Rule of Law and Parliamentary Sovereignty

Question 1

What is the rule of law as defined by Bingham?

Answer 1

The core of the principle is that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.

Question 2

What is the source of friction between the rule of law and parliamentary supremacy?

Answer 2

Possible for Parliament if political will to do so to pass laws that would go against the substantive features of the rule of law

Question 3

When did parliamentary sovereignty become enshrined?

Answer 3

Following the Bills of Rights 1689 and the Act of Settlement 1701

Question 4

What are the three key rules of Dicey’s continuing theory?

Answer 4

1. Parliament is the supreme law-making body
2. No Parliament may be bound by a predecessor or may bind a successor
3. No person or body may question the validity of an Act of Parliament

Question 5

What are the component parts of parliament is the supreme law-making body?

Answer 5

• there are no substantive limitations on the legislation that Parliament may enact - there are however political limitations
• in theory this means that parliament can pass whatever legalisation it wants, however unjust or impractical
• no geographical or temporal limitations - can legislate for territory beyond the jurisdiction of the UK. Can pass laws that are retrospective as well as prospective

Question 6

What are the consequences of no parliament can be bound by a predecessor or may bind a successor?

Answer 6

• no entrenchment of constitutional fundamentals
• parliament has the right to make and unmake any law whatsoever
• in the UK repeal of an Act of Parliament can be express or implied

Question 7

How is an Act of parliament expressly repealed?

Answer 7

By a new Act of Parliament which expressly repeals existing legislation

Question 8

How is an Act of parliament impliedly repealed?

Answer 8

Occurs 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 If so, the previous Act is repealed to the extent of the inconsistency

Question 9

What are the consequences of no person or body may question the validity of an Act of Parliament?

Answer 9

• Acts of Parliament are the highest form of law and are unable to be challenged in the courts
• Once a bill is enrolled - the courts will not look behind it to see if any procedural irregularity took place

Question 10

What common law restriction is there on parliamentary sovereignty?

Answer 10

If parliament wishes to enact laws contrary to fundamental human rights, parliament would have to do so in crystal clear terms.

Otherwise the courts, in interpreting the legislation will apply a strong presumption that Parliament did not intend to restrict rights.

Question 11

How have the courts viewed attempts by parliament or the executive to exclude their scrutinising power?

Answer 11

They have been extremely hostile to any such attempts

Question 12

What has been the effect of ECA 1972 on parliamentary sovereignty?

Answer 12

gave primacy to EU law both pre and post enactment of the Act