principle, about the relationship between different principles, and about the relative importance of different principles

Question 2

What does Parliamentary sovereignty mean?

Answer 2

• the UK Parliament enjoys legally unlimited law-making capacity i.e. there are no legal limits on its authority to enraptured an act of Parliament
  1) it refers to the legally unlimited law making capacity of the UK Parliament at west minister
  2) it refers to primary legislation only
  3) no exact clarity about its formal source but many lawyers and judges view parliamentary sovereifnry as a judge made rule of the common law

Question 3

Why is parliamentary sovereignty important?

Answer 3

• Uk Parliament as the supreme legal authority in the il with the final say over the content of law
• there might not be legal limits on the In parliaments law making capacity, but there are non- legal limits
• there is a difference between the legal theory and political reality of parliamentary sovereignty
• parliamentary sovereignty arguably gives e press ion to democratic principle
• traditionally, parliamentary sovereignty has been Zia’s to be the most important principle I. The UK consititution

Question 4

Even though the notion of “sovereignty” is ambiguous, what could it mean?

Answer 4

• sovereignty could mean that parliament can do anything it wishes including limiting its own powers
• or it could mean that parliament can do anything it wishes except limiting its own powers

Question 5

What does it mean to entrench legislation?

Answer 5

• to entrench legislation is do do something that makes amending or repealing legislation more difficult
• entrenchment affords a degree of protection for the entrenched legsitlation
• entrenchment is a restriction on the way that Parliament can operate

Question 6

Is entrenchment possible according to the traditional view of parliamentary sovereignty?

Answer 6

• No, entrenchment is not possible according to the traditional view
• according to the traditional view, a court would not give effect to a provision purporting to entrench legislation
• the traditional view is one of ‘continuing sovereignty’

Question 7

What is the express repeal view of parliamentary sovereignty?

Answer 7

-when in an Act of parliament, parliament explicitly states that some or all of an earlier inconsistent statute is to be repealed and cease to have any effect

—> s1 of the EU (Withdrawal) Act 2018 expressly repeals the European communities act 1972

Question 8

What is the implied repeal view of parliamentary sovereignty?

Answer 8

• where there is an inconsistency between two statutes, but where parliament failed to explicitly state in the later statute that the earlier inconsistent statute was to be repealed
• ## courts will apply the most recent statute and treat inconsistent provisions of the earlier statute as impliedly repealed

Question 9

Ellen street estates v minister of health 1934

Answer 9

—

Question 10

Vauxhall estates. Liverpool corporation 1932

Answer 10

• read case

Question 11

Is entrenchment possible according to the “new view” of parliamentary sovereignty?

Answer 11

• the new view is associated with Ivor Jenning, RVF Houston and Geoffrey Amrshall and more recently Mike Gordon
• under the new view, entrenchment is possible as to the manner and form in which legislation in enacted

Question 12

Is the traditional view or new view correct as a matter of law?

Answer 12

• parliament has legislated in ways that suggest it believes that it can entrench legislations
• However until recently it was clear that as a matter of law, the traditional view was correct

Question 13

Jackson v attorney general 2005

Answer 13

• the orbiter dicta in this case suggests some senior judges now accept the new view that parliament can entrench the way in which h future legislation is enacted

Question 14

What was the key legal background to the UK’s membership of the EU?

Answer 14

• In early 1970s UK joined the European Economic community, which later became the European community and then the European Union
• the EEC was a treaty based legal system
• by that point the EEC has already has already established for 15 year or so (Treaty of Rome 1957)

Question 15

Why and what does it mean to say that the UK is a dualist legal system?

Answer 15

• Which means international law and domestic law exist separately. They are different and independent. international law by itself Is nor directly enforceable domestically
• to take effect domestically, international law must first be incorporated by national legislation

Question 16

Describe the legal effects of the European communities act 1972?

Answer 16

• provided legal authority via s2(1) for EU law to have effect in domestic law
• provided via s2(4) EU law to prevail over inconsistent national law

Question 17

What is EU legal supremacy and can it be reconciled with parliamentary sovereignty?

Answer 17

• EU legal supremacy mean EU law overrides an inconsistent national law
• EU legal supremacy was not set out in the Treaty or Rome 1957, but rather was articulated by the European court of justice in a series of cases in the 1960s

Question 18

Costa v ENEL (1964)

Answer 18

-read case

Question 19

Factortame (No2) [1990] UKHL 7

Answer 19

• inconsistent between provisions of EU law on the one hand and the provisions of the merchant shipping act 1988 on the other

Question 20

Madzimbamuto v Lardner- Burke (1969) per Lord Reid

Answer 20

• the rule of juridical obedience means that judges will obey statutes of the UK parliament by giving effect to them in their judicial decisions and will do so no matter the content of the statutes

Question 21

What does it mean to suggest that parliamentary sovereignty is a rule of judicial obedience?

Answer 21

• parliamentary sovereignty as a judge made rule of the common law
• Parliamentary sovereignty is “a construct of the common law. The judges created this principle”

Question 22

Is the rule of judicial obedience changing such that in some circumstances courts might no longer need to apply Acts of Parliament?

Answer 22

• some judges and lawyers argue that parliaments law making power is legally limited and subject to judicial control, such that in extreme circumstances the courts could deny legal effect to an act of Parliament
• proponents of this view includes academics such as TRS Allan and senior judges such as Lord Woolf
• for the judges and lawyers, there are fundamental values int he uk that are so important

Question 23

Jackson v Attorney General [2005] UKHL 56

Answer 23

Lord Styen suggested the traditional view of parliamentary sovereignty was “one of place in the modern UK”, and Lord hope suggested that the “rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based

Question 24

What is meant by cases on outer clauses?

Answer 24

• i.e. provisions in an Act of parliament seeks that to oust the jurisdiction of the courts, for example by excluding the judicial review of the decision of certain public bodies

Question 25

Anisminc [1969]2 AC 147

Answer 25

• read case

Question 26

Privacy International [2019] UKSC 22

Answer 26

• read case

Question 27

Evans v attorney general [2015] UKSC 21

Answer 27

• read case

Question 28

Section 53 Freedom of International Act

Answer 28

• the Supreme Court adopted such a narrow and strained interpretation of s53 which arguably left the veto almost impossible to exercise. To be clear, the court did not deny legal effect to s53, it did not say that it was invalid, rather the court adopted such a narrow interpretation that it is difficult to see when ministers could use the veto conferred on them under s 53