Flashcards in Parliamentary Supremacy Deck (72):
What are the technical limits to the legislative competence of Parliament?
- There are no limits
- Doctrine of unlimited supremacy of parliament
- Result of long struggle between the parliament + crown
Who came up with the most influential conception of Parliamentary Supremacy?
- A.V. Dicey
How did Dicey define PS?
- Right to make or unmake any law whatsoever
- No person / body is recognised by the law of England
- As having the right to override / set aside Parliament legislation
What are the 3 basic rules of Diceyan Parliamentary Supremacy Theory?
1. Parliament is Supreme Law Making Body
2. No parliament can be bound by predecessor or bind successor
3. No person / body can question validity of enactment of Parliament
Explain the act that parl. Has the right to make any law whatsoever according to Dicey?
- Parl has the right to make any law whatsoever
- There are no substantive limitations on the legislation that Parl can enact
- No legal limitations on parliament
- But there are political limitations on what they can do.
Are there subject limitations on the legislation that Parliament can pass? What was Leslie Stephensons quote about this?
- That parliament can pass a law ordering the death of all blue eyed babies
Can parliament create legislation that changes aspects of the constitution?
- Yes they can
- Ex Parte Canon Selwyn
- Validity of the Irish Church Act 1869 = 1869 challenged by priest on grounds that it disestablished his church in Ireland
- Contrary to the Act of Union with Ireland (1800).
What happened in the case of R v Secretary of State for the Home Department, ex parte Simms?
- There are no subject limits to the law making powers of Parliament
- They can limit fundamental rights
- As long as they use express language
What happened in the case of Cheney v Conn?
- It is also possible for Parliament to create statutes that conflict with public international law.
- Taxpayer challenged validty of FINANCE ACT 1964
- CONFLICT with public international law
Challenging validity of FINANCE ACT 1964
Argue that it conflicted with Geneva convention
Because some of the tax collected would go to nuclear weapon manufacture
STATUTE CAN ALTER THE CONSTITUTION
What did UNGOED-THOMAS J say in the Cheyne v Conn case?
- What the statute enacts cannot be unlawful
- Because it is the highest form of law to this country
- Is the law that prevails over every other form of law
It is not for the courts to say that a Parliamentary enactment is illegal
Explain the fact that there are No Geographical Limitations of parliaments powers?
MORTENSEN v PETERS
- Orthodox theory
States that Parliament can legislate for territory beyond the jurisdiction of the UK, even if this produces a conflict with international law.
- Captain of Norwegian ship - was convicted of fishing in the Moray Firth
- Convicted of fishing in a location that was out of bounds + contrary to the Herring Fisheries (Scotland) Act
- Held: was bound to apply the terms of the Act
- Even though it restricted beyond the 3 mile territorial limit that was recognised by the Act.
Statute overrides international law
Explain the fact that there are No Temporal Limits?
- Parliament can pass retrospective + prospective laws
- War damage Act 1965
Retrospectively NULLFIED decision in the Burmah Oil case .
Explain the fact that no Parliament May be Bound by a Predecessor or Bind a Successor?
- Parliament legally has the right to make / unmake any law whatsoever
- Parliament cannot be bound by predecessor / may amend or repeal any previous enactment
- If parliament could pass law limiting its power as institution
- Future parliament would not be supreme
What are the 2 forms of repeal?
1. Express repeal
2. Implied repeal
- Dicey >> each new parliament must enjoy same unlimited power as before it
- Therefore parliament cannot be bound by predecessors + might amend or repeal any previous enactment.
What is express repeal?
- Legislation passed
- Expressly states as intention, THAT AN EARLIER ACT SHOULD BE REPEALED
When does express repeal often happen?
- When there is a drive to consolidate + simplify legislation
- Sex discrimination act 1975
- Race relations act 1976
- Disability discrimination act 1995
- All expressly repealed and replaced by the one equality act 2010!
What is implied repeal?
- "doctrine of implied repeal"
- If there is no express repeal
- If new act is partially / wholly inconsistent w/ previous act
- The previous act repealed > to extent of inconsistency
- Vauxhall Estates v Liverpool Corporation
- Ellen St Estates v Minister of Health
What happened in the cases of
- Vauxhall Estates v Liverpool Corporation, and
Ellen St Estates v Minister of Health?
