Parliamentary sovereignty after Brexit

Question 1

L Wilson’s question

Answer 1

1972 Act cannot be repealed by doctrine of implied repeal, so how can it be repealed by prerogative power?

Question 2

Explain Manner and Form

Answer 2

Tried to achieve both EU and UK law.
EU law cannot be implicitly displaced by enactive legislation inconsistent with it.
Thoburn v Sunderland CC: domestic legislation which is inconsistent with EU law can be ineffective

Question 3

Miller and Parliamentary sovereignty

Answer 3

Miller argues that UK withdrawal from the EU will alter the rule of recognition and therefore can only be effected by Parliamentary legislation.

Held: 1972 Act can be repealed like any other statute.

EU law is not itself an independent source of domestic law, but depends for its effect in domestic law.

Question 4

Return to the Orthodox view?

Answer 4

Miller: affirms orthodox nature of Parliamentary sovereignty

Hierarchy between constitutional regulation and ordinary legislation - goes against Orthodox view

Leaving EU is not the same as returning to Orthodox view as Parliament was never able to place limits on its successors before ECA 1972.

Thoburn: hierarchy of statutes - ECA can only be expressly repealed.

Question 5

How do we identify a constitutional statute?

Answer 5

Per Laws LJ:

1. Conditions the legal relationship between citizen and state in some general, overarching manner, or
2. Enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.