WS 3 - Parliamentary Supremacy

Question 1

1) Parliamentary supremacy, as formulated by ACVDicey, is the principle that:

Answer 1

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

Question 2

i. Art 9 Bill of Rights 1689

Answer 2

: ‘freedom of speech and debates in proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’

Question 3

ii. Enrolled Act Rule: Cases

Answer 3

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

Question 4

3) ARGUMENT:

Answer 4

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)

Question 5

Points that support the unlimited legislative competence of Parliament

Answer 5

a. Alter the Constitution:
b. Override constitutional conventions
c. Alter/override the Royal Prerogative
d. Override International Law
e. Operate retrospectively

Question 6

a. Alter the Constitution

Answer 6

i. Act of Settlement 1700 – establishing the independence of the judiciary
ii. European Communities Act 1972 – incorporating EC law into the UK

Question 7

Override constitutional conventions

Answer 7

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

Question 8

Alter/override the Royal Prerogative

Answer 8

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:

Question 9

Override International Law

Answer 9

i. Cheney v Conn – tax statute prevailed over Geneva Convention

Question 10

Operate retrospectively

Answer 10

i. War Damage Act 1965 overturns Burmah Oil v Lord Advocate – Crown not liable for previous war damage

Question 11

iii. Attorney-General v De Keyser’s Royal Hotel:

Answer 11

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

Question 12

iv. R v Secretary of State for the Home Dept, ex p Fire Brigades Union

Answer 12

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.

Question 13

Ellen Street Estates v Minister of Health

Answer 13

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.

Question 14

Thoburn v Sunderland City Council

Answer 14

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

Question 15

Traditional rule about whether Acts of Parliament will be questioned or set aside by another body

Answer 15

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

Question 16

Counter argument against Acts of Parliament not being questioned by another body

Answer 16

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.

Question 17

Main Arguments against Parl Suprem?

Answer 17

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

Question 18

What is the manner and form argument?

Answer 18

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:

Question 19

i. A-G for New South Wales v Trethowan:

Answer 19

entrenchment is possible (but only a Privy Council case)

Question 20

ii. Manuel v AG

Answer 20

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)

Question 21

iii. Minister of the Interior v Harris [1952]:

Question 22

Bribery Commissioner v Ranasinghe (1965)

Answer 22

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

Question 23

European Union Act 2011

Answer 23

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.

Question 24

a. Act of Union 1707

Answer 24

obiter comments by the Scottish Court of Session (MacCormick v Lord Advocate 1953) suggested that the Westminster Parliament was bound

Question 25

Devolution

Answer 25

b. PS has been qualified by the DEVOLUTION of power to Scotland – Scotland Act 1998 (also to Wales – Government of Wales Act 1998). Westminster Parliament now faces huge political obstacles in its ability to legislate for Scotland. While it could legally repeal, this would be politically impossible.

i. Scotland: health, education and legal affairs are devolved. Some areas of taxation
ii. Welsh Assembly: Delegated, but following a referendum on March 2011, can make primary legislation in certain areas

Question 26

Reversing colonisation

Answer 26

c. The Acts of Independence enacted in 20th century have in practical sense removed the power of Parliament to reverse decolonisation

Question 27

Henry VIII clauses

Answer 27

d. Henry VIII Clauses: Government sometimes adds a provision to a Bill which enables the Government to repeal or amend it after after it has become an Act of Parliament. The provision enables the amendment of primary legislation using delegated (or secondary) legislation. (so named due to statute of proclamations 1539, which gave Henry VIII power to legislate by proclamation)

Question 28

What did denning say about parls right to expressly repeal anything

Answer 28

e. Further – although all these constraining acts of Parliament may legally be repealed, in reality “legal theory must always give way to practical policies” (Lord Denning in Blackburn v AG)

Question 29

Elective dictatorship

Answer 29

f. Parliament just rubber stamps Govt Measures? – Majority of MPs from governing party. Most ministers are MPs. Govt controls Parliamentary timetable. Weak House of Lords (Salisbury Convention, 1911, 1949)