- C's claiming compensation for property that had been compulsorily purchased from them.
- According to the D's >> level of compensation was to be assessed in compliance with Housing Act 1925, and C's disagreed:
- Argued that the assessment should be calculated according more generous termsof the Acquisition of Land Act 1919,
- Expressly stipulated that its provisions were to prevail over any others passed or to be passed.
Held: it was bound to apply the terms of the later 1925 Act so the C's did not succeed! >> if they had, 1919 Act would effectively have become entrenched!
What fab quote did Maugham LJ give in the case of Ellen St Estates v Minister of Health?
- legislature cannot, according to our constitution, bind itself to the force of subsequent legislation
- If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature
Which aspect of Dicey theory gave rise to the most arguments and tension?
- If Parliament can limit its own power
What are the 3 main ways that parliament could attempt to bind itself?
1. Binding itself to content of future legislation (substantive limitation)
2. Prescribe a particular manner in which legislation can be passed / repealed (e.g. a 2/3rds majority) (binding of manner)
3. Imposing restriction that any legislation dealing with a certain subject should bear a particular form - e.g. need for express words (binding of form)
What is substantive binding - how could there be a Union Legislation?
- Arguments have been raised in the past to the effect that the Acts of Union between England and Scotland and Ireland were intended to represent a higher form of law
- And therefore should be seen as entrenched.
- Theory behind this is the fact that Acts of Union were not created by UK parliament but by English / Scottish / Irish Parl.
What happened in the case of McCormick v Lord Advocate?
- Scottish Nationalist
- Raised objection to designation of Queen Liz the 2nd
- Argued that 1st Queen of England was just that + not also of Scotland
- Application dismissed
- LORD COOPER >> obiter
- Arguments that acts of union limited PS was not definitively rejected
- But was left open for future decisions
What happened in the case of Gibson v Lord Advocate?
- Challenge to EC common fisheries policy measure
- Because it gave access to Scottish waters
- Complainant argued that this was a change in private law
- Which was not for the "evident utility" of Scots
- As required by Acts of Union
- Held: access to fisheries was not 'private law' and therefore the measure could not be challenged.
How was the British Empire gradually dismantled?
- By grants of independence
- To the old colonies (Dominions)
- Became effectively independent nations - their constitutions were established by UK Parliament acts
What is the significance of the Statute of Westminster?
- Section 4
- SOW > imposed substantial + procedural restrictions on Westminster's Parliament ability to legislate
- For former colonies.
- Raises question of how far the 1931 Parliament bound successors to adhere to requirements of section 4 of SOW
- When passing subsequent legislation
What happened in the case of British Coal Corporation v The King?
- Case re the ability of Parliament to legislate for Canada
- In breach of SOW S4
- LORD SANKEY
What happened in the case of Blackburn v AG?
- This was about UK membership of European Community
- Issue of limits on PS discussed again
- DENNING >> highlighted the distinction between legal theory and political reality.
- "can anyone imagine that Parliament would or could reverse the SOW statute?.... Legal theory does not always match political reality."
- Legal theory must give way to practical politics.
What happened in the case of Manuel v AG?
- Amendment of the constitution of Canada
- By Act of Parliament
- MEGARRY VC :in this case restated the orthodox view of sovereignty
What is the process of Binding of parliament as to the Manner and Form of Future Legislation?
- This carries the Orthodox Diceyan view
- Which is that while a parliament could pass a statute that required a special procedure for its amendment or repeal
- This requirement would not be binding on a successor parliament.
- Courts would not entertain a challenge to subsequent incompatible statute because of "enrolled bill rule",
In which case was the Enrolled Bill Rule Laid down?
- Pickin v British Railway Board
- Academics have challenged e argument that Parliament cannot bind its successors on a number of fronts
- Human Rights act
What are the main challenges to the Diceyan theory that parliament cannot bind successors?
1. Human Rights Act 1998
2. European Communities Act 1972
In which cases has it been discussed if Parliament can bind itself?
