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Public 1 and Contract > PL9 : Parliamentary Sovereignty > Flashcards

PL9 : Parliamentary Sovereignty Flashcards

1
Q

‘Glorious Revolution’

A

1688 marked the most
Tturning point in English constitutional history.
End of absolutist monarchy

Eg
Bill of Eights 1689
Act of Settlement 1701

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2
Q

Evolution of Parliamentary Authoirty

A
  • Gradual
  • Monarchs had considerable influence into 19th C
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3
Q

Electoral Reform Acts

A

Three in the 19th C
1928 that all men and women over 21 could vote

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4
Q

Dicey’s theory of Parliamentary Sovereignty

A
  • Parliament is the supreme law-making body.
  • No Parliament may be bound by a predecessor or may bind a successor.
  • No person or body may question the validity of an enactment of Parliament.
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5
Q

Supreme Law Making Body

A
  • No substantive/legal limitations on legislation Parliament may enact

eg can alter constitution
Disestablished the Church of Ireland by passing the Irish Church Act
1869.

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6
Q

Irish Church Act 1869

A
  • disestablished the Church of Ireland by passing the Irish Church Act
    1869.
  • ex parte Canon Selwyn (1872) - court dismissed a challenge to the validity of this Act based on an argument that it was contrary to the Acts of Union with Ireland (1800)
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7
Q

No Substantive Restrictions on Parliament

A
  • Can legislate contrary to fundamental rights
  • Can legislate contrary to international law - eg Mortensen v Peters and Cheney v Conn
  • “legality principle”
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8
Q

Mortensen v Peters

A
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9
Q

the ex parte Simms case

A
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9
Q

Cheney v Conn

A
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10
Q

Can Parliament pass legislation with retrospective effect?

A

Yes, although not desirable in Rule of Law terms
Eg War Damages Act 1965
War Crimes Act 1991

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11
Q

No Parliament may be bound by a predecessor or bind a successor,

A
  • Absence of entrenchment as a constitutional safeguard in the UK constitution.
  • UK’s uncodified constitution does not possess any formal arrangements to entrench its constitutional fundamentals.
  • Constitution could potentially be changed through an Act of Parliament
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12
Q

UK repeal can take…

A
  • Express or;
    Implied Form
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13
Q

Express Repeal

A
  • Is passed that expressly states an intention that an earlier Act should be replaced.
  • Consolidate and simplify legislation
  • eg Interception of Communications Act 1985 was expressly repealed and replaced by the Regulation of Investigatory Powers Act 2000.
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14
Q

Equality Act 2010.

A

Express repeal of:
Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability
Discrimination Act 1995

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15
Q

Implied repeal

A
  • When a new Act is partially or wholly inconsistent with a previous Act.
  • Previous Act is repealed to the extent of the inconsistency.
  • Implicit intention - Parliament would not intend two incompatible / irreconcilable statutes to be given effect at the same time
  • Later statute = most recent expression of its will.
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16
Q

Effect of Implied Repeal

A
  • Cannot bind successors against implied repeal
  • Sovereignty takes a “continuing form”
  • Equal freedom of maneuver
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17
Q

Sovereignty takes a “continuing form” -
Housing Case

A
  • Vauxhall Estates v Liverpool Corporation [1932]
    and Ellen St Estates v Minister of Health [1934] 1
  • Compensation for landowners whose property had been compulsorily purchased under legislation passed after the First World War.
  • Housing Act 1925 Implied repeal of 1919 Act
  • Not able to bind successors
  • Proviso in Thoburn v Sunderland City Council [2002]
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18
Q

Thoburn v Sunderland City Council [2002]
Very significant proviso

A
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19
Q

Validity of Acts of Parliament

A
  • highest form of law
  • Manner legislation is passed and substance of the law is not
    reviewable by the courts.
  • Diceyan theory does not allow for judicial review of procedural irregularity
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20
Q

