Parliamentary Sovereignty

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  • Created by: K98
  • Created on: 22-05-17 22:30
Diceyan View on Parliamentary Sovereignty
“Parliament has the right to make and unmake any law… (and) no person or body… (has) the right to override or set aside the legislation of Parliament”
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Lord Bingham in Jackson v Attorney General
Parliamentary sovereignty is the “bedrock of the British constitution”
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Parliament Cannot Bind its Successors
No entrenched legislation. Each Parliament is supreme and can undo any act.
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Implied Repeal
Where two acts conflict, the courts take the later one as impliedly repealing the earlier to the extent of the inconsistency which means that the will of the later parliament prevails.
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'Enrolled Bill Rule'
It ensures that the courts cannot challenge the validity of an act of parliament once it is passed.
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Express Repeal
Parliament itself can repeal any previous legislation through an Act of Parliament. (Human Rights Act 1998, BREXIT)
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Challenge - The European Communities Act 1972 - Why?
It is a challenge to Parliamentary sovereignty because for the first time in our constitutional history law not made in the UK become directly applicable here.
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Challenge - The European Communities Act 1972 - How?
This is done primarily through section 2(1), and section 2(4) of the 1972 Act.
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Challenge - The European Communities Act 1972 - Factortame II
The House of Lords dis-applied the Merchant Shipping Act 1988 because it conflicted with EU law which had been brought in under the European Communities Act 1972. Under Implied Repeal the later, UK, legislation should have prevailed.
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Challenge - The European Communities Act 1972 - How is PS upheld?
Lord Bridge suggests that Parliamentary sovereignty is upheld because the enactment of the ECA was entirely voluntary and the ECA can still be expressly repealed (BREXIT).
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Challenge - The Human Rights Act 1998 - Why?
The UK courts have to interpret legislation as to be compatible with Convention rights.
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Challenge - The Human Rights Act 1998 - How?
Primarily through section 3 and section 4. But also section 19.
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Challenge - The Human Rights Act 1998 - Section 3
The UK courts have an obligation to read primary and subordinate legislation ‘as far as possible’ to be compatible with the Convention rights. However, the courts can only go ‘as far as possible’ they cannot distort the meaning of the UK law.
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Challenge - The Human Rights Act 1998 - Section 4
A declaration of incompatibility can be made if section 3 fails. However, under s.4(6) a declaration of incompatibility does not affect the validity of the legislation and is not binding on Parliament.
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Challenge - The Human Rights Act 1998 - Section 19
Minsters must make a statement in the Houses of Parliament as to the compatibility. This statement can be that the legislation is compatible with ECHR rights or that it is probably not compatible but that the government wants it to become law.
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Challenge - The Human Rights Act 1998 - How is PS upheld?
Parliament can still make any law that it wants, the courts cannot distort the meaning of Parliament when using section 3 and a declaration of incompatibility has no binding effect on Parliament. Can be expressly repealed.
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Challenge - Devolution of Power - What is Devolution?
Devolution is where the superior body (Westminster) grants power to an inferior body (Scottish Parliament, Welsh Assembly, Northern Irish Assembly) but retains the competence to override the inferior body within the range of transferred powers.
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Challenge - Devolution of Power - Scotland (Original Position)
The Scottish Parliament was initially granted predominant legislative power with Westminster retaining legislative supremacy through the Scotland Act 1998
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Challenge - Devolution of Power - Scotland (Now)
The Scotland Act 2016, section 1 under which the Scottish Parliament and the Scottish Government are recognised as a permanent part of the UK’s constitutional arrangements. This is ultimately entrenched legislation limiting future parliaments.
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Challenge - Devolution of Power - Wales (Original Position)
Wales gained a form of executive and administrative devolution through the creation of a Welsh Assembly through the Government of Wales Act 1998
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Challenge - Devolution of Power - Wales (Now)
Gained enhanced legislative competence through the Government of Wales Act 2006, but there is a possibility that the Welsh Assembly will acquire primary legislative powers in the future, through a referendum vote and permission from Westminster.
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Challenge - Devolution of Power -Northern Ireland
The Northern Ireland Act 1998 gave Northern Ireland legislative devolution subject to some areas that the Secretary of State for Northern Ireland retains responsibility for.
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Challenge - Common Law - What is the Common Law?
Law made by judges and not by Parliament
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Challenge - Common Law - How?
Some recent statements by judges questioned the ability of Parliament to pass any law that it wants to pass by suggesting that the judges themselves could place limits on what Parliament could legally enact.
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Challenge - Common Law - Jackson v Attorney General (Lord Hope)
“Parliamentary sovereignty is no longer, if it ever was, absolute . . . It is no longer right to say that its freedom to legislate admits of no qualification whatever”
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Challenge - Common Law - Jackson v Attorney General (Baroness Hale)
“The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial powers”
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Challenge - Common Law - How much of a challenge?
The common law could become a challenge, however, the supreme court has yet to feel like it was within their power to stop Parliament from passing a piece of legislation and until they do it is questionable whether this is a legitimate threat.
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Challenge - Common Law - Jackson v Attorney General (Lord Bingham)
“the principle of parliamentary sovereignty has been recognised as fundamental in this country …judges did not by themselves establish the principle and they cannot, by themselves, change it.”
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Other cards in this set

Card 2

Front

Parliamentary sovereignty is the “bedrock of the British constitution”

Back

Lord Bingham in Jackson v Attorney General

Card 3

Front

No entrenched legislation. Each Parliament is supreme and can undo any act.

Back

Preview of the back of card 3

Card 4

Front

Where two acts conflict, the courts take the later one as impliedly repealing the earlier to the extent of the inconsistency which means that the will of the later parliament prevails.

Back

Preview of the back of card 4

Card 5

Front

It ensures that the courts cannot challenge the validity of an act of parliament once it is passed.

Back

Preview of the back of card 5
View more cards

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