Parlimentary Sovereignty

Question 1

Challenges to the doctrine

Answer 1

HRA
Factortame 
Jackson
EC
Devolution

Question 2

Dicey’s elements

Answer 2

1. Supreme law-making body:
   a) no subject limitations (exp Simms)
   b) no geographical limitations (Mortensen v Peters)
   c) no time limitations (Burman Oil Co v Lord Advocate)
2. No P. may be bound by a predecessor or bind a successor
   a) express repeal
   b) implied repeal
3. No one can question the validity of the Act (Pickin v BRB)

Question 3

No subject limitations

Answer 3

can legislate contrary to fundamental rights, can pass the law ordering the death of all blue eyed babies. However, it is only theory. In practice, political and other factors would limit it.

Question 4

express repeal

Answer 4

where legislation is passed which is expressly states an intention that an earlier Act should be repealed.

Question 5

implied repeal

Answer 5

if an Act is partially or wholly inconsistent with a previous Act, the previous Act is repealed to the extent of the inconsistency (P. should not bind its successors). Vauxhall Estates v Liverpool Corporation and Ellen St Estates v Minister of Health (plaintiffs claimed compensation for property which has been compulsory purchased)

Question 6

Devolution

Answer 6

2. The Scotland Act 1998 gave the new Scottish P. the right to legislate in relation to a number of issues. The Act provides that there will be no reduction in the legal sovereignty of Westminster to legislate for Scotland, but in reality it is a political challenge to the doctrine of PS as P. de facto has bound its successors. Politically it would be likely impossible to take away the powers that have been already provided to the Scottish P.

Question 7

No entrenchment

Answer 7

no P can be bound by a predecessor or bind a successor. Other constitutions are entrenched, i.e. protected

Question 8

European Community Act 1972

Answer 8

incorporated the Treaty of Rome 1957 into domestic law

Question 9

section 2(4) of ECA

Answer 9

“any act passed or to be passed shall be construed and have effect subject to directly applicable Community Law”

Question 10

Purposive interpretation approach

Answer 10

that if P. were to pass a statute which was expressly intended to be contrary to Community law and it would be stated clearly in the Act, the court would allow the statute to prevail as PS has been seen as the supreme source of law (Pickstone v Freeman)

Question 11

Factortame

Answer 11

the court could not interpret the statute purposively in order to make it conform with Community law

Question 12

Factortame (facts)

Answer 12

the applicants were the Spanish nationals who were incorporated under UK law and owned 95 vessels. The P. changed Merchant Shipping Act 1988 and those companies had to go through the registration process of vessels again. They failed to qualify for registration as British fishing vessels by reason of being managed and controlled from Spain or by Spanish nationals or by reason of the proportion of the beneficial ownership of the shares in the applicant companies in Spanish hands

Question 13

Factortame (High Court)

Answer 13

injunction on the Act

Question 14

Factortame (House of Lords)

Answer 14

held that the courts had no jurisdiction to grant interim relief in terms that would involve either overturning an English statute in advance of any decision by the European Court of Justice that the statute infringed Community law or granting an injunction against the Crow

Question 15

Factortame (conclusions)

Answer 15

Though it seems that now the court can suspend operation of statute in relation to EU citizens in reality it is only limitation of principle of PS. Because on the one hand P. can at any time suspend the ECA and as a result the European Community legislation would not be applied to the UK. On the other hand P. can express its will, i.e. to act contrary to the Community law, clearly and the courts would allow this.

Question 16

Factortame (legal and constitutional senses)

Answer 16

legal - Act was never invalidated

cons - Act of P. wasn’t given effect in the court

Question 17

Jackson (question before the court)

Answer 17

was Act 1949 invalid and therefore the Hunting Act too?

the court didn’t take approach in Pickin

Question 18

Jackson Obiter (1)

Answer 18

proposition that courts might have the authority to strike down an Act of Parliament if it violated fundamental constitutional principles

Question 19

Jackson Obiter (2: Lord Steyn)

Answer 19

circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish

Question 20

Jackson Obiter (3: Lord Hope)

Answer 20

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 sovereign

Question 21

Jackson: Rule of Law (conclusions)

Answer 21

fundamental values
substantive approach
legality of government actions
courts give balance against strong executive

Question 22

Jackson: PS (conclusions)

Answer 22

democratic mandate is the basis of sovereignty
PS = recognition of constitutional settlement
courts should be conscious of their place (SOP)+competence