Enrolled Bill Rule

A
  • if a bill has been enrolled - ie it has become an Act of Parliament - it is impossible to go behind that
  • Edinburgh and Dalkeith Railway v Wauchope (1842)
  • Pickin v British Railways Board [1974] AC 765.
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21
Q
  • Edinburgh and Dalkeith Railway v Wauchope (1842)
A
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22
Q
  • Pickin v British Railways Board [1974]
A
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23
Q

*Lord Morris
* Pickin v British Railways Board [1974]

A
  • In the courts there may be rgument as to the correct interpretation of the
    enactment: there must be none as to whether it should be on the Statute Book at all
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24
Q

Broadly political character of UK Constitution

A

Political ‘drivers’ of change tend to be more significant than fundamental constitutional rules

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25
Q

Essence of Professor A.V. Dicey’s theory

A
  • Westminster Parliament has unlimited legal powers. ie No substantive or procedural limitations
  • Key to UK constitutional law since the late 19th century.
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26
Q

Challenges to the purity of Diceyan doctrine

A
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27
Q

Procedural Limitations - to parliamentary sovereignty

A
  • Possible for Parliament to introduce procedural requirements to make it harder for subsequent parliaments to change the law
  • Entrenchment by “manner and form”
  • Diceyan view: would not be binding on a successor
    parliament.
  • Enrolled bill rule: Courts would not consider a challenge to the statute
    (Pickin v British Railways Board [1974])
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28
Q

Commonwealth cases
Attorney General for New South Wales v Trethowan [1932]

A
  • New South Wales legislature was a creation of the UK Parliament and was subordinate to it. It was not a sovereign legislature
  • possibility of manner and form entrenchment only therefore seems to apply – according to this reasoning – to subordinate legislatures
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29
Q

European Union Act 2011

A
  • introduced a ‘referendum lock‘.
  • Extended pledge beyond the life of thatvParliament by creating a manner and form requirement.
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30
Q

Debate over the possibility of procedural limitations on Parliament’s powers

A

eg: Thoburn v Sunderland City Council [2002] : ‘Parliament […] cannot stipulate as to the manner and form of any subsequent legislation’.

eg: Jackson v Attorney-General [2005]: “If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, [ie via the Parliament Acts] it may very well be that it can
also redefine itself upwards”

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31
Q

Thoburn v Sunderland City Council [2002]

A
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32
Q

Jackson v Attorney-General [2005]

A
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33
Q

notable historical challenges to the notion of Westminster omnipotence

A
  • ending of Empire
  • partial erosion of the Union (of the UK).
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34
Q

Legislative independence

A
  • Acts of Union were not created by the UK Parliament but by the original English, Scottish and Irish Parliaments.
  • Acts created a new UK Parliament that did not have unlimited sovereignty but was limited by its founding constitutional documents.
  • Professor J. Mitchell, the new Parliament was ‘born unfree‘.
    MacCormick v Lord Advocate [1953]
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35
Q

MacCormick v Lord Advocate [1953]

A
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36
Q

Dominions

A
  • Canada, Australia and NZ
  • Dominion status = semi-independent states under the British Empire.
  • Constitutions established by UK Acts of Parliament.
  • Constitutional convention that no new UK Act affecting a Dominion passed without
    request and consent of that Dominion.
  • Confirmed s 4 of the Statute of Westminster 1931 = recital in the relevant legislation of the request and consent from the Dominion.
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37
Q

Dominions Impact on Westminster Sovereignty

A
  • Challenge Diceyan doctrine of parliamentary sovereignty
  • Parliament legislated to reduce sphere of authority
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38
Q

Sig development - Dominions - Impact on Westminster Sovereignty

A
  • Granting of Dominion status to the new Irish Free State in 1922 (subsequently the Republic of Ireland from 1949), comprising all the island of
    Ireland except the six north-eastern counties of Northern Ireland.
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39
Q

Legal authority of Westminster?
Challenge for the courts

A

reconciling undoubted political diminution of Westminster authority with the orthodox legal principle in Dicey’s theory.