- Attorney-General for New South Wales v Trethowan
- The validity of the Constitution (Legislative Council) Amendment Act 1929 was tested
- provided that no bill to abolish the Upper House in New South Wales (‘NSW’) could be presented unless it had been supported by a majority of voters in a referendum
- Held: requirement to have referendum was binding.
- PS had no relevance in determining the present case. The Privy Council seemed to indicate that the matter turned on a statutory construction of the Colonial Laws Validity Act 1865, s. 5
- Dixon J >> obiter comments in Australian High Court
What does the statement "No person/body may question the validity of an enactment of Parliament" mean?
- Suggests that no person or body has the power to question the validity or legality of Act of Parliament.
- Applies generally - in particular refers to the courts and to the Crown.
What was the situation of no one questioning the validity of an enactment of Parliament, PRE 1688?
- Before the Glorious Revolution in 1688
- Courts sometimes asserted right to strike down legislation that offended against common law principles, of natural right and reason
- This is historically significant.
What was the situation of no one questioning the validity of an enactment of Parliament, POST 1688?
- New era:
- Courts respected Parliament supremacy in law-making + subordination of the common law into statute
- So no JR of legislation was allowed by courts on grounds of procedure
- Any alleged irregularity in way that the statute had gone via Parl during legislative process – or on grounds of substance
- Namely the actual contents of a statute itself.
What does the Diceyan view of PS rest on?
- This notion that Acts of Parliament are the highest form of law.
- So neither manner that legislation is passed OR substance of law
- Should be reviewable by the courts
What happened in the case of Edinburgh and Dalkeith Railway v Wauchope
- This notion that Acts of Parliament are the highest form of law.
- So neither manner that legislation is passed OR substance of law
- Should be reviewable by the courts
- Wauchope "I have been unlawfully denied my property rights as the result of a statute that had been passed."
- Claimed he had not been given proper notice of the impending legislation
- In accordance with existing parliamentary standing orders
- Court rejected his argument that this procedural irregularity could render the Act as void
- No review to the manner that legislation has been passed
Explain how the Decision in Jackson acted as a Challenge to Diceyan Views on Parliamentary Supremacy?
- 1 of the most heated debates >> Passing of the HUNTING ACT 2004
PS out of place in the UK (it is NOT STEYN in the UK) - construct of common law.
Hope: PS is no longer absolute - ROL enforced by courts is ultimate controlling factor on which constitution is based
Courts will treat with suspicion
- Attempt to subvert rule of law by removing government action
HUNTING ACT WAS PASSED WITHOUT THE CONSENT OF THE HOUSE OF LORDS!!!
What are the 4 main challenges to aspects of traditional Diceyan theory?
Ø The Human Rights Act 1998
Ø Membership of the European Union
Ø The obiter debate in Jackson
Explain the legislative supremacy + Devolution challenge to Diceyan theory of PS?
- Scotland Act 1998 gave the new Scottish Parliament the right to legislate in relation to a number of issues.
- Section 28(7)
- Sept 2014 referendum, won by 55-45% margin
- Range of devolved matters that Scot Parliament can legislate on has been widened.
- Scot Gov now has enhanced powers over certain welfare benefits + set tax bands and rates
- Can argue that Parl. Sov was undermined because of this delegation of power to Scottish government
How does the HRA 1998 challenge PS?
- Does not mark formal reduction of Parliament
1. Does not empower courts to strike down primary legislation >> only to make non-binding declaration
- that an Act is incompatible with the ECHR (‘the Convention’) under the HRA 1998, s. 4.
- This was introduced to maintain sovereignty of Parliament
2. HRA in itself is Act of Parliament, that is capable of express repeal by ordinary legislation.
Does Section 4(6) HRA 1998 require parliament to change an incompatible statute?
- No, it does not
- BUT political consequences of a declaration are significant + effectively oblige relevant minister to arrange for amendment of offending part of the statute.
- Strength of obligation is seen to be akin to that of a convention.
Is HRA section 3(1) a narrow or wide statute?
