WS 3 - Parliamentary Supremacy Flashcards
1) Parliamentary supremacy, as formulated by ACVDicey, is the principle that:
a. Parliament is the supreme law making body, and can ENACT AND REPEAL LAWS ON ANY SUBJECT
b. No Parliament may be bound by a predecessor nor bind a successor
c. No other person/body may question the validity of an act of Parliament
i. Art 9 Bill of Rights 1689
: ‘freedom of speech and debates in proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’
ii. Enrolled Act Rule: Cases
Edinburgh & Dalkeith Railway v Wauchope (1842) – once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void.
1. Pickins v BRB – Lord Reid confirms courts have no power to disregard an Act of Parliament, or to investigate proceedings which had taken place in Parliament
3) ARGUMENT:
a. The traditional School, represented by AV Dicey, presents very forceful arguments that parliamentary supremacy remains INTACT
b. But –
i. There is a new school embodied by Steyn in R v Jackson: ‘The classic account given by Dicey can now be seen to be OUT OF PLACE in the UK”
ii. The doctrine of PS has been qualified and eroded to such a degree that from a practical perspective, Parliament is no longer supreme and can no longer do as it pleases, because of domestic and European limitations (particularly ECA 1972; HRA 1998; Acts of Devolution; Acts of Union)
Points that support the unlimited legislative competence of Parliament
a. Alter the Constitution:
b. Override constitutional conventions
c. Alter/override the Royal Prerogative
d. Override International Law
e. Operate retrospectively
a. Alter the Constitution
i. Act of Settlement 1700 – establishing the independence of the judiciary
ii. European Communities Act 1972 – incorporating EC law into the UK
Override constitutional conventions
i. Madzimabuto v Lardner Buke – statute overrode the convention of not legislating for a former colony
ii. Fixed-term Parliaments Act 2011 removes the power of the Crown to dissolve Parliament
Alter/override the Royal Prerogative
i. Crown Proceedings Act 1947 – removed immunity of the Crown from claims in tort or contract
ii. Fixed Term Parliament Bills Act: If enacted, will remove the power of the monarch to dissolve Parliament by requiring Parliament to sit for a fixed 5-year term
iii. Attorney-General v De Keyser’s Royal Hotel:
iv. R v Secretary of State for the Home Dept, ex p Fire Brigades Union:
Override International Law
i. Cheney v Conn – tax statute prevailed over Geneva Convention
Operate retrospectively
i. War Damage Act 1965 overturns Burmah Oil v Lord Advocate – Crown not liable for previous war damage
iii. Attorney-General v De Keyser’s Royal Hotel:
The Defence Act had not abolished prerogative power, but had put it into abeyance. Hotel taken for wartime use by the War Office during the First World War. The Lesees of the hotel sought compensation under the Defence Act 1842, req and comp. Govt argued prerogative to req land. THE COURT HELD that the terms of the Defence Act, whilst not expressly abolishing this prerogative power, had put the power into abeyance
iv. R v Secretary of State for the Home Dept, ex p Fire Brigades Union
Act of Parliament prevented prerogative being used. Although the statutory scheme had not been implemented (one to compensate victims of crime), the fact that it had been approved by Parliament prevented the prerogative being used to introduce a less generous scheme.
Ellen Street Estates v Minister of Health
2) The DOCTRINE OF IMPLIED REPEAL
a. Ellen Street Estates v Minister of Health: A later statute will impliedly repeal an earlier one where their content is inconsistent. Court of Appeal dismissed the claim because it considered that the later Housing Acts impliedly repealed the 1919 Act to the extent of any inconsistency between them.
Thoburn v Sunderland City Council
i. Thoburn v Sunderland City Council: Laws LJ – “ordinary statutes may be impliedly repealed. Constitutional statutes may not.” Constitutional statutes are those which:
1. Condition the relationship between citizen and state
2. Change the scope of fundamental constitutional rights
Traditional rule about whether Acts of Parliament will be questioned or set aside by another body
3) Proceedings in, and acts of parliament WILL NOT BE QUESTIONED/set aside/invalidated by another body
a. Supported by the following authorities: Bill of Rights 1689; Art 9; Enrolled Act Rule; Pickin v British Railway
Counter argument against Acts of Parliament not being questioned by another body
b. But – consider also here the ‘against’ argument: Parliaments supremacy has been detracted from. For example – Lord Steyn obiter comments in Jackson v AG judgement suggested where Parliament legislated in a manner CONTRARY TO THE RULE OF LAW, the courts will refuse to uphold such legislation. This indicates that the Rule of Law would take precedence over PS.
Main Arguments against Parl Suprem?
1) Domestic Limitations . Henry VIII . Act of Union . Devolution . Manner and Form Debate . Limits on doctrine of implied repeal . Rule of Law 2) European Limitations . Membership of EU . Impact of HRA . Express repeal of ECA 1972 or HRA 1998
What is the manner and form argument?
1) MANNER & FORM DEBATES: The notion that Parliament cannot be bound by a previous Parliament is increasingly less certain:
a. If legislating by a future Parliament can be made easier (Parliament Acts 1911 [Cannot reject money bills, and only delay other bills for 2 years] and 1949 [Reduces delaying power to1]), why can it not also be made harder? (e.g. by stipulating a certain majority of votes to pass/repeal a statute). Argument supported by:
i. A-G for New South Wales v Trethowan:
entrenchment is possible (but only a Privy Council case)
ii. Manuel v AG
obiter comments – the courts might be willing to enforce/follow such manner and form requirements imposed by earlier statute (case of indigenous man saying Act of Parl to amend Canadian constit needed consent of indigenous people as well)
iii. Minister of the Interior v Harris [1952]:
Bribery Commissioner v Ranasinghe (1965)
Privy Council: Bribery Amendment Act 1958 = Bribery Commission responsible for bringing prosecutions against bribery to the Bribery Tribunal (established by this act). R convicted and sentenced to a term of imprisonment by tribunal. Appeal made to SC of Sri Lanka. Said BAA 1958 had not followed amendment constitution procedure: 2/3 HoReps and Speaker’s certificate. PRIVY COUNCIL HELD: Ceylon Constitution did prescribe the procedure for law-making and that procedure had not
European Union Act 2011
A referendum and Act of Parliament are needed before certain powers are ceded to the EU. Ss. 2, 3 and 6 state that a referendum required to transfer significant powers to the EU from the UK.
1. Taking Ivor Jenning’s line, are we moving from Parl Sov towards manner and form theory of Parl’s role in legislating? “Referendum locks” are implicitly entrenched.
a. Act of Union 1707
obiter comments by the Scottish Court of Session (MacCormick v Lord Advocate 1953) suggested that the Westminster Parliament was bound
