Parliamentary Sovereigty and The Rule of Law Flashcards
What was the early definition of Parliamentary Sovereignty - associated with the ‘Glorious Revolution of 1689’ - by John Locke?
‘In a constituted Commonwealth … there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate … In all cases, whiles the government subsists, the legislative is the supreme power. For what can given laws to another, must needs be superior to him. The legislative must needs be the supreme, and all other powers in any members or parts of the society, derived from and subordinate to it’.
Explain the principle of Parliamentary Sovereignty in accordance with Dicey’s view.
Dicey argued that the meaning of parliamentary sovereignty was: parliament is supreme; no parliament can be bound by its predecessor; and no one can question the validity of the law.
What are the three positive aspects of Parliamentary Sovereignty?
- Parliament has unlimited law-making power in the sense that it can make any kind of law (omnicompetence).
- All Acts of Parliament have the same legal value and are the highest source of law.
- Each Parliament is born free; a Parliament cannot bind its successors.
What is the negative aspect of Parliamentary Sovereignty?
No other body can question or refuse to follow the laws enacted by Parliament
What important principle came from Madzimbamuto v Lardner-Burke (1968)? Explain.
“It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid.”
What is law according to Bogdanor?
“What the Queen in Parliament enacts is law”
In MacCormick v Lord Advocate (1953), what was said about Parliamentary Sovereignty in Scotland by Lord Cooper?
“The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution.”
What is the argument by Scottish Nationalists over Parliamentary Sovereignty if Scotland became independent?
A key responsibility of the first parliament of an independent Scotland will be to put in place a written constitution to underpin the democratic gains of independence. A written constitution will be a significant step forward for an independent Scotland. It will replace the central principle of the UK constitution - the absolute sovereignty of the Westminster Parliament - with the sovereignty of the people of Scotland, which has been the central principle in the Scottish constitutional tradition.
Which laws are covered by Parliament?
Primary legislation
Which laws aren’t covered by Parliament? Why?
- ‘Resolutions’ of a House because ‘[T]he House of Commons is not the Parliament, but only a co-ordinate and component part of the Parliament. That sovereign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law, or place any one beyond its control.’ Stockdale v Hansard (1839).
- Secondary legislation - HM Treasury v Mohammed Ahmed (2010)
What was held in Edinburgh and Dalkeith Railway Co v Wauchope (1842)?
Irregularity in the conduct of parliamentary business is a matter for Parliament, not the courts. Lord Campbell said: ‘All that a Court of Justice can do is look to the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through both Houses.’
What was held in Pickin v British Railways Board (1974)?
“It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry the effect of the effectiveness of the internal procedures in the High Court of Parliament or an inquiry in any particular case those procedures were effectively followed”
“if there is evidence that Parliament may have been misled into an enactment, Parliament might well – indeed, would be likely to – wish to conduct its own inquiry. It would be unthinkable that two inquiries – one parliamentary and the other forensic – should proceed concurrently, conceivably arriving at different conclusions; and a parliamentary examination of parliamentary procedures and of the actions and understandings of officers of Parliament would seem to be clearly more satisfactory than one conducted in a court of law – quite apart from considerations of Parliamentary privilege.”
What was held in R (HS2 Action Alliance) v SoS for Transport (2014)?
“The argument presented on behalf of the appellants as to the implications of the EIA Directive, if well founded, impinges upon long-established constitutional principles governing the relationship between Parliament and the courts, as reflected for example in article 9 of the Bill of Rights 1689, in authorities concerned with judicial scrutiny of Parliamentary procedure, such as [Edinburgh and Dalkeith Railway Co v Wauchope, Pickin v British Railways Board …] , and in other cases concerned with judicial scrutiny of decisions whether to introduce a bill in Parliament, such as [Wheeler]. Neither the Bill of Rights nor any of the authorities I have mentioned was however referred to in the parties’ printed cases; nor was this issue mentioned before us until it was raised by the court’
What is express repeal?
Express repeal is when the words of a statute expressly repeal a previous statute.
What is implied repeal in accordance with the explanation given in Ellen Street Estates v MoH (1934)?
‘The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.’
“…. Parliament can alter an act previously passed, and it can do so by repealing the terms the previous Act … and it can do it also in another way – namely, by enacting a provision which is clearly inconsistent with the previous Act.”
What is a constitutional statute in accordance with Thoburn v Sunderland City Council (2002)? Give eight examples.
‘In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family.’
What is the difference between a constitutional and an ordinary statute? What is the test for repeal given in Thoburn v Sunderland City Council (2002)?
‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual not imputed, constructive or impugned, intention was to effect the repeal or abrogation. I think that the test could be met only by express words in the later statute, or by word so specific that the inference of an actual determination to effect the result contended for was irresistible.’
What did R (HS2 Action Alliance) SoS for Transport (2014) say about constitutional statutes?
“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.”
What does Jennings say in relation to Parliamentary Sovereignty?
‘If [the UK Parliament] enacts that smoking on the streets of Paris is an offence, then it is an offence’
Can a Parliament bind future Parliaments? Answer in relation to Case law and academic opinion.
Godden v Hales (1686): ‘If an act of parliament had a clause in it that it should never be repealed, yet without question, the same power that made it, may repeal it.’
Thomas Paine: ‘every age and generation must be as free to act for itself, in all cases as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.’
What is the manner and form argument?
That the Courts are only bound by Parliament if the law was enacted correctly.
Describe the R(Jackson) v Attorney General Case.
Facts: he 1949 Act should not have been passed as it did not fit the description given for bills to be passed until the 1911 Act. Therefore the 1949 Act and the 2004 Hunting Act are not valid.
The Jackson case suggests that there may be limits to parliamentary sovereignty – the courts may have the authority to strike down an Act of Parliament if it violates fundamental constitutional principles.
Lord Steyn: ‘Parliamentary sovereignty is no longer, if it ever was, absolute… it is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament… is being qualified… The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament’s legislative sovereignty.’ However, his comments could possibly have been limited to the Parliament Acts.
Lord Hope: ‘The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.’
Baroness Hale: ‘I do not, and I have no doubt your Lordships do not, have any wish to expand the role of the judiciary at the expense of any other organ of the State or to seek to frustrate the properly expressed wish of Parliament as contained in legislation. The attribution in certain quarters of such a wish to the judiciary is misconceived and appears to be the product of lack of understanding of the judicial function and the sources of law which the courts are bound to apply.’
