Parliamentary sovereignty (general)

The Orthodox View of Sovereignty (Core rule)

- Parliament has supreme legal authority;

- it can make or unmake any law, and no court can strike down an Act of Parliament (Dicey, Elliott & Thomas).

The Orthodox View of Sovereignty (Continuing Sovereignty)

- Parliament cannot bind its successors.

- It cannot limit its own future power because sovereignty is "continuing" (Wade)

The Orthodox View of Sovereignty (Implied Repeal)

- If two Acts conflict, the later one automatically overrules the earlier one.

- An earlier Parliament cannot "entrench" a law against future change (Interpretation Act 1978, Ellen Street Estates)

The Orthodox View of Sovereignty (The Political Foundation)

- Sovereignty is a "political fact" born from the 1688 Revolution;

- it is a "rule of recognition" that judges follow, which Parliament cannot change by itself (Wade)

The "New View" (Manner and Form) (Procedural Limits)

- Parliament can change the procedure for making laws (the "manner and form") even if it can't change the substance.

- For example, it could require a 2/3 majority or a referendum for certain changes (Jennings, Heuston)

The "New View" (Manner and Form) (Redefining "Parliament")

- The "rule of recognition" can evolve.

- Parliament can redefine itself to bypass the House of Lords (Parliament Acts 1911 & 1949, Jackson v Attorney General)

The "New View" (Manner and Form) (Self-Embracing Sovereignty)

- The theory that Parliament has the power to limit itself permanently, provided it follows a valid legal procedure (Goldsworthy)

EU Law and Sovereignty (The Gateway)

- EU law entered the UK through a "conduit pipe", the European Communities Act 1972.

- It did not end sovereignty because Parliament could always repeal the Act (Miller I)

EU Law and Sovereignty (Suspending Statutes)

- UK courts took the "unprecedented step" of setting aside a UK Act (the Merchant Shipping Act 1988) because it conflicted with EU rights (Factortame (No 2))

EU Law and Sovereignty (Rule of Priority)

- Under the 1972 Act, all UK statutes must be "construed and have effect subject to" EU law.

- This effectively changed the rule of implied repeal for as long as the UK was a member (Laws LJ in Thoburn)

Constitutional Statutes (Hierarchy of Laws)

- The common law recognizes two types of laws: "Ordinary" statutes and "Constitutional statutes" (Thoburn v Sunderland City Council)

Constitutional Statutes (Protection from Implied Repeal)

- Constitutional statutes cannot be accidentally overruled by later laws.

- They can only be repealed if Parliament uses "express words" or "irresistible" language (Laws LJ)

Constitutional Statutes (Examples)

- Key constitutional laws include Magna Carta, the Bill of Rights 1689, the Acts of Union 1707, the Human Rights Act 1998, and the Scotland Act 1998

The Principle of Legality (Presumption)

- Courts assume Parliament does not intend to override fundamental rights unless it uses crystal clear, express language (Simms)

The Principle of Legality (Democratic Accountability)

- This principle forces Parliament to "squarely confront" what it is doing and accept the political cost of removing rights (Lord Hoffmann in Simms)

The Principle of Legality (Protecting Rights)

- This principle has been used to protect freedom of speech for prisoners and to prevent retrospective increases in prison sentences (Simms, Pierson)

Judicial Review and Ouster Clauses (Ouster clauses)

- These are attempts by Parliament to "oust" (block) the courts from reviewing a decision (Foreign Compensation Act 1950)

Judicial Review and Ouster Clauses (Strict Interpretation)

- Courts read these clauses very narrowly.

- A "determination" based on a legal error is treated as a "nullity," so the ouster clause doesn't apply (Anisminic)

Judicial Review and Ouster Clauses (Access to Justice)

- Access to the courts is a fundamental right.

- Fees that make it "uneconomical" for people to claim their rights are unlawful (Unison)

Executive Power vs. Parliament (Prerogative Limits)

- Ministers (the executive) cannot use "Royal Prerogative" powers to change domestic law or remove rights granted by Parliament (Miller I)

Executive Power vs. Parliament (No Frustration)

- The government cannot use its powers to make a statutory scheme redundant or "frustrate" the will of Parliament (De Keyser’s Hotel, Fire Brigades Union)

Executive Power vs. Parliament (Prorogation)

- The Prime Minister cannot suspend Parliament if it prevents Parliament from doing its job of holding the government to account without a "reasonable justification" (Miller II)

Dualism and International Law (Dualist System)

- International law and domestic law are separate.

- Treaties signed by the government do not create rights for UK citizens unless Parliament turns them into a UK law (JH Rayner)

Referendums and the Constitution (Advisory Status)

- Because Parliament is sovereign, referendums are generally "advisory" and not legally binding unless the specific Act of Parliament says otherwise (House of Lords 2010 Report)

Referendums and the Constitution (Legal Change)

- A referendum vote (like Brexit) does not automatically change the law;

- only a new Act of Parliament can authorise the legal changes needed to act on the result (Miller I)

Devolution and Sovereignty (Westminster Supremacy)

- Devolved bodies (Scotland, Wales, NI) have power, but the UK Parliament remains legally sovereign and can still legislate for those nations (Scotland Act 1998 s.28(7), Miller I)

Devolution and Sovereignty (Competence Limits)

- Devolved legislatures cannot pass laws that challenge the "unqualified legislative power" of the UK Parliament, such as letting courts strike down Westminster Acts (In re UNCRC (Scotland) Bill)

Contentious points

- whether a sovereign Parliament can pass laws that bind future Parliaments, a concept known as entrenchment

- all Acts of Parliament were considered of equal legal status. However, modern law recognises a hierarchy of statutes

- between the will of Parliament and the interpretive power of judges

- from how Westminster's sovereignty interacts with other centers of power.