Parliamentary Sovereignty lecture notes Flashcards
Three meanings of the positive aspect of Parl Sov from Dicey
- There is no law that Parliament cannot change (there is, therefore, no concept of entrenchment in UK constitutional law):
- There is therefore no distinction between “constitutional” and other laws on the traditional account (the constitution is therefore synonymous with, and a result of, the ordinary law of the land);
- An enactment of Parliament cannot be pronounced void on the grounds that it conflicts with any principles of the constitution.
Lord Neuberger. ‘Who are the masters now?’ extra judicial speech
- Parliament is still the master and Parl Sov retains much currency in the UK
- If Parliament ever acted so heinously as to warrant an invalidation from the UK courts, the UK courts will still have to apply the law all the same
Dean of Ely v Bliss judgment
“Every Act is made either for the purpose of making a change to the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment”
Smith Commission for further devolution of powers to the Scottish Parliament
Para.21: “UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions.”
Para.22: “The Sewel Convention will be put on a statutory footing.”
They want to resign some of Parliament’s power to the devolved legislature of Scotland.
ex p Brind
Asserts the assumption that Parliament will legislate compatibly with the state’s obligations in international law.
Hoffman in Simms
Declared dicta that ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights … But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.’ Nonetheless ambiguous or general language cannot remove those rights.
BH v Lord Advocate
Confirmed the ruling in Thoburn to the extent that the Scotland Act “… because of the fundamental constitutional nature of the settlement that was achieved… in itself must be held to render it incapable of being altered otherwise than by an express enactment.”
HS2
‘The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689 , the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation
Sec of State v AF (No 3)
‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’ (Lord Rodger).
Laws LJ in Thoburn re the ECA 72
Laws LJ denied that Parliament had, or could, bind itself. Any restriction placed on Parliament, requiring it to use express words, was imposed by the common law (rather than by Parliament itself):
‘Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty.’