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40
Q

Megarry VC in Manuel v Attorney General [1983]

A

political change has not diminished the
unlimited legal authority of Parliament

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41
Q

Blackburn v Attorney General [1971]

A
  • Political and legal authority operate on entirely different planes
  • Legal theory does not always march alongside political reality.
  • “Freedom once given cannot be taken away. Legal theory must give way to practical politics.” - Denning
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42
Q

Impact of devolution

A
  • Programme of devolution
  • In the past, autonomous powers given by Westminster have been suspended or taken away. eg Direct rule from Westminster was imposed on Northern Ireland from 1972 to 1998
  • Difficult to see how devolution would be reversed = POLITICAL RATHER THAN LEGAL limitation in practicality
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43
Q

Dualist State

A
  • distinction between the two sources of law.
  • domestic law has a higher status in the UK legal
    system, because this is created by the sovereign Parliament (Mortensen v Peters,)
  • Need to “incorporate” external law in UK system if to be enforced
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44
Q

Mortensen v Peters,

A
45
Q

European Communities Act (ECA). 1972

A
  • three key provisions in the ECA in relation to sovereignty.
  • Section 2(1) gave effect to EU law within the UK.
46
Q

EC/EU Treaty Obligations

A
  • Treaty of Accession in 1972
  • full member of the European Communities (now known as the European Union) from 1 January 1973.
  • To incorporate the Treaty of Rome 1957, Parliament passed the ECA
    1972.
  • other treaties have modified or amended the original Treaty: Maastricht Treaty
47
Q

ECJ jurisprudence

A
  • Section 3(1) questions of law relating to the EU determined according to
    the principles laid down by the European Court of Justice (ECJ).
  • gave effect to the case law of that court (Court of Justice of the European Union – the CJEU)
  • supremacy / primacy of EU law over domestic law
  • Costa v E.N.E.L. (Case 6/62) [1964] - EU law must prevail
48
Q

Costa v E.N.E.L. (Case 6/62) [1964]

A
49
Q

ECA and primacy of EU law

A
  • Section 2(4) of the ECA sought to accommodate the primacy of EU law
  • Doctrine of implied repeal operated to ensure that any pre-1972 statutes, which were incompatible with EU law, would be overridden by the ECA/
  • After 1972 to be subject to EU Law
    Tension with parliamentary sovereignty as appeared to bind future parliaments
  • Vauxhall Estates
  • Ellen Street Estates
50
Q
  • Vauxhall Estates
A
51
Q
  • Ellen Street Estates
A
52
Q

Early Case Law

A
  • Early cases re: employment rights
  • Allegiance to parliamentary sovereignty
  • Presumption Parliament was intending to comply with EU law
    Macarthys Ltd v Smith [1979]
53
Q

Macarthys Ltd v Smith [1979]

A

Court of Appeal accepted that, by virtue of ss 2(1) and 2(4) ECA 1972,
EU law would take precedence over the relevant statute,
If it proved to be inconsistent with that statute.

54
Q

Crunch point - Factortame

A
  • Purposive approach to achieve harmony between EU and UK law
  • 1990 Factorame Ltd case
  • Over application of the Merchant Shipping Act 1988
  • Clamp down on “quota hopping”
55
Q

Factortame – the facts

A
  • 95 fishing vessels registered as British although managed by Spanish nationals
  • Merchant Shipping Act (MSA) 1988, changed law
  • Vessels didnt quality
  • Legality challenged - contravened the provisions of the EEC Treaty and other aspects of EU law, as incorporated by the ECA 1972 eg notably freedom of establishment.
  • Referred to ECJ
56
Q

Factortame (No. 2)

A
  • Following ECJ reference - Law Lords est: courts could now suspend an Act of Parliament where they were required to do so by EU law.
57
Q

