Supremacy of Parliament

Question 1

What are the 2 elements to J.V.Dicey’s formulation of the Supremacy of Parliament?

Answer 1

1. Parliament is supreme law-making body, and can make any law it pleases.
2. No other body can question the validity of an Act of Parliament.

Question 2

What is the origin of Parliamentary Supremacy?

Answer 2

17th Century struggle between the Crown and Parliament. Culminated in Bill of Rights 1689, asserting Parliament’s strength over the Crown (particularly Article 9).

Question 3

How does Parliamentary Supremacy assert itself? What rule supports this?

Answer 3

Unlimited legislative competence. The Enrolled Act rule (cf. Wauchope/Pickins) means once passed, courts will not question validity of an Act of Parliament.

Question 4

Give 6 expressions of the unlimited legislative competence of Parliament.

Answer 4

1. Alter the constitution. 2. Override Royal Prerogative. 3. Override constitutional conventions. 4. Override international law. 5. Operate retrospectively. 6. Override previous Parliaments.

Question 5

Give 2 examples of how Parliament has changed the constitution.

Answer 5

1. Act of Settlement 1701 - changed succession laws, established independence of judiciary.
2. European Communities Act 1972 - incorporated EU law.

Question 6

Give 2 examples of how Parliament can override the Royal Prerogative.

Answer 6

1. Fixed-term Parliaments Act 2011 - Crown can no longer dissolve Parliament.
2. ex parte Fire Brigades Union - Sec of State could not use prerogative to create compensation scheme when Act of Parliament - CJA 1988, had already done so.

Question 7

Give 1 example of how Parliament can override a constitutional convention.

Answer 7

Madzimabuto - Southern Rhodesia Act 1965.

Question 8

Give 1 example of how Parliament can override a international law.

Answer 8

Cheney v Conn - UK tax laws prevail over Geneva Convention (nuclear weapons).

Question 9

Give 1 example of how Parliament can operate retrospectively.

Answer 9

Burmah Oil - passed the War Damage Act 1965 which operated retrospectively.

Question 10

Give 1 example of how Parliament can override previous Parliaments.

Answer 10

Express repeal, and implied repeal under Ellen Street Estates v Minister of Health.

Question 11

Give a limitation to the doctrine of implied repeal. Case.

Answer 11

Parliament cannot impliedly repeal ‘Constitutional’ statute. Thoburn v Sunderland City Council.

Question 12

What is the manner and form debate regarding ‘entrenchment’?

Answer 12

Following Parliament Acts 1911/1949, could a Parliament set manner and form requirements for future Parliaments and thus ‘entrench’ an Act?

Question 13

Give 2 examples that gives the manner and form argument credence.

Answer 13

1. A-G for NSW v Trethowan - manner and form requirement for popular referendum was upheld.
2. European Union Act 2011 - requires referendum and Act of Parliament.

Question 14

What did Lord Denning say about practical limitations on Parliament’s power? Case.

Answer 14

Blackburn v A-G. “Legal theory must give way to practical policies”.

Question 15

Give 3 examples that highlight socio-political limitations on Parliament’s freedom to repeal any Act.

Answer 15

1. Acts of Independence in 20th century.
2. Acts of Union 1706-7 - cf. MacCormick v Lord Advocate - cannot repeal provision for separate legal system.
3. Lord Steyn in R v Jackson, re the Rule of Law and judicial review.

Question 16

Name a further domestic limitation on the supremacy of Parliament.

Answer 16

Henry VIII powers.

Question 17

Authority for direct effect/applicability of EU law?

Answer 17

s2(1) ECA 1972.

Question 18

What does the ECA 1972 say about cases of conflict between UK and EU law?

Answer 18

Under s2(4), UK courts are obliged to interpret UK law to give effect to aims of EU law.

Question 19

Give 4 cases which show the extent of the limitation on Parliament imposed by EU law.

Answer 19

1. Pickstone v Freeman - interpreted against literal meaning.
2. Litster v Forth Dry Dock - added words into Act of Parliament.
3. Factortame - suspended Act of Parliament.
4. Costa v ENEL - supreme over Constitution.

Question 20

In what way does the HRA 1998 impose a limitation on Parliament?

Answer 20

Under s3 HRA 1998, courts must interpret UK law to give effect to ECHR as far as possible. N.B. ‘weak incorporation’.

Question 21

Give 2 cases which show the extent of the limitation on Parliament imposed by the ECHR.

Answer 21

1. Ghaidan v Godin-Mendoza. UK courts seemingly willing to implement ECHR fully, even if it means going against strict literal meaning of UK law.
2. Belmarsh - remedial order under s10 HRA.

Question 22

What is the argument regarding repeal of the ECA 1972? 2 cases. Counter-argument?

Answer 22

Self-imposed limitation, Parliament could simply repeal ECA 1972 - Garland v BRE/McCarthy v Smith. But socio-political reality.