Public - Parliamentary Sovereignty

What is the overall principle of parliamentary sovereignty?

Parliament has unlimited sovereignty, acts of parliament are the supreme form of law in the uk Parliament can make or unmake any law

What are the 3 key rules of Dicey's theory of parliamentary sovereignty?

1. Parliament is the supreme law making body, can make laws about anything

2. No Parliament may not be bound by a predecessor or bind a successor

3. No person or body may question the validity of an act of parliament

What does sovereignty mean?

There are no substantive legal limitations on the legislation Parliament may enact

Can Parliament, if it chooses, legislate contrary to human rights and contrary to public international law?

Yes if it wanted to

Where can parliament legislate for?

Territory beyond the jurisdiction of the UK - even if it conflicts with international law

How can parliament legislate?

Retrospectively & prospectively

What is the rule that no parliament may be bound by a predecessor or bind a successor in Dicey's theory of parl sov?

- There is no entrenchment of key constitutional statutes

- The UK constitution could be changed by a single act of parliament through repeal or through new law

How can repeal take place?

Expressly or impliedly

How can express repeal occur?

When legislation passed specifically states an intention that an earlier act should be replaced

Often to consolidate & simplify legislation

How can implied repeal occur?

When a new act is partially or wholly inconsistent with a previous act

Previous act is repealed to the extent of the inconsistency

When will the court draw the implication that parliament intended to repeal an earlier statute?

Where two statutes are irreconcilable

What is the effect of implied repeal?

Parliament cannot bind its successors so as to prevent statute from being impliedly repealed by a later one

Reflection of view that sovereignty takes a continuing form with each new Parliament - each parliament has equal freedom to create new legislation

What is the rule of Dicey's theory of parliamentary sovereignty that no person/body may question the validity of an act of parliament?

- Neither manner or substance of laws should be reviewable by the courts

- Courts cannot quash or invalidate primary legislation

- No JR of the way a statute went through parliament

What is the enrolled bill rule?

If a bill has been enrolled (has become an Act of Parliament), it is impossible to go behind that (eg by scrutinising its enactment via procedural irregularities)

What is the effect of parliamentary sovereignty on the character of the constitution?

UK has a potentially highly flexible constitution - authority of statute + impossibility of entrenchment

What is the issue of potential procedural limitations on parliamentary sovereignty?

Entrenchment in manner & form

Whether a parliament could introduce procedural requirements to make it harder for a subsequent parliament to change the law - e.g. requiring super majority in parliament

What must parliament do if it wishes to enact laws which undermine fundamental rights?

It must state its intention in crystal clear terms - otherwise there is a presumption that parliament did not intend to restrict rights.

What are ouster clauses?

Clauses which seek to oust the court's jurisdiction to scrutinise governmental actions through judicial review

Why is the UK constitution so flexible in nature?

There are no entrenched rules

What is Manner and form entrenchment?

The imposition of procedural obstacles or hurdles to make a change in the law more difficult (but not impossible).

What kind of legislative state is the UK?

Dualist

Which kind of law has higher status in the UK?

Domestic law as it was created by the sovereign parliament

What must parliament do if it wishes international laws/systems/standards to be enforced?

It must be incorporated into the UK legal system via statute

What are the key provisions in the European Communities Act regarding sovereignty?

- EU law is given legal effect to in the UK without further enactment

- Questions of law relating to the EU should be determined according to ECJ principles

- Supremacy of EU law over domestic law

- Any enactment passed or to be passed construed & have effect subject to EU law.

What was the issue of primacy of EU law?

Created tension with the principle of parliamentary sovereignty

Principle that parliament cannot bind itself to prevent a later statute from impliedly repealing an earlier statute - did the ECA bind future parliaments?

What was established in the key case on EU law vs parliamentary sovereignty (Factortame)?

Courts could suspend an act of parliament where they were required to do so by EU law

EU law could override conflicting UK statutes enacted after 1972

Parliament had voluntarily signed up to a limitation on its own sovereignty

What was the key principle established after case law regarding the impact of EU membership on parliamentary sovereignty?

Parliament can impose limitations on itself but it cannot prevent future parliaments from removing those limitations

it IS possible for one parliament to have bound future parliaments (Parliament in 1972 bound later parliaments)

BUT the binding effect only lasted as long as parliament wished to be bound by it

Does the policy of devolution undermine the sovereignty of parliament?

No - the devolution legislation stipulates that ultimate sovereignty resides in Westminster

Could Westminster parliament reverse the policy of devolution if it wanted to?

Yes, legally.

Politically obviously not, would cause a constitutional crisis

Is the rule reinforced by the Sewel convention legally enforceable?

No

What is the tension between the HRA and parliamentary sovereignty?

HRA has sections in it which require the UK courts to take into account the rulings of the ECHR

Also applies a strong obligation on UK courts to interpret EXISTING legislation in an ECHR compatible way

What did the creation of the HRA demonstrate about the laws in the UK?

Confirmed the hierarchy of legislation - HRA as a constitutional statute has a higher status than any ordinary statute

Other statutes had to be read & enforced in line with HRA

What power did the HRA grant the courts?

Power to make a declaration of incompatibility if any provision in a statute is incompatible with a convention right

What kind of power is a declaration of incompatability?

Political rather than legal

Not the same as a strike down , does not invalidate the law

Flags that the law is incompatible, matter of political judgment for ministers as to how to act

How can the declaration of incompatibility mechanism be described?

Indirect form of constitutional review of legislation - politicians do usually take steps to remedy incompatibility

Does the HRA fundamentally undermine the supremacy of parliament?

No - parliament can undo it if it wishes to but as long as it remains in place, it will have dominant effect as a constitutional statute