Lord Bridge
Factortame (No. 2)

A

in enacting the ECA 1972 Parliament had ‘voluntarily’ signed up to a ‘limitation’ on its own sovereignty

58
Q

Post-Factortame

A
  • beyond doubt that EU law could override or ‘disapply’ conflicting UK statutes
    enacted after 1972.
  • R v SoS Employment, ex parte Equal
    Opportunities Commission [1995]
59
Q

R v SoS Employment, ex parte Equal
Opportunities Commission [1995]

A
  • case involving the rights of part-time workers under the Employment Protection (Consolidation) Act 1978
  • part-time workers were predominantly female, the EOC argued that the statute indirectly discriminated against women contrary to EU law.
  • HoL agreed and granted declaration
  • industrial tribunals subsequently ignored the
    wording of the Act and granted part-time workers compensation rights if they had completed two (rather than previously, five) years employment.
60
Q

Thoburn v Sunderland City Council [2002]

A
  • Metric Martyrs’ - who were convicted for using imperial measures (ie pounds and ounces) contrary to legislation
  • Claimed Weights and Measures Act 1985, allowed for the use of both metric and imperial measurements.
  • Laws LJ found no incompatibility,
61
Q

Laws LJ in Thoburn v Sunderland City Council [2002]

A
  • Diceyan doctrine of implied repeal no longer operated
  • EU was able to prevail
  • As exception to doctrine of implied repeal
  • Hierarchy of statutes - “ordinary” “constitutional”
  • Ordinary can be appeaked; Constitutional cannot
62
Q

Laws LJ Constitutional Statutes

A
  • “by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.
  • ordinary rule of implied repeal does not satisfy this test = no application to constitutional statutes.
    Approved in Miller (1) case - conflicts with Dicey’s view
63
Q

Reflections on ECA and sovereignty

A
  • Impact of EU on Parl Sov = significant but temporary
  • Factortame – possible for one parliament (in 1972) to have bound future
    parliaments in a substantive way
  • Only lasted for as long as Parliament wished to be bound (2019)
  • Cannot prevent removal of restrictions - providing politically possible
64
Q

Incorporation of ECHR

A

Human Rights Act 1998 (HRA) Incorporated ECHR into domestic law

65
Q

Key sections of HRA

A
  • Section 2 – interpretation of ECHR rights
  • Section 3 – interpretation of legislation
  • Section 4 – declarations of incompatibility (and section 19 – statements)
  • Section 6 – enforcement of rights (and ‘statutory defence’)
66
Q

Section 2 HRA - Interpretation of ECHR Rights

A
  • any ‘court or tribunal determining a question which has arisen in
    connection with a Convention right must take into account’ the jurisprudence of the European Court of Human Rights (in Strasbourg)… as far as relevant
67
Q

‘mirror principle’

A

Lord Bingham R (Ullah) v Special Adjudicator [2004]

“The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

68
Q

Dialogue

A
  • Courts have argued for a development to preserve autonomy of English Law
  • Dialogue betweek UK and ECHR - on how best to maintain and promote ECHR
    *
69
Q

R v Horncastle [2009]

A
70
Q

R (Ullah) v Special Adjudicator
[2004]

A
71
Q

R (Haney) v SoS for Justice [2014]

A
72
Q

Section 3 HRA

A
  • […] so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights
  • Interpret existing legislation in an ECHR compatible way
73
Q

R v A (Complainant’s Sexual History) [2002]

A
  • Defendant claimed that his Article 6 rights to a fair trial were compromised by very restrictive provisions that had been introduced in s 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA).
74
Q

