Parliamentary sovereinty

What is parliamentary sovereignty?

Parliament has the legal power to make or unmake any law, and no court can override or invalidate an Act of Parliament.

Who is most closely associated with the orthodox theory of parliamentary sovereignty?

AV Dicey.

What are Dicey’s three main features of parliamentary sovereignty?

Parliament can legislate on any matter, no Parliament can bind its successors, and courts cannot question the validity of Acts of Parliament.

What does it mean that Parliament can legislate on any matter?

There are no legal limits on the subjects Parliament may regulate.

What does it mean that no Parliament can bind its successors?

A later Parliament must remain free to repeal or amend laws made by an earlier Parliament.

What does it mean that courts cannot question Acts of Parliament?

Courts must apply valid Acts of Parliament, even if they disagree with their content.

What is the enrolled bill rule?

Once a bill is properly recorded as an Act of Parliament, courts will not question whether parliamentary procedure was correctly followed.

What case is linked to the enrolled bill rule?

Edinburgh and Dalkeith Railway Co v Wauchope.

What is express repeal?

Where Parliament clearly states that an earlier statute is repealed.

What is implied repeal?

Where a later Act conflicts with an earlier Act, the later Act takes priority.

Why is implied repeal important to parliamentary sovereignty?

It protects the idea that later Parliaments cannot be bound by earlier ones.

What is a constitutional statute?

A statute of major constitutional importance, especially one affecting rights or state institutions.

What case introduced the idea of constitutional statutes?

Thoburn v Sunderland City Council.

Why are constitutional statutes important?

They cannot be impliedly repealed; they can only be repealed expressly.

Does the idea of constitutional statutes abolish parliamentary sovereignty?

No. Parliament can still repeal them expressly, but courts treat them as constitutionally special.

What is the “manner and form” argument?

The idea that Parliament may be able to bind future Parliaments as to the procedure required to make certain laws.

Why does the manner and form argument challenge Dicey?

It suggests Parliament may control how future legislation is made, even if it cannot control what future legislation says.

What is the difference between substantive limits and procedural limits on Parliament?

Substantive limits restrict what Parliament can legislate about; procedural limits restrict how legislation must be passed

Does the UK orthodox view accept substantive limits on Parliament?

No. The orthodox view says Parliament has no legal limits on the content of legislation.

What is the Human Rights Act 1998?

An Act giving domestic effect to rights from the European Convention on Human Rights.

Does the Human Rights Act allow courts to strike down Acts of Parliament?

No. Courts cannot invalidate primary legislation under the Human Rights Act.

What is a declaration of incompatibility?

A court statement that an Act of Parliament is incompatible with Convention rights.

Does a declaration of incompatibility affect the validity of an Act?

No. The Act remains legally valid unless Parliament chooses to amend it.

Why does the Human Rights Act preserve parliamentary sovereignty?

Because final authority remains with Parliament, not the courts.

What does section 3 of the Human Rights Act require?

Courts must interpret legislation compatibly with Convention rights, so far as possible.

Why can section 3 be constitutionally significant?

It gives courts a strong interpretive power that may significantly affect the meaning of legislation.

What was the constitutional significance of EU law before Brexit?

EU law could take priority over conflicting UK legislation while the UK was a member of the EU.

What case showed the supremacy of EU law over UK legislation?

Factortame.

Why did EU law create a challenge to parliamentary sovereignty?

Because courts could disapply Acts of Parliament that conflicted with EU law.

How was EU law supremacy reconciled with parliamentary sovereignty?

It was based on Parliament’s own decision to enact the European Communities Act 1972.

What was the European Communities Act 1972?

The statute that gave EU law domestic effect in the UK.

The statute that gave EU law domestic effect in the UK.

It was repealed, showing Parliament could legally withdraw from the EU law framework.

What is devolution?

The transfer of powers from Westminster to Scotland, Wales, and Northern Ireland.

Does devolution legally limit parliamentary sovereignty?

No. Westminster remains legally sovereign, though politically constrained.

What is the Sewel Convention?

The convention that Westminster will not normally legislate on devolved matters without consent.

Is the Sewel Convention legally enforceable?

No. It is politically important but not legally enforceable.

What case confirmed that the Sewel Convention is not legally enforceable?

Miller No 1.

What was significant about Jackson v Attorney General?

Some judges suggested that parliamentary sovereignty may not be absolute in extreme circumstances.

Does Jackson clearly abolish Dicey’s theory?

No. It raises doubts about absolute sovereignty but does not formally overturn the orthodox view.