The legislative supremacy of parliament Flashcards
What is parliament
comprimises of the monarch, house of lords and house of coomons
Diceys definition of parliamentary sovereignty
‘right to make or unmake any law whater’… ‘no person or body is recognised as having a right to override or set aside the legislation of parliament’
what two cases shows that citizens cannot question an act of parliament
British railways board v pickin
Stella madzimbamuto v desond william lardner-burke
what happened in british railways board v pickin
Pikcin alleged defects in the manner which the British railways act 1968 was passed. HL held the function of the court was to consider and apply the enactments of parliament. It was not lawful to impugn the validity of a statute by seeking to establish that parliament, in passsing it, was misled by raud. The court has no concern with the manner in which parliament of carrying out its standing orders to perform these functions
what happened in stella madzimbamuto v desmond william lardner-burke
it was often said that it would be unconsitutional for the UK parliament to do certain things. meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if parliament did these things
but that does not mean that it is beyond the power or parliament to do such things
if parliament chose to do any of them the courts could not hold the act of parliament invalid.
what case represents judicial obedience
Manuel v attorney general
what did manuel v attorney general concern with
the case conserned a challegne made by representatives of the indian nations of canada to the canada act 1982, Sir robert megarry says that nothing in this case makes me doubt the simple rule that the duty of the court is to obey and apply every act of parlaiment and taht the court cannot hold any such act to be ultra vires once an instrument is recognised as being an act of parliament, no english court can refuse to obey it or question its validity.m
What case concerns the power to legislate prospectively and retrospectively
Burmah Oil v Lord advocate
what happened in the case of Burmah oil v lord advocate
HL held that the crown was bound to compensate those whose property had been destroyed by british forces during the second world war. This would have resulted in a massive resources drain on the UK’s finances
retrospective parliamentary intervention followed in the form of the war damages act 1965, i.e. the purpose was to ‘abolish rights at common law to compensation in respect of damage to property affected by the crow during war’. Rights which existed prior to the act were thus extinguished.
what case is concerned with the doctrine of impied repeal
vauxhall estates v liverpool corporation
what happened in vauxhall estates v liverpool corporation
the plaintiffs claimed compensation for property which were compulsorily pruchased from them. according to the defendants this was to be assessed in complaince with the housing act 1925. The plaintiffs argued that the assessment should be calculated accordin to the more generous terms contained in the acquistion of land act.
The court felt bound to apply the 1925 enactment
the provisions of the 1919 act had, by implication been repealed.
what case concerns with the implied repeal of constitutional states
Thoburn v sunderland city council
what happened in thoburn v sunderland city council
the case concenred a number of market traders who had been convicted of selling goods by imperial measurements contrary to regulations made ynder the european communities act requiring the sale of goods in metric measurements only
In relation to the implied repeal doctrine LAWS LJ said - the common law has come to recognise that there exist rights which should be properly classified as constitutional or fundamental. we should recognise a hierarch of acts of parliament - as it were ‘ordinary’ statutes and ‘constitutional’ statutes.
in the case of thoburn and sunderland city council what is a constitution statute
one which conditions the legal relationship between the citizen and state in some general, overarching manner, or enlarges or diminishes the scope of what we would no regard as fundamental constitutional rights…
what is the european communities act
a constitutional statute
can ordinary statues be impliedly repealed?
Yes
can constitutional statutes be implied repealed?
no
what case concerns to whether parliament can bind itself or future parliaments?
Ellen street estates v minister of health
what was the decision made in ellen street estates v minister of health
the legislature (parliament) cannot, according to our constitution, bind itself as to the form of subsequent legislation
What case concerned with unlimited supremacy?
Dr. Bonhams case
what happened in dr bonhams case
concerned action for false imprisonment - COKE CJ - for when an act of parliament is against common right and reason… the common law will control it and adjudge such act to be void; and there fore… some statutes are made against law and right, which those who made them would not put them in execution.
what comment was made in r v lowe
whatsoever is not consonant to the law fo god or to right reason which is maintained by scripture be it acts of parliament it is not the law of england
what happened in the case of Jackson v AG
jackson questioned whether the hunting act 2004 had been validly enacted pursuant to the provisions of the parliament act 1911 and the parliament act 1949 - jackson sought declarations that the 1949 act was not an act of parliament and was consequently of no legal effect
what did lord hope say in the case of Jackson v AG
parlaimentary sovreignty is no longer, if it ever was, absolute. No longer right to say that its freedom to legislate admits of no qualification whatever.
“ it is the essence of supremacy of the law that the courts shall disregard as unauthorised and void the acts of any organ of government, whehter legislative or administrative, which exceed the limits of the power that organ derives from the law. in its modern form, now reinforced by the … enactment by parliament HRA 1998, the principle protects the individual from arbitrary government. The rule of law enforced by the courts is ultimate controlling factor on which our constitution is based”