R v A (Complainant’s Sexual History) [2002]
Lord Steyn

A
  • read a new provision into s 41 of the 1999 Act
  • may be necessary for a s 3 interpretation to be made that appears to conflict with parliamentary intention.
  • only appropriate where the interpretation does not go ‘against the grain’ of the underlying policy and scheme of the original legislation.
  • YJCEA in the R v A (CSH) case was passed subsequently to the HRA, this later Act
    was ‘governed’ by the terms of the dominant, ‘constitutional statute’.
75
Q

S3 HRA Interpretative tool

A
  • a powerful interpretive tool
  • interventionist beyond modern forms of purposive statutory interpretation.
  • HRA in effect has a higher status
    than an ‘ordinary’ statute
76
Q

S4 HRA

A
  • If the court is satisfied that [a] provision is incompatible with a Convention right, it may make a declaration of incompatibility.
  • Political rather than legal effect - matter of political judgement for minister
77
Q

Section 3 or section 4 are effectively….

A

Section 3 or section 4 are effectively alternative powers that the court can utilise if incompatible legislation appears to have facilitated the violation of an ECHR right.

78
Q

notable examples of use of s 4

A

A & Others (the Belmarsh case) [2004]
Government did re-evaluate its anti-terrorism
policy

79
Q

A & Others (the Belmarsh case) [2004]

A
80
Q

s 4 as a mechanism……

A

s 4 as a mechanism which achieves an indirect form of constitutional review of legislation (in practical reality rather than in absolute terms).

81
Q

Section 19 HRA

A
  • Sponsoring minister in Parliament has a duty under s 19 HRA to make a statement (before second reading) in relation to the compatibility of the Bill’s provisions with Convention rights
  • Political approach to ECHR
  • Ultimately up to courts to decide on compatibility
82
Q

HRA – as accommodation with sovereignty

A
  • Design of the HRA as representing an accommodation between
    stronger rights protection
  • Need not undermine parliamentary sovereignty
  • s 4 and s 6(2) HRA - important for this
    *
83
Q

s 6(1) HRA

A

public authorities must act in a way
that is compatible with ECHR rights.

84
Q

s. 6(2) defence

A
  • allows a public authority to plead that it was obliged or allowed to violate an ECHR right because of the operation of incompatible legislation
  • (which it has not been possible to make compatible using s
    3 powers).
85
Q

Developments in common law sphere have….

A

have arguably also had the effect of modifying the purity of Diceyan doctrine.

86
Q

R v SoS Home Department ex parte Simms [2000]

A

“Fundamental rights cannot be overridden by general or ambiguous words.”
“courts therefore presume that even the most general words
were intended to be subject to the basic rights of the individual”
L Hoffman

87
Q

Lord Hoffmann’s statement balances two key constitutional principles

A
  • Parliament can undermine fundamental rights
    *Courts apply strong presumption that Parliament does not intend to restrict rights
  • To set aside rights, must do so in crystal clear terms = mild entrenchment
88
Q

very mild form of entrenchment of fundamental rights

A

Ensures that there is a political cost to the transparency

89
Q

‘Ouster clauses’

A
  • legislative attempts to ‘oust’ the courts’ rights to scrutinise governmental actions and decisions through judicial review
  • try to prevent decisions made using the relevant statutory powers being reviewed in court
90
Q

Courts are hostile ….

A

Courts are universally hostile since the 1960s
Anisminic

91
Q

Anisminic v Foreign Compensation Commission [1969]

A
  • s4(4) of the Foreign Compensation Act 1950 ouster clause
  • law lords held that the ouster clause did not prevent it from challenging the FCC’s decision.
  • preserves the ordinary jurisdiction of the court.
92
Q

s4(4) of the Foreign Compensation Act 1950 ouster clause

A

The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.

