Week 7 Public: Parliamentary Sovereignty II

What does the Human Rights Act 1998 (HRA) do?

It gives domestic legal effect to the ECHR rights, allowing individuals to rely on them in UK courts.

How is the ECHR different from the EU?

The ECHR is part of the Council of Europe; the EU is a separate organization.

What does Section 2(1) of the HRA state?

Courts must "take into account" decisions of the European Court of Human Rights when interpreting Convention rights.

What does Section 3(1) of the HRA require?

Primary and subordinate legislation must be interpreted to be compatible with Convention rights "so far as possible."

What does Section 4(2) of the HRA allow?

Courts can issue a "declaration of incompatibility" if legislation is incompatible with Convention rights—but it is not binding on Parliament.

Is Section 4 compatible with Parliamentary Sovereignty?

Yes. It respects PS by not giving courts the power to strike down legislation, only to issue non-binding declarations.

What is Elizabeth Adams' view of Section 4?

Section 4 acts as a "double filter mechanism," ensuring careful judicial discretion.

What is happening with the British Bill of Rights plan?

The current Labour government has abandoned the plan to introduce it.

What legal problems arose from conflicts between EU Law and UK Law?

EU Law had supremacy over UK law (Costa v Enel), clashing with the principle of Parliamentary Sovereignty.

What did the European Communities Act 1972 (ECA) do?

It incorporated EU law into domestic law, ensuring its supremacy in the UK legal system.

What did Factortame (No.2) establish?

Courts could disapply UK law conflicting with EU law, but Parliament could repeal the ECA to restore full sovereignty.

What did Wade say about Factortame (No.2)?

It was a "constitutional revolution" where judges departed from traditional Parliamentary sovereignty.

How do courts reconcile Parliamentary Sovereignty and the Rule of Law?

Courts interpret legislation compatibly with the rule of law, sometimes narrowly, to uphold democracy and accountability.

What is an example of courts defending the rule of law against Parliament?

R (Evans) v Attorney-General — Prince Charles' letters were released despite the Attorney-General's veto.

What is primary legislation?

Laws passed directly by Parliament (Acts), scrutinised through formal processes and given Royal Assent.

What is secondary legislation (delegated legislation)?

Laws made by ministers under authority given by Acts of Parliament, mainly through statutory instruments (SIs).Laws made by ministers under authority given by Acts of Parliament, mainly through statutory instruments (SIs).

Why is there concern about secondary legislation?

It often lacks transparency and scrutiny; Parliament has limited ability to amend or reject SIs.

How often are statutory instruments rejected?

Very rarely—only 16 since 1950, none by the House of Commons since 1979.

What is the role of the House of Lords in legislation?

Revising and scrutinising bills, but cannot veto them (especially after the 1911 and 1949 Parliament Acts).

What is the Salisbury-Addison convention?

The House of Lords does not block legislation promised in the government's election manifesto.

What major reforms have affected the House of Lords?

The House of Lords Act 1999 removed most hereditary peers; the Constitutional Reform Act 2005 further reformed judicial functions.

What are criticisms of the House of Lords today?

It is too large (~800 peers) and still includes hereditary peers, making it hard to justify democratically.

What is one proposal for reforming the House of Lords?

Replace it with an "Assembly of the Nations and Regions" to better reflect democratic legitimacy.

What are some key developments challenging the traditional view of Parliamentary Sovereignty?

The Human Rights Act, constitutional statutes, EU Law experience, the Rule of Law, and court decisions like Jackson.

What is the "manner and form" theory (related to Jackson)?

Suggests Parliament can bind itself procedurally (e.g., requiring special procedures for future legislation) without limiting substantive sovereignty.

What is Parliamentary sovereignty?

Parliament can make or unmake any law, and no person or body can override or set aside its legislation.

What is A.V. Dicey’s classic definition of Parliamentary sovereignty?

"Parliament has the right to make or unmake any law whatever; and... no person or body is recognised... as having a right to override or set aside the legislation of Parliament."

Name three key characteristics of Parliamentary sovereignty.

• Unlimited legislative authority

• No Parliament can bind its successors

• Judicial obedience: Courts must apply Acts of Parliament

How did Parliamentary sovereignty develop historically?

Gradually, especially after the Glorious Revolution (1688); reinforced by the Bill of Rights 1689.

What did the Bill of Rights 1689 establish?

That the monarch cannot override Parliament.

Traditionally, how have courts treated Parliamentary supremacy?

Courts respected it and could not strike down Acts of Parliament.

How did the case Factortame (1990) challenge Parliamentary sovereignty?

UK courts disapplied an Act of Parliament conflicting with EU law — showing an "apparent limitation" on sovereignty.

What does the Human Rights Act 1998 allow courts to do regarding legislation?

Courts can issue declarations of incompatibility but cannot invalidate Acts of Parliament.

Quote about the Human Rights Act’s impact on sovereignty.

"The Human Rights Act introduced a measure of judicial oversight, without undermining the formal supremacy of Parliament."

What is devolution's impact on Parliamentary sovereignty?

Devolved legislatures (Scotland, Wales, Northern Ireland) exist but remain legally subordinate to Westminster.

What is the "entrenchment debate" regarding sovereignty?

Whether Parliament can create "protected" (constitutional) statutes that future Parliaments cannot easily repeal.

What did Lord Steyn say in Jackson v Attorney General (2005)?

The supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law."

How did Brexit affect Parliamentary sovereignty?

Brexit (EU Withdrawal Act 2018) reasserted Parliament’s full legislative control.

What modern factors complicate absolute Parliamentary sovereignty?

Rights protection, devolution, and globalisation pressures.

Key quote on courts' duty regarding Acts of Parliament.

"Judges must apply Acts of Parliament, regardless of whether they consider them unjust or unconstitutional."

Quote on Factortame and EU law.

"The decision represented a striking instance of the courts declining to apply an Act of Parliament."

Quote about courts interpreting legislation under the Human Rights Act.

"The Act introduced a statutory requirement for courts to interpret legislation compatibly with Convention rights, so far as possible."