Challenges to Parliamentary Sovereignty (L12) Flashcards
(50 cards)
what are the 4 modern challenges to PS
-Human rights law
-Common law ‘fundamental’ principles/rights
-EU Membership and Brexit
-Devolution
what is the sovereign law in the UK on human rights
-Human Rights Act 1998
what are the 2 main constitutional parts of the HRA 1998
-interpretive duty s.3(1)
-declarations of incompatibility s.4(6)(a)
what is said in s.3(1) HRA 1998 relating to interpretive duty
-‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights
what is said in s.4(6)(a) HRA 1998
A declaration of incompatibility ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given
what does s.3(1) Interpretive duty and s.4(6)(a) declarations of incompatibility mean
-in regards to Human Rights, go to s.3 and interpret primary legislation in a way that is compatible with ECHR/ convention rights
-if this is not possible, go to s.4(6)(a) … EXPLAINNN
what does the HRA 1998 do for PS (3)
(i) allows courts to review the substantive content of an AoP (eg Nicklinson (2014) on assisted dying)
(ii) allows courts to ‘depart from’ the actual words Parliament has
used (eg R v A (2001); Ghaidan (2004))
(iii) allows courts to signal incompatibility with ECHR rights to Parliament / government (who may or may not respond!)
(eg prisoner voting; Hirst (2001); Chester (2014))
what is the case example for HRA 1998 allowing courts to review the substantive content of AoP
-Nicklinson (2014) on assisted dying
what is the case example for HRA 1998 allowing courts to ‘depart from’ the actual words Parliament has used
-R v A (2001); Ghaidan (2004)
what is the case example for HRA 1998 allowing courts to signal incompatibility with ECHR rights to Parliament/ government (who may or may not respond)
-eg prisoner voting in Hirst (2001) and Chester (2014)
does the HRA 1998 formally preserve PS
- yes BUT
(i) allows courts to review the substantive content of the AoP
(ii) allows courts to ‘depart from’ the actual words Parliament has used
(iii) allows courts to signal incompatibility with ECHR rights to Parliament/ government
what is the view of the judiciary on PS and HR according to Lord Neuberger
The revolutionary effect of the 1998 Act is, in summary terms, threefold…
- First, Judges are now called upon more frequently to rule on moral and political issues, given that is what human rights involve….
- Secondly, Judges must perform a quasi-statute-writing function [by virtue of s.3 of the 1998 Act]
- Thirdly, under section 4 of that Act, Judges must tell Parliament when legislation cannot be made to comply and, with one exception (prisoners’ votes), it has done
so.
what does Lord Neuberger argue is the first revolutionary effect of the 1998 HRA
- First, Judges are now called upon more frequently to rule on moral and political issues, given that is what human rights involve….
what does Lord Neuberger argue is the second revolutionary effect of the 1998 HRA
- Secondly, Judges must perform a quasi-statute-writing function [by virtue of s.3 of the 1998 Act]….
what does Lord Neuberger argue is the third revolutionary effect of the 1998 HRA
- Thirdly, under section 4 of that Act, Judges must tell Parliament when legislation cannot be made to comply and, with one exception (prisoners’ votes), it has done
so.
what is said on PS and HR in the case of UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill Reference [2021] UKSC 42
-Parliament can itself qualify its own sovereignty, as it did when it conferred on the courts the power to make declarations of incompatibility with rights guaranteed by the ECHR, under section 4 of the Human Rights Act. The Scottish Parliament, on the other hand, cannot qualify the sovereignty of Parliament’ [50]
what is said in Dr Bonham’s case 1609 regarding PS and Common Law Limits
-when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void
-basically, AoP should be overruled by common law if it is against reason, repugnant or impossible
what case continues the views set out in Dr Bonham’s case (1609) in regards to PS and Common Law Limits
-Jackson 2005
-states PS is a ‘construct of the common law’ and ‘courts may have to qualify’ it if faced with a challenge to a constitutional fundamental (like judicial review)
give a case example for ‘could be fundamental common law PRINCIPLES’
-UNISON (2017) ‘access to justice’
give a case example for ‘could be fundamental common law RIGHTS’
-Simms (2000
what was said in Simms (2000)
-PS= Parl can, if it chooses, legislate contrary to fundamental principles of human rights….
-only political not legal constraints
But principle of legality means Parl must squarely confront what it is doing and accept the political cost.
-Fundamental rights cannot be overridden by general or ambiguous words.’
can common law be a limited constraint
-there is NO case where courts have actually ‘struck down’ an AoP using common law
-scope of common law rights can be limited
give 2 examples of cases showing that the scope of common law rights can be limited
Eg Moohan (2014) – no CL right to vote
Eg PRCBC (2022) – no CL right to citizenship
what was said in Moohan (2014)
‘I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful….’ [35]