- The word "possible" >> wide and non-defined term
- Potentially gives judges very significant scope for creative statutory interpretation
Which part of the HRA 1998 gives strong interpretative power?
- Section 3(1) HRA under "legislation"
- This was used in case of R v A (Complainant's Sexual History)
What happened in the case of R v A (Complainant's Sexual History)?
- About admissibility of evidence in rape trial
- law lords arguably seemed prepared to modify the meaning of the relevant legislation through use of the very strong interpretive power given to them by the HRA 1998, s. 3(1)
- LORD STEYN >> approach was to "read down" words into the relevant legislation >> Youth Justice + Criminal Evidence Act.
- Strong interpretative power
What have some of the political criticisms of the Human Rights Act have centred on?
- The way courts have applied section 3 of the Act
- In manner that critics have viewed as example of judicial activism.
- These are powers have not been self-created
- But have been given to the courts by Parliament, in 1998.
What happened in the case of Thoburn v Sunderland City Council?
- Effect of HRA on doctrine of implied repeal
- Reflects similar impact that EU law has had on this part of Diceyan theory of sovereignty.
When did the UK become part of the EU and how?
- Signing the Treaty of Accession in 1972
- Full member of European community
- From 1st Jan 1973
- Treaties have no direct effect on English law
What happened in the case of R (Miller) v Secretary of State for Exiting the European Union - what was the core message of the case?
- seen as a solid endorsement of the central legislative role of Parliament
- And judicial reminder that Parliament & not Executive is the sovereign body in nation.
What was the outcome of the case R (Miller) v Secretary of State for Exiting the European Union
- PM prevented from personally triggering Article 50 process
- As she claimed she was able to do using prerogative powers
- Obliged to introduce a Bill into parliament instead
- Passed EU withdrawal act 2017 on 16th March 2017.
What happened in the case of Bulmer v Bollinger?
- Described the effect of the ECA 1972
What happened in the case of Felixstowe Dock and Railway co v British Transport Docks Board?
- Traditionalists would refuse to give effect to ECA 1972 Section 2(4)
- Said that later UK legislation always repealed earlier legislative provisions with which it was inconsistent.
- If such provisions that were derived from EU law or not.
- A continuing strict adherence to such an approach > likely to have brought UK into conflict with Europe
- Now only of historical significance
Explain how the purposive interpretation is used?
- Represents more subtle + accommodating attitude towards force of EU law and started to gain grounds in the courts in early 1980s.
- courts started to develop presumption that Parliament (in passing legislation) must have intended to legislate consistently with Community law.
- So when interpreting statutes, courts would try to give effect to the purpose of EU provisions.
What happened in the case of Mc Carthys Ltd v Smith?
- considered that he was obliged to construe the statute purposively because of the ECA 1972, s. 2(4)
- Concluded this subsection > effectively abolished the doctrine of implied repeal in so far as Community law was concerned.
What happened in the case of Garland v British Rail Engineering?
- Suggested that the courts could adopt a wide + purposive interpretative approach
- To statutes
- But only in so far as the words could bear EU meaning
- This dictum related to the actual treaty
- Did not cover situation where courts wre required to interpret legislation
- With secondary EU legislation e.g. directives
What happened in the case of Pickstone v Freeman?
- HoL strained the meaning of
- An amendment to the Equal Pay act 1970
- So that it conformed to Community Law
- More purposive approach
- Nothing less than the words "this act is to apply over any other provision" would be enough
- Following this approach >> adhering to the intention of parliament.
What dilemma arose because of the Factortame line of cases?
- UK courts unable to construe meaning of a statute purposively in order to make it conform to community law
- Merchant Shipping Act 1988
- Also working out if piece of legislation could be prevented from coming into force
- Pending preliminary ruling from ECJ.
What were the effects of Factortame?
- Cited as one of the most important and fundamental in UK constitutional law
- Beause it appeared that Courts could suspend Act Of Parliament (at least temporarily)
- If it conflicted with community law
- Parl intention was to prevent the Spanish trawler owners using UK quotas, and this had not been allowed by the courts, because it breached Community law
What was the situation post factor tame?
