Unit 3- Parliamentary Sovereignty Part 2

Question 1

What are the general Aims here? Main Principles

Answer 1

1. The Common Law
2. European Union Law
3. European Convention on Human Rights & Human Rights
   Act 1998
4. Should Parliament be Sovereign?

Question 2

1. Common Law

Answer 2

What is common law
Common law is case law (decisions from courts and tribunals). Case law has also established and developed many principles of law and equity not covered by legislation. Case law is therefore a key source of primary law

1. The Orthodox View
2. Common Law Constitutionalism
3. Could the Courts Strike Down a
   Statute?

Question 3

Common Law-
1. The Orthodox View

Answer 3

According to AV Dicey - statement

Parliament […] has, under the English
constitution, the right to make or unmake any law
whatever; and, further, that no person or body is
recognised by the law of England as having a right
to override or set aside the legislation of
Parliament

Courts cannot invalidate Acts of Parliament

Question 4

Common law constitution- Common law constitutionalism: the theory that the common law contains fundamental principles which Acts of Parliament cannot lawfully violate

Answer 4

Lorf Woolf
“Both Parliament and the courts derive their authority from the rule
of law so both are subject to it and can not act in a manner which
involves its repudiation […] ultimately there are even limits on the
supremacy of Parliament which it is the courts’ inalienable
responsibility to identify and uphold”

Question 5

The common law - the orthodox view has been endorsed by the courts

Question 6

Common law- could THE COURTS STRIKE DOWN A STATUTE?

Answer 6

Could courts strike down an Act of
Parliament that undermines the Rule of
Law?
Jackson v Attorney General [2005] UKHL 56
Baroness Hale at [159]: “The courts will treat
with particular suspicion (or might even reject)
any [Act attempting] to subvert the rule of law
by removing governmental action affecting the
rights of the individual from all judicial scrutiny.”
This obiter dicta suggests: ‘yes

Question 7

Common law- could THE COURTS STRIKE DOWN A STATUTE?

Answer 7

Moohan v Lord Advocate [2014]
UKSC 67

Lord Hodge at [35]: “[If] a
parliamentary majority abusively
sought to entrench its power by a
curtailment of the franchise or
similar device, the common law […]
would be able to declare such
legislation unlawful”
This obiter dicta suggests: ‘yes’

Question 8

Do Jackson & Moohan establish that there are common law
legal limits on Parliamentary sovereignty?

Answer 8

YES?
 Judges have stated that there are legal limits to what an Act of
Parliament can do.
 If true, would contradict Dicey’s definition of Parliamentary
sovereignty

NO?
 Courts have never actually struck down an Act on common law
grounds.
 Judicial comments are obiter dicta only and so are non-binding.
 Not all judges share these views (e.g. see Lords Bingham and

Question 9

Can Parliament alter its own constitution?

Answer 9

If Parliament can make or unmake any law it likes, can Parliament alter its own constitution? It appears that Parliament does have this power. Current case law determines that Parliament has the power to alter its own constitution for certain purposes. This is illustrated by the following decision of the House of Lords

CASE LAW-
Jackson v Attorney General [2006] 1 AC 262
The House of Lords had to decide whether the Parliament Act 1949, which amended the Parliament Act 1911, was invalid because it was passed without the consent of the House of Lords in accordance with the procedure contained in s 2 Parliament Act 1911. If the 1949 Act were invalid the Hunting Act 2004 would also be invalid. The House of Lords held that there is no constitutional principle, or principle of statutory interpretation, which prevents a legislature from altering its constitution in accordance with the provisions of a statute which empowers it to do so, for the purpose of altering the empowering statute.

Question 10

2. EUROPEAN UNION LAW

Answer 10

1. International law: the orthodox
   view
2. A Very Short Introduction to EU
   Law
3. EU Law v Acts of Parliament
4. What was the Impact on
   Parliamentary Sovereignty?
5. Didn’t we leave the EU?

Question 11

EU LAW- INTERNATIONAL : ORTHODOX VIEW

Answer 11

International law: law made by nation states to regulate their
relationships with each other.

The UK is dualist (not monist): international law has no automatic
effect in UK law.

Incompatibility with international law does not generally
invalidate Acts of Parliament.

E.g. Mortensen v Peters (1906) 14 SLT 227, 231 (The Lord Justice
General):
“[UK Courts cannot] decide whether an act of the legislature isultra vires [(invalid)] as in contravention of […] international law.”

Question 12

EU LAW- INTRODUCTION; WHAT IS EU LAW

Answer 12

What is the European Union?

An international organisation established by its Member States through Treaties (i.e. International Law).

EU institutions are created by Treaties to carry out EU functions –e.g. Commission, Council, Parliament and the Court of Justice of the
European Union (CJEU)

Institutions have power under the Treaties to make laws applicable
to Member States (e.g. Regulations, Directives, Decisions).
 Treaties specify subject matters EU can make law on.
 Unlike other international law in scope & effect

Question 13

The notion of Sover