Parliamentary supremacy Flashcards
Case that tells us constitutional statutes cannot be impliedly repealed
Thornburn v Sunderland city council. Talking about the 1972 act.
How can judicial review strike down legislation?
If it contradicts to the rule of law or constitutional principles. Can only be met by express words.
Tell me about the binding problem
If parliament can make any laws and is completely sovereign then it could say that all future parliaments need to respect the bill of rights. And that any bills enacted in breach of it would be invalid? Therefore creating a paradox. Could parliament limit its own powers and entrench legislation?
Why can parliament not bind itself?
Courts are constitutionally required to give effect to the most recent legislation enacted by parliament by either express repeal or implied repeal. If an act says “this cannot be repealed” then it can still be repealed as this has no legal effect. Even if it needs a 3/4 repeal in House of Commons. Showing that all acts are equal.
Can parliament take away the judiciary?
No as this is in breach of the rule of law.
The new view
Although parliament cannot entrench legislation it can impose conditions that must be fulfilled before legislation can be repealed or departed from.
2nd view
Although they are prepaired to refuse an act, they haven’t yet faced an act of parliament that is so repugnant to fundamental principles.
3rd view
Judges hide their refusal in interpretation of the act e.g the interpretation is so far from what the legislation is trying to say. No way of identifying what parliaments limits are even if there are some.
All acts of Parliament must?
Must follow the rule of law
Explain why neither judges want to conflict with parliament and vice versa
Judges don’t want pre-appointment hearings before parliament to investigate the moral and political views of individual judges and government does not want a written constitution which they have to entrench and abide by constitutional review.
Show the significance of R(Evans v Attorney General )
Ordered the government to disclose prince Charles advocacy. In response the government ordered a veto under s53of the act but then veto was challenged by judicial review and summarised that government had acted unlawfully. Willing to push statutory interpretation so far to ensure fundamental constitutional values can be overcome only by the clearest of statutory language.
Tell me about the 3 models
Model 1 parliament is completely sovereign
Model 2 parliament may be able to put in place binding conditions to repeal legislation.
Model 3 parliament is not sovereign as they cannot make laws that violate fundamental constitutional principles.
Plan for exam
In theory Parliament is completely sovereign.
Binding paradox everyone needs to respect the bill of rights and any legislation contrary is invalid.
Courts are constitutionally required to give effect to most recent act of parliament implied repeal and express.
“This act may not be repealed”even if 3/4 to repeal
New view
Why courts never refuse to apply acts of Parliament
Parliament is reluctant to place courts in a position where they have to choose between application of an act that is contrary to fundamental principles and enforcing principles notwithstanding the existence of such legislation
Removing judicial review consequences
European communities act 1972 eu law should take priority over uk law
Rule of recognition says that in order for a law to be valid it needs to be approved by the House of Lords. Parliaments act says that the House of Commons can pass a law that concerns a money bill without the approval of the lords and also if the House of Lords rejects a non money bill for 2 consecutive parliamentary years the bill may be enacted nevertheless. So lords have a 1 year delay.
An exception would be if it extends the maximum duration of parliament beyond 5 years. How can something be law if the rule of recognition says that to enact a law you need the House of Lords permission? Legislation enacted under the parliaments act isn’t really an act of Parliament. Hunting act was invalid as it was enacted under the 1911-49 act which is also invalid as it was passed without permission of House of Lords which goes against the rule of recognition. Had parliament amended the rule of recognition? Yes. House of Lords assent is needed unless parliament act 1911-49applies. Therefore parliament just made it easier to enact law so could they do the opposite and make it harder to enact law? Therefore hunting act was valid
New view - yeas they can entrench future legislation.
Jepson v attorney general.
Gough v uk
the case that shows the separation of powers
R v Cambridge health authority
whos theory was it that said the 1911-49 act is invalid and talked about the Jepson case?
wade ‘the basis of legal sovereignty’