- Conflict between community law and acts of parliament
- Courts can temporarily suspend that act of parliament.
- Effectively extinguishes the traditional doctrine of implied repeal; as far as EU rights are concerned.
What was the aftermath of Factortame?
- Courts willing to go further and to dis-apply sections within statutes that seem clearly to conflict with EU law, even without a reference to the ECJ
- E.g. decision in R v Secretary of State for Employment, ex parte Equal Opportunities Commission
What happened in the case of R v Secretary of State for Employment, ex parte Equal Opportunities Commission?
- involved Employment Protection (Consolidation) Act 197
- UK statute: part-time workers had to work for 5 years before they getting redundancy and unfair dismissal compensation rights.
- FT workers had to do 2 yrs
- PT workers = mostly female >> rules indirectly discriminatory to women
- contrary to the EU Treaty, art. 141, giving women equal pay rights).
- HoL granted a declaration to that effect. As a result, industrial tribunals in the UK subsequently ignored the wording of the Act and granted part-time workers compensation rights if they had completed two years employment.
- = Act was a dead-letter as far as the five-year qualifying period for part-timers was concerned.
- Effect of this decision >> more far-reaching than Factortame, because part of the Employment Protection (Consolidation) Act 1978 was completely suspended for all, whereas in Factortame (No. 2) the Merchant Shipping Act 1998 was only suspended for EU nationals
Why was the effect of the decision in the case of R v Secretary of State for Employment, ex parte Equal Opportunities Commission more far reaching than that of Factortame?
- Because part of Employment Protection (Consolidation) Act 1978 was completely suspended for all
- In Factortame (No. 2) the Merchant Shipping Act 1998 was only suspended for EU nationals.
What happened in the case of Thoburn v Sunderland City Council?
- newer trend for a modified approach to the doctrine of implied repeal.
- to override provisions of EU law, it is necessary to indicate that the legislature's actual intention was to bring about the repeal of the provision
- Can only be brought via express repeal
- Provision should have been impliedly repealed
- LAWS LJ >> there are certain "constitutional statutes" that cannot be impliedly repealed
- Vauxhall estates
What happened in the case of R (HS2 Action Alliance Ltd/) v SOS for Transport?
- Introduction of a further + more subtle take on the idea that there is a hierarchy of constitutional principles
- Or norms
- That operate in the constitution
- Developed the ideas of Thoburn
Explain the significance of the Jackson obiter comments?
- Academics argue that there are signs from the wider obiter debate in Jackson
- that a change may be underway in the judiciary's view of the traditional concept of PS.
- Outcome >> relating to the validity of PA
- Not of direct significance in this regard
- Obiter comments >> law lords seem to suggest that the traditional status of the doctrine may have to give way at some point in the future to a wider principle of constitutionalism
What is the question now re Diceys theory?
- Whether unlimited sovereignty
- in the form described and advocated by Dicey is still entirely relevant within the UK
Describe the constraints of PS on parliament?
- Practical + political constraints
- Placed on Westminster via legislation governing former dominions
- + devolution arrangements
What is the significance of the Jackson case?
- Highlights one of the most important constitutional TENSIONS in recent years
- Between the principles of PS and SUBSTANTIVE RULE OF LAW
- These concerns tie in with growing importance of rule of law as central principle of constitution
- Add credence to view that if Parliament did the unthinkable under authoritarian government >> courts would not automatically defer to it.
Explain the critique of the Diceyan principle that there can be no entrenchment of legislation?
- Argue that Parliament could protect measure against repeal
- By subsequent legislature
- Through the technique of entrenchment
- E.g. repeal of Human Rights legislation might require a 2/3rd majority.
- Courts would have to decided if they wanted to go beyond the enrolled bill rule.
- And look to see how legislation had been passed to see if it conformed to requirements of entrenched Act.
What happened in the case of AXA General Insurance v Scottish Ministers?
- Case related to the different status of Acts of the Scottish Parliament,
- Hope >> suggested that the courts could review a statute that might be seen to violate the rule of law.
- In relation to the EU, it can be said that the UK Parliament voluntarily forfeited or shared some of its sovereignty by enacting the ECA 1972.