PL9 : Parliamentary Sovereignty Flashcards

Question

Broadly political character of UK Constitution

Answer 1

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

Answer 2

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

Answer 3

* 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])

Answer 4

* 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

Answer 5

* introduced a ‘referendum lock‘. * Extended pledge beyond the life of thatvParliament by creating a manner and form requirement.

Answer 6

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"

Answer 7

* ending of Empire * partial erosion of the Union (of the UK).

Answer 8

* 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]

Answer 9

* 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.

Answer 10

* Challenge Diceyan doctrine of parliamentary sovereignty * Parliament legislated to reduce sphere of authority

Answer 11

* 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.

Answer 12

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

Answer 13

political change has not diminished the unlimited legal authority of Parliament

Answer 14

* 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

Answer 15

* 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

Answer 16

* 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

Answer 17

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

Answer 18

* 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

Answer 19

* 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

Answer 20

* 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

Answer 21

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

Answer 22

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.

Answer 23

* 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"

Answer 24

* 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

Answer 25

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

Answer 26

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

Answer 27

* 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]

Answer 28

* 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.

Answer 29

* 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,

Answer 30

* 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

Answer 31

* "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**

Answer 32

* 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

Answer 33

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

Answer 34

* 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’)

Answer 35

* 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

Answer 36

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."

Answer 37

* 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 *

Answer 38

* […] 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

Answer 39

* 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).

Answer 40

* 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’.

Answer 41

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

Answer 42

* 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

Answer 43

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.

Answer 44

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

Answer 45

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

Answer 46

* 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

Answer 47

* 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 *

Answer 48

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

Answer 49

* 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).

Answer 50

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

Answer 51

"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

Answer 52

* 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**

Answer 53

Ensures that there is a political cost to the transparency

Answer 54

* 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

Answer 55

Courts are universally hostile since the 1960s **Anisminic**

Answer 56

* 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.

Answer 57

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.

Answer 58

* 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]

Answer 59

* 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.

Answer 60

* 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

Answer 61

* Court developed - extension to 1990's case law * Temper Dicey's theory of unlimited Parliamentary supremacy * Parallel route for rights protection

Answer 62

* 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"

Answer 63

* **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

Answer 64

* R (Unison) v Lord Chancellor [2017] * R (Evans) v Attorney General [2015]

Answer 65

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’.

Answer 66

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

Answer 67

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

Answer 68

* 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.

Answer 69

* 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.

Answer 70

* 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