Parliamentary Supremacy

Question 1

AV Dicey on Parliamentary Supremacy

Answer 1

1. Parliament is supreme law-making body and can enact and repeal laws
2. No Parliament may be bound by a predecessor nor bind a successor
3. No other body may question validity of AOP

Question 2

Origins of PS

Answer 2

1. Common law doctrine developed by judges

2. 17th century struggle for supremacy between Crown and Parliament

Question 3

Argument of essay

Answer 3

1. Traditional view by Dicey prevents arguments that PS remains intact

However…

2. “Jackson” view = classic Dicey account is seen as out of place in UK
3. Doctrine of PS has been eroded so much that practically, Parliament is no longer supreme and can’t do what it pleases dye to domestic and EU limitations

Examples:

• ECA 1972
• HRA 1998
• Acts of Devolution

Question 4

For PS

Answer 4

1. Parliament’s unlimited legislative competence
2. Doctrine of Implied Repeal
3. Proceedings and AOP will not be invalidated by another body

Question 5

Parliaments unlimited legislative competence

Answer 5

Statute can

1. Alter constitution
   - Act of Settlement
   - ECA 1972
2. Override constitutional conventions
   - “Madzimbamuto v Lardner-Burke”
   - Fixed-term Parliaments Act
3. Alter/override Royal Prerogative
   - Crown Proceedings Act
   - Fire Brigades Union
4. Override International law
   “Cheney v Conn”
5. Operate retrospectively
   - War damage Act 1965

Question 6

Doctrine of implied repeal

Answer 6

1. Later statute will impliedly repeal an earlier one when content is inconsistent
   “Ellen street estates v minister of health”
2. Limits to implied repeal which constrains PS
   “Thoburn v Sunderland City Council”
   - Constitutional statutes may not be impliedly repealed

Question 7

Proceedings and Acts of Parliament will not be invalidated by another body

Answer 7

• Bill of Rights 1689, Enrolled Act Rule

However, PS has been retracted from shown in “Jackson”
- rule of law takes precedence over parliamentary supremacy

Question 8

Against PS

Answer 8

1. Manner and form debates
2. Domestic limitations
3. European limitations

Question 9

Manner and form debates

Answer 9

• Notion that Parliament cannot be bound by previous Parliament is increasingly less certain
  1. Legislating by a future Parliament can be made easier by Parliament Acts, so it must also be able to be made harder
  a) “Trethowan” - entrenchment is possible
  b) “Manuel” - courts may follow manner and form requirements imposed by earlier acts
  c) EU Act 2011

Question 10

Domestic limitations

Answer 10

1. PS qualified by devolution of power
   - Scotland Act 2016
   - Government of Wales Act 1998
2. Acts of Independence
3. Westminster likely to be bound by Acts of Union “MacCormick v Lord Advocate”
4. Henry VIII powers permit government ministers to amend or repeal relevant statutes
   “Blackburn v Attorney-General”

Question 11

EU limitations (part one)

Answer 11

1. ECA 1972 - most devastating infringement on PS - principle of direct effect
2. S.2(4) ECA first limb says AOP shall be construed in order to comply with EU Law
3. Second limb says AOP shall have effect where EU and Domestic law contravene each other, directly effective EU law will take precedence over national law (Factortame)
   - national law will be disapplied even when the Act is a constitutional provision (Costa v Enel)

Question 12

EU Limitations (part two)

Answer 12

4. EU Act
5. Doctrine of implied repeal
   - further weakened by ECA and will not apply where post-1972 legislation contravenes (Factortame)
   - however Parliament may legally and expressly repeal the ECA (McCarthys v Smith)
6. S.3 HRA
   All legislation must be interpreted in accordance with ECHR as far as possible

• courts have read national legislation beyond literal meaning (Ghaidan v Godin-Mendoza)
• declaration of incompatibility places strong obligation on government to amend relevant legislation
• charter of fundamental rights in TFEU