Week 5- Parliamentary sovereignty Flashcards
What is the doctrine of implied repeal and why is it important?
- Where two statutes are concerned with the same area of law, the courts must apply the latter of the two statutes unless the first is a constitutional statute and the second makes no express provision for the abrogation of the first
- the doctrine is important so that the courts adjudicate in a way which is consistent with the government of the day rather than allowing parliament to be bound by an earlier statue which it has chosen to abrogate.
What long-established suggestion about parliaments sovereignty was confirmed in section 18 of the 2011 EU act??
-Section 18 of the EU act 2011 declared that EU law has effect in the UK only by reason of the ECA 1972 or any other UK act. This confirmed the long-established rule based on the dualism of national and international law, by which treaties entered into by the government have effect in national law only when parliament has authorised this. This shows that the ECA 1972, which many suggest threatened PS, was authorised by parliament themselves by enacting the European act into British law.
What is Dicey’s simple and orthodox understanding of parliamentary sovereignty?
-“Parliament … has, under the English constitution, the right to make 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
What is held to be by Wade and others the only limitation on parliaments sovereignty when enacting laws?
-The only theoretical limitation to parliaments sovereignty is that it cannot limit its own sovereignty ie by binding a future parliament to an act of parliament.
What is legal sovereignty/ manner and form sovereignty?
-Some authors like Wade recognise that for parliament to be truly sovereign, it should have the legislative power to change its manner and form, by altering the law about itself and the operation of its acts, just the same as the law about anything else
What does Wade say about the paramount importance of judicial obedience as a principle of the common law?
“The rule of judicial obedience is in one sense a rule of common law, but in another sense- which applies to no other rule of common law- it is the ultimate political fact upon which the whole system of legislation hangs. Legislation owes its authority to the rule, the rule does not owe its authority to legislation. To say that parliament can change the rule merely because it can change any other rule, is to put the cart before the horse.”
What does Heuston say about the manner and form understanding of parliamentary sovereignty??
Heustons view of sovereignty entails according parliament unfettered power, exercised by ordinary enactment, to alter the “manner and form” required for future legislation. He therefore asks the question that why should parliament be able to enact any laws it wishes except for laws regarding the operation of parliament itself?
What does Dicey’s theory of PS suggest about the ECA 1972, and how does it resonate in Allan’s work?
In theory the ECJ and EU law should never have any overriding authority over our domestic law, and domestic courts should be unrestrained in applying UK statutes. This is argued by Allan, who says “British judges sit to administer the British constitution: they cannot give unconditional allegiance to the EEC, as a superior source of law, unless they are confident with our constitutional commitment to British democracy” , disagreeing with the precedent set by Factortame 2 (explained later).
In what ways could the manner and form of parliament be changed according to Barber/ Heuston??
-Current parliaments can use their legislative powers to change the form and manner of parliament; not only was it true that what parliament enacts is law, but now parliament may require referendums or majority votes to change laws (binding future parliaments) rather than just two houses and the royal assent. This means that parliament can require 2/3 majorities for in referendums or votes on bills to be required if they wanted it to.
What argument does Barber make with regards to the ‘death’ of parliamentary sovereignty?
- PS was a legal rule which existed in the conditions of the courts inability to disapply an act of parliament coupled with the rule of implied repeal, and therefore parliament could effectively not impose limits on themselves.
- The enactment of the ECA 1972 began the binding of parliament and the death of orthodox sovereignty, as it gave primacy to EU law over our domestic law, when our law could not be construed as compatible with EU law.
- Parliament bound itself from 1972 and would remain bound until the repeal of the ECA 1972
- It took until Factortame and the MSA 1988 to illustrate the death of PS, when the MSA could not be construed as compatible with EU law and was temporarily suspended as per the judgement of the ECJ
How did judges attempt to justify the outcome of Factortame 1?
Statutory construction- The Lords argued that PS would be upheld and that the ECA 1972 helped to clarify the meaning of the MSA 1988, which would allow compatibility between the two statues rather than the conflict and dis-application by domestic courts of the later act (departing from implied repeal) authorised by the ECJ
What was the facts and significance of Factortame 2
Facts- the domestic courts introduced a temporary injunction and suspension of the MSA 1988 because it conflicted with the ECA 1972
Significance- Lord Bridges powerful judgement dictated that whatever limits to parliaments sovereignty existed were voluntarily accepted by parliament through the enactment of the ECA.
- ECJ Precedence showed limitations to sovereignty were possible even before the UK joined the EEC and therefore there could be no shock as to the questionability of parliament sovereignty.
- Statutory construction as argued in Factortame 1 would give unreasonable extended meaning to the MSA 1988 when in reality it was incompatible with the respective EU law, and therefore UK law became subordinate to EU law here, with the courts dis-applying a UK statute.
What do Lord Mance and Neuburger say in HS2 with regards to parliamentary sovereignty?
-Constitutional instruments, as established in Thoburn, such as the bill of rights 1689, magna carta, ECA 1972, HRA 1998 and CRA 2005, fit alongside constitutional principles which don’t exist as statues (PS for example) and in enacting these constitutional laws, parliament could not have been taken to abrogate these long established principles. EU law CANNOT take primacy over domestic law in every case without defying pillars of our constitution.
What did the parliament act 1911 do?
- The act ended the power of the Lords to veto any public bill in parliament introduced in the commons, other than a bill containing any provision to extend the maximum duration of parliament beyond 5 years
- -Money bills in particular can be receive royal assent without the consent of the Lords, provided it was sent at least a month before the end of session and is not amended by the Lords within the calendar month.
What did the Parliament act 1949 do?
-The 1949 became in essence bound to the 1911 by amending the wording of the 1911 act, to reduce the delay to one year between the second reading of the bill and the royal assent.