Tutorial 3 Parliamentary Sovreignity

Question 1

What is the difference between legal and political sovereignty?

Answer 1

Political sovereignty- A political concept that identifies where the ultimate source of political authority lies
Dicey says sovereignty in a political sense is the ‘will of which is ultimately obeyed’

Legal concept of sovereignty- Dicey P has the right to make and unmake any law

2 Aspects: Positive P can make or unmake any rule
Negative no one can make rules which derogate from or override an act of P

Question 2

Dicey concept of PS

Answer 2

P is completely S and has the right to make and unmake laws

Is not binded by past statutes or common law- should take the most recent Act of P

Question 3

Can P limit its power?
NO

Answer 3

Orthodox constitutional doctrine: No legal limits to the law P can enact
Any restraint that P exercises flows from the political not legal system

Wade= Absolute entrenchment is impossible as the courts must respond to the most recent expression of P intention when 2 Acts conflict

Question 4

Can Parliament limit its power?
YES

Answer 4

Manner and Form theory
P is and should be capable of laying down binding conditions concerning how and the form of legislation to be enacted
Should not be capable of ‘tying future legislators’ hands

Contingent entrenchment- P can and should be able to make it more difficult for a statute to be amended or repealed

Absolute entrenchment- P cannot make it impossible for a law to be amended or repealed

Question 5

Jackson v AG 2006

Answer 5

Issue: Was the P Act 1949 which amended the P Act 1911 was invalid as it was passed without HoL consent

HoL held there is no constitutional principle or principle of statutory interpretation that prevents a legislature from altering its constitution

Some support for the New view (manner and form theory)

Question 6

Did EU membership require a change to the traditional conception of Parliamentary sovereignty?

Answer 6

P cannot change EU law as P recognises the supremacy of EU law under the European Communities Act 1972

Key cases:
Factortame 1991- Any statute not compatible with EU law= disapplied by the courts

Thoburn 1972 Act= a special constitutional statute- endorsed by Miller

Question 7

EU membership impact on PS?

Answer 7

P domestic law was not the most authoritative legislation due to EU law- threatens the concept of Parliamentary supremacy

P= a higher power as P can leave the EU

EU law in the UK is reliant on P supporting it- no threat to PS

Question 8

Thoburn v Sunderland City Council 2003

Answer 8

Implied repeal is may occur where P enacts successive statutes that are inconsistent

Earlier statute= repealed by the latter

Laws LJ Distinction between ordinary and constitutional statutes- CS may not be impliedly repealed

Question 9

Ellen Street Estates 1934

Answer 9

Legislature cannot bind the formation of subsequent legislation

Question 10

Constitutional statutes (Thoburn)

Answer 10

Courts must find express words in the later statute that show that P intended to repeal the former constitutional statute

Question 11

Has Brexit taught is anything about the doctrine of PS?

Answer 11

Following Miller 1- PS= strengthened

Miller 1- 1972 Act can be repealed, the principle of PS= fundamental and means EU law is reliant on P

PS= an evolving rather than fixed concept

Question 12

Is there a distinction between constitutional and ordinary statutes?

Answer 12

Thoburn:
CS must be addressed with express repeals
Ord Statutes can be implied

Question 13

Constitutional Statutes

Answer 13

Defined in Thoburn:
Conditions the legal relationship between citizen and state in an overarching manner

Enlarges or diminishes the scope of constitutional rights

Question 14

Factortame

Answer 14

Any statute not compatible with EU law would be disapplied

Question 15

Henry VIII clauses

Answer 15

Retrospective H8 clauses give someone the power to amend, change, and repeal laws that pre-exist the conferred law

Question 16

Dicey disagrees with Constitutional statutes

Question 17

Miller 1

Answer 17

Gov can not trigger Article 50 without P approval
Giv cannot sidestep AoP= unlawful use of exec power

Question 18

How does PS relate to P accountability?

Answer 18

P accountability= power to hold G to account

Milller 2- SC held that the principle of PS= encompasses P accountability of G

Question 19

Is legilsation a cooperative enterprise?

Answer 19

L is not coopertive and comes from G
Timetabling= controlled by G so P scrutiny= difficult

Question 20

What does this mean for PS?

Answer 20

G power in proposing L somewhat limits PS as EX controls what is debated in the Commons