93
Q

Ouster clauses and sovereignty

A
  • Courts see them as an affront
  • Use highly purposive interpretation to bypass intention of Parliament
    eg R v Home Secretary, ex parte Al Fayed [1997]
    eg R (Privacy International) v Investigatory Powers Tribunal [2019]
94
Q

R (Privacy International) v Investigatory Powers Tribunal [2019]

A
95
Q

R v Home Secretary, ex parte Al Fayed [1997]

A
96
Q

Legality Principle

A
  • not established in the Simms case - series of cases in the 1990s
  • R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994] = concerned prison rules permitting interception of legal correspondence between a prisoner and his lawyers.
  • Court of Appeal held that these interfered with a constitutional right to the free flow of communications between a solicitor and a client about contemplated legal proceedings.
97
Q

R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994]

A
98
Q

R v Lord Chancellor, ex parte Witham [1997]

A
  • challenge to scale of court fees set by the Lord Chancellor under the authority of a statutory instrument.
  • the Act did not authorise the Lord Chancellor to set fees at such a level that
    access to the courts, a fundamental right, was denied.
  • declared to be ultra vires the Act
99
Q

Common law constitutionalism

A
  • Court developed - extension to 1990’s case law
  • Temper Dicey’s theory of unlimited Parliamentary supremacy
  • Parallel route for rights protection
100
Q

Osborn v Parole Board [2013]

A
  • Unlawful to fail to allow oral hearings for three prisoners
  • Challenge was based on Article 5(4) ECHR,
  • Lord Reed stated HRA did not “supersede the protection of human rights under the common law or statute”
  • “Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the act when appropriate”
101
Q

Access to and independence of the courts

A
102
Q

Administrative bodies such as the Parole Board had an obligation ….

A
  • to act fairly to those about whom they were making important decisions.
  • personal involvement of prisoners in the decision-making process that
    affected them
  • Accountability and transparency
103
Q

Access to and independence of the courts

A
  • R (Unison) v Lord Chancellor [2017]
  • R (Evans) v Attorney General [2015]
104
Q

R (Evans) v Attorney General [2015]

A

UKSC found that the Attorney General had ‘contradicted the fundamental principle that a court’s decision could not be ignored or set aside by anyone, including the executive, and that the executive’s actions were reviewable by the court’.

105
Q

R (Unison) v Lord Chancellor [2017]

A

Supreme Court found that a new fees regime
for employment tribunals was unlawful, partly on the basis of a constitutional right of access to
the courts and tribunal system – often known as ‘access to justice‘. This was seen as inherent to
the rule of law

106
Q
A
107
Q

Openness and Transparency

A

Kennedy v The Charity Commission [2014] UKSC 20.
Lord Mance called the ‘common law presumption in favour of openness’ -

108
Q

Kennedy v The Charity Commission [2014] UKSC 20.

A
  • Case concerned a journalist’s Freedom of Information Act request in relation to a charity set up by the controversial politician, George Galloway.
  • court’s view was that it was the role of the judiciary, through the common law, to determine the application (or otherwise) of disclosure requirements in light of the above common law presumption.
  • Centrality of common law constitutional principles in determining
    such an issue.
109
Q

Jackson v Attorney General [2005]
Jaclson argument

A
  • Went to HoL
  • Jackson’s case (as the Chairman of the Countryside Alliance) was Hunting Act 2005 invalid, as passed under the accelerated procedure laid down in the Parliament Act (PA) of 1949.
  • 1949 Act invalid because HoC alone had amended the original Parliament Act of 1911.
  • Not permissible because an implied exception to the use of the procedure set down in the 1911 Act, which originally established an accelerated process for passing legislation that could involve bypassing the House of Lords.
  • This exception meant a ‘delegate body’ (ie a Parliament comprising only the Commons) could not increase its own powers on its own authority.
110
Q

Democratic Safeguard?
Would it be possible for a future House of Commons to extend its
own lifetime (beyond the five-year limit)

A
  • there was an implied exception to this extent
  • vital to maintain the very important democratic safeguard in s2(1) by ensuring that the House of Commons could not extend its own time in power without being checked by the House of Lords as the second chamber
111
Q

COMPLETE

A

Public 1 and Contract (24 decks)

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