Public law: Supremacy of Parliament Flashcards
Parliamentary Supremacy formulated by AV dicey is the principle that:
a) Parliament is the supreme law-making body, and can enaact and repeal laws on any subject
b) no parliament may be bound by predecessor nor bind a successor (law cannot be entrenched)
c) no other person/body may question the validity of an act of parliament(Enrolled rule)
AV Dicey maintain that parliament supremacy remains intact but Steyn in R v Jackson says
Sources of erosion of UK parliamentary supremacy
‘The classic account given by Dicey now can be seen to be out of place in the UK’
The doctrine of PS has been qualified and eroded to such a degree that parliament is no longer supreme (
ECA 1972 HRA 1998 Acts of Devolution Acts of Union Ref on Scottish indepedence
Evidence of supremacy of
State can
1) Alter the constitution (act of settlement 1701, ECA 1972)
2)Override constitutional conventions (Madzimbamuto v Lardner Burke (southern rodesia), fixed term parliaments acts 2011)
3)Alter override the royal prerogative
(Crown proceedings Act 1947 (remove immunity of Crown from claims from tort), Fixed term Parliament act 2011, R(miller) v SoS for Exiting the EU)
4) overriding international law (Cheney v Conn) tax statute prevailed over geneva conention
5) alter decision of courts and operate retrospectively - War Damage Act 1965 and Burmah Oil Co v Lord advocate
Define the Doctrine of implied repeal
A later statute will impliedly repeal an earlier one where their content is inconsistent (Ellen Street Estates v Minister of Health)
2 exceptions of Doctrine of implied repeal
Thoburn v Sunderland City council ‘ ordinary stautues may be impliedly repealed. Constitutional statutes may not)
Constitutional statutues are those which,
condition the relationship between citizen and state; pr
change the scope of fundamental constitutional rights
R (HS2) v SoS for transport Eu law in conflicts with uk’s constitution law, cannot be overridden without unequivocal evidence of Parliamentary intention to do so.
The Enrolled Act rule and exception
Proceedings in, and Acts oof , Parliament will not be questioned/set aside/invalidated by another body. (pickin v British Railways Board)
Steyn in R(Jackson) suggested where Parliament legislated in a manner contrary to the rule of law, the courts will refuse to uphold such legislation.
Explain Manner and Form debates
Following the Parliament Acts of 1911 and 1949, can an act make the legislative process harder (imposing a majority requirement like in the US)
entrenchment is possible (binding future parliament) (Trethowan)
European union Act 2011, before a future govt can ratify any Treaty change or any change to the current Treaty, they must first hold a referendum, unless such change does not involve the transfer of power from the UK to the EU
Domestic limitation to the parliamentary supremacy
Devolution of power to Scotland and Wales
Scotland Act 2016 -
Scottish Govt and Parliament are a permanent part s of the UK’s constitutional arrangements and neither may be abolished without a referendum
UK govt willl not legislate without the consent of Scottish Parliament
Wales 2017 - similar NI 2018 power sharing
MacCormick v Lord Advocae - Westminster likely to be bound by the terms of the Acts of Union (Seperate legal system for scotland and scottish church)
Henry VIII powers : these permit the relevant government minister to amend or repeal relevant statutes.
European limitations to parliamentary supremacy
ECA 1972 - EU treaties and other EU legislation have become a source a law in the UK under the principle of direct effect
European Union Act 2011, before the govt can ratify any Treaty change, they must first hold a referendum. unless such change does not involve the transfer of power from the UK to the EU
s.2(4) ECA 1972 - Acts of Parliament shall be construed…’ in order to comply with EU law, courts have been willing to
read against the literal meaning (Pickston v Freemans plc) (purposive approach) or add words into reading s of a statute (Litster v Forth Dry Dock)
Factortame v SoS for transport (EU and UK law contravene each other, directly effective EU wins)
National law will be disapplied
European Union Act 2011
- provides that directly applicable or directly effective EU law is recognised and available in law in the UK only by virtue of an Act of Parliament
- Provides that a referendum be held on any amendments of TFEU
How does EU law restrict the doctrine of implied repeal?
implied repeal will not apply if post-1972 legislation contravenes the ECA (Factortame)
How does HCA 1998 limit the parliamentary supremacy
All legislation must be interpreted in accordance with the ECHR
Ghaidan v Godin-Mendoza - reading national legislation beyond its literal meaning.
A delcaration of incompatibility places a very strong obligation on the Govt to amend/repeal the relevant legislationk
