PUBLIC LAW L4 - Parliamentary sovereignty 1 - HISTORICAL BACKGROUND & THEORY Flashcards
What is the traditional analysis of the UK constitution? (1)
That there are limits to the legislative competence of Parliament.
What is the doctrine of unlimited sovereignty of Parliament a product of? (5)
A long historical struggle between Parliament and the Crown in the 17th century, which culminated in the Glorious Revolution 1688 and the subsequent Bill of Rights 1689 and Act of Settlement 1701. These founding pieces of legislation effectively enshrined the sovereignty of Parliament as an institution.
What have the courts held is the supreme form of law in the UK? (1)
Acts of Parliament.
What did Professor A.V. Dicey’s explanation of the continuing theory of parliamentary sovereignty? (3)
The principle of parliamentary sovereignty means nothing more or less than this, namely Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatsoever; and further that no person or body is recognised by the law of England as having a right to overrise or set aside the legislation of Parliament.
What 3 basic rules does Professor A.V. Dicey’s theory encompass? (3)
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 Act of Parliament.
Are there substantive limitations on legislation that Parliament may enact according to Dicey’s theory? (1)
No, this suggests they can pass legislation however unjust or impractical.
Are there geographical limitations on territory parliament can legislate for? (1)
No, even if it produces a conflict of international law.
How can the UK constitution be drastically changed by a single Act of parliament? (2)
It could happen through new law or the repeal of existing law.
What forms can UK repeal take? (2)
Express or implied form.
Describe express repeal? (2)
It occurs when legislation is passed that specifically states an intention that an earlier Act should be replaced e.g. Interception of Communications Ac 1985 expressly repealed and replaced by the Regulation of Investigatory Powers Act 2000.
When does express repeal happen? (2)
It happens when there is a drive to consolidate and simplify legislation e.g. Sex Discrimination Act 1975, Race relations act 1976 and disability discrimination act 1995 were all expressly repealed and replaced by the Equality Act 2010.
Describe implied repeal. (1)
It operates on a more subtle level and is a key feature of the second element of Dicey’s theory on sovereignty.
When does implied repeal come about? (3)
If a new act is partially or wholly inconsistent with a previous act. If so, the previous act is repealed to the extent of the inconsistency. It is known as implied because Parliament is deemed to have implicitly intended the later act to repeal the earlier one.
Explain the cases of Vauxhall and Ellen Street Estates. (3)
Both involved claims for compensation for landowners whose property has been compulsorily purchased from them under legislation passed after WW1. Defendants were told that their compensation would be assessed according to the Housing Act 1925 but they argued it should be assessed according to the Acquisition of Land act 1919, which stipulated its provisions were to prevail over any other statutes. The court denied the 1919 act was intended to have that effect and even if it had been that intention the 1919 act could not have prevented the 1925 act from impliedly repealing it as no Parliament is able to bind its successors.
What does the third part of Dicey’s theory follow from? (2)
From the basic doctrine that law created by Parliament is supreme. It rests on the notion that acts of parliament are the highest form of law so neither the manner in which legislation is passed, nor the substance of the law should be reviewable by the courts.
