UK Constitution and Parliamentary Sovereignty

Question 1

Reforms to the Current UK Constitution

Answer 1

Bogandor: More public participation in the current voting system; more decisions put to a referendum by the people. He wants a more legal constitution.

Question 2

Parliamentary Sovereignty definition

Answer 2

Absence of any legal restraint on the Legislative powers of Parliament

Question 3

The Source of Parliamentary Sovereignty

Answer 3

Jackson Case: Lord Steyn: Parliamentary Sovereignty is the construct of the Common Law

Question 4

Parliamentary Sovereignty: Traditional View

Answer 4

Dicey:

1) Parliament has the right to make and unmake any law
2) No person or body has the right to override or set aside the legislation of Parliament.

Question 5

Parliamentary Sovereignty: Modern View

Answer 5

Executive now has significant control in the law making process due to Parliaments Act. (lords delay for 1 yr)

Wade: Parliament act thought was delegated legislation and laws passed under it were invalid as per Jackson case (hunting act) (not the case by courts)

Bingham: Rejected Argument, Legislation under the parliaments act is real and effective law.

Question 6

Parliamentary Sovereignty Modern View: EU Law

Answer 6

Membership to the EU requires domestic courts to give EU law priority and supremacy: European Communities Act 1972.

Question 7

Factortame

Answer 7

Conflict between EU law and the Merchant Shipping Act. EU required no discrimination by nationality.
ECJ = Community law must be fully and uniform ally applied in all of the Member States.

Lord Bridge: So long as UK part of the EU, parliament must give way to the greater supremacy of EU Law.

Question 8

Parliamentary Sovereignty: Modern View: HRA

Answer 8

European Convention of Human Rights was signed by the UK; Cases from the Court of Human Rights have jurisprudence over UK law.

Question 9

Human Rights Act 1998

Answer 9

Brought the Convention rights into force in Domestic Law in the UK.
S.3: Law must be read compatibly with conventions
S.4: Declaration by UK Courts of a statute being incompatible with the convention.

Bradley: No power to strike down Act of Parliament but courts can deliver a wound

Lord Hoffman: Parliament can still legislate contrary to Human rights; HRA does not actually stop this.

Question 10

Parliamentary Sovereignty:Implied repeal Definition

Answer 10

If there arises a conflict between an Old statute and a new Statue, the New statute will win out and overrule and repeal the older one.

Question 11

Parliamentary Sovereignty: Entrenchment Traditional view

Answer 11

Parliament cannot be constrained by Past legislation and Past Parliaments: effectively Implied Repeal always exits

Wade: Parliament cannot fetter future parliaments. A redefinition of parliament can always be impliedly repealed.

Question 12

Parliamentary Sovereignty: Entrenchment Modern View

Answer 12

Entrenchment is possible by Parliament since effectively Parliament has the ability to redefine itself and in its redefinition, place restrictions upon itself.

Laws LJ: Thoburn case: Constitutional statutes like European Communities Act cannot be Impliedly repealed

Question 13

Devolution Acts

Answer 13

Scotland Act 1998, but what about the act of Parliament that made India a sovereign nation, could that just be repealed by any act of parliament?

Question 14

Van Gend En Loos

Answer 14

Direct effect is necessary to ensure that MS comply with the obligations within the confines of Community Law

Question 15

Costa v ENEL

Answer 15

EU law is different from ordinary national law. EU given powers by the MS- the law stemming from the treaty cannot be overridden by any domestic legal provision

Question 16

Factortame

Answer 16

• Merchant Shipping Act 1988 was in Direct conflict with EU Law
• A national Court in regards to EU law finds that a rule of national law precludes the granting of relief or creates an obstacle then the National Court must set aside that rule/law.