ELS UNIT FIVE

parliamentary sovereignty

What are the three interchangeable terms used to describe Parliament's supreme law-making authority?

Parliamentary sovereignty, parliamentary supremacy and legislative supremacy.

What is parliamentary sovereignty?

The principle that the UK Parliament is the supreme legal law-making body and has the authority to make or unmake any law.

Why is parliamentary sovereignty associated with the UK's uncodified constitution?

The UK does not have a single codified constitutional document establishing a higher law that ordinary Acts of Parliament must comply with. Parliamentary sovereignty developed as a fundamental principle of the UK's constitutional system.

What are Dicey's three elements of parliamentary sovereignty?

1) Unlimited legislative competence: Parliament can legislate on any subject.

(2) The enrolled Act rule: courts cannot ordinarily question the validity of an Act of Parliament.

(3) No Parliament can bind its successors or be bound by its predecessors, reflected in the doctrine of implied repeal.

What is the relationship between parliamentary sovereignty and the rule of law in Dicey's traditional account?

arliamentary sovereignty is traditionally treated as the primary principle, while courts interpret and apply Acts of Parliament. Modern judicial dicta suggest that fundamental rule-of-law principles may qualify this traditional understanding.

What is the enrolled Act rule?

Once legislation has been formally enacted and received Royal Assent, courts ordinarily accept it as a valid Act of Parliament and do not investigate internal parliamentary proceedings to challenge its validity.

Which case is the leading authority for the enrolled Act rule?

Pickin v British Railways Board [1974] AC 765.

What is unlimited legislative competence?

The principle that Parliament can enact or repeal legislation on any subject, including legislation that changes constitutional arrangements or conflicts with previous laws.

Can an Act of Parliament override international law?

Under the traditional doctrine of parliamentary sovereignty, domestic legislation can take precedence over conflicting international obligations in domestic courts, although the UK may remain internationally responsible for breaching those obligations.

• The relevant example in these notes is Cherry v Conn [1968]

Can an Act of Parliament override a constitutional convention

Yes. An Act of Parliament can override a constitutional convention because conventions are political rules rather than legally enforceable laws.

What was the significance of Madzimbamuto v Lardner-Burke [1969]?

The House of Lords held that Parliament could legislate for Southern Rhodesia despite a convention that it would not do so without the consent of the Rhodesian Government. The convention did not legally invalidate the Act.

Can Parliament pass retrospective legislation?

Yes. Parliament can enact legislation that changes the legal consequences of past events, subject to any applicable legal constraints and the requirement that retrospective effect be sufficiently clearly expressed.

What is express repeal?

Express repeal occurs when a later Act of Parliament explicitly states that an earlier Act, or particular provisions of it, are repealed.

What is implied repeal?

Implied repeal occurs when a later Act contains provisions that are inconsistent with an earlier Act, so that the earlier provisions are treated as repealed to the extent of the inconsistency.

Why does the doctrine of implied repeal follow from parliamentary sovereignty?

It reflects the principle that one Parliament cannot bind its successors. A later Parliament must be able to change the law made by an earlier Parliament.

What is the traditional rule concerning conflicting Acts of Parliament?

Where two Acts are inconsistent, the later Act generally prevails to the extent of the inconsistency, unless a recognised exception applies.

What is a constitutional statute?

A statute recognised as having particular constitutional significance, such as one that establishes or affects fundamental constitutional rights or arrangements.

Can constitutional statutes be repealed by implication?

Generally, no. Courts presume that Parliament does not intend to repeal a constitutional statute through inconsistent later legislation unless that intention is clearly expressed or otherwise unmistakable.

How does the doctrine of implied repeal differ from express repeal?

Express repeal requires Parliament to state explicitly that an earlier law is repealed. Implied repeal is inferred from inconsistency between the earlier and later legislation, subject to the special treatment of constitutional statutes.

What are the principal potential domestic limitations on parliamentary sovereignty?

Devolution, the Acts of Union, possible limits on implied repeal, the manner and form debate, and judicial observations concerning the rule of law and fundamental constitutional principles.

How might the Acts of Union be argued to limit parliamentary sovereignty?

The Acts of Union contain provisions protecting aspects of Scotland's separate legal system and the Church of Scotland. These have prompted arguments about whether certain constitutional guarantees limit Westminster's legislative authority.

Does devolution legally remove Westminster's sovereignty

No. Under the traditional legal position, the UK Parliament retains the power to legislate on devolved matters, although political conventions and constitutional practice constrain how it exercises that power.

What is devolution?

Devolution is the transfer of legislative or executive powers from the UK Parliament and central government to institutions in Scotland, Wales and Northern Ireland.

What is the difference between devolved and reserved powers?

Devolved powers are matters on which a devolved legislature can legislate within its competence. Reserved powers remain the responsibility of the UK Parliament at Westminster.

What is the Sewel convention?

A constitutional convention under which the UK Parliament will not normally legislate on devolved matters without the consent of the relevant devolved legislature. It is politically significant but not legally binding.

What did the Miller judgments emphasise about Parliament and the executive?

The executive cannot use its prerogative powers to change domestic law or frustrate statutory rights in a way that bypasses Parliament. Government action must respect Parliament's constitutional role and sovereignty.

What is the key lesson of devolution for parliamentary sovereignty?

Devolution creates important political and constitutional constraints, but it does not generally remove Westminster's ultimate legal authority to legislate for the UK.

What is the manner and form debate?

The debate over whether Parliament can require future Parliaments to follow a special procedure before validly enacting legislation on a particular subject.

Can Parliament bind a future Parliament as to subject matter?

Traditionally, no. Parliament cannot permanently prevent a future Parliament from legislating on a particular subject or from repealing or amending an earlier Act.

What does it mean to bind a future Parliament as to subject matter?

It would mean attempting to prevent a future Parliament from legislating on a particular issue altogether.

What does it mean to bind a future Parliament as to manner and form?

It means requiring a future Parliament to follow a special procedure to enact legislation validly, rather than prohibiting legislation on that subject.

What are examples of manner and form requirements?

A two-thirds parliamentary majority, approval in a referendum, or compliance with another special legislative procedure before a law can be validly enacted.

What is the traditional argument against binding future Parliaments as to manner and form? S

Such requirements restrict the legislative freedom of future Parliaments and conflict with the principle that no Parliament can bind its successors.

What is the alternative argument in favour of manner and form requirements?

A Parliament may be unable to prevent its successor from legislating on a subject but may be able to prescribe a special procedure that the successor must follow to enact legislation validly.

What is the traditional judicial position once an Act of Parliament receives Royal Assent?

Courts ordinarily accept it as a valid Act of Parliament and do not investigate internal parliamentary proceedings to challenge its validity.

What did Lord Steyn suggest in obiter dicta in Jackson v Attorney General?

He suggested that parliamentary sovereignty was a judicially developed doctrine and questioned whether it would remain absolute in extreme circumstances, such as an attempt to abolish judicial review.

What are Henry VIII powers?

Powers granted by an Act of Parliament that allow ministers to amend, repeal or change the effect of primary legislation through delegated legislation.

Why are Henry VIII powers controversial for parliamentary sovereignty?

They allow the executive to change legislation originally enacted by Parliament, potentially weakening parliamentary scrutiny and shifting law-making power from elected legislators to ministers.

What is the main constitutional concern about Henry VIII powers?

They may undermine parliamentary accountability and the separation of powers because ministers can make substantial legal changes without the full scrutiny required for a new Act of Parliament.