Supremacy

Question 1

What is the Manner and Form Argument?

Answer 1

• Jennings - Parliament cannot bind itself substantively but it can change the way Parliament operates through an Act.
• The Parliament Acts are an example of this

Question 2

What does Bogdanor say about referendums?

Answer 2

• They create a third chamber of the people which the Act must be passed through
• European Union Act

Question 3

What is Wade’s Argument on Jackson?

Answer 3

• The 1911 Act was delegated legislation - delegated to the Commons and Crown
• As the 1949 Act was passed under the 1911 Act it was invalid as it extends the power delegated to it

Question 4

What was the counterargument to Wade’s Argument?

Answer 4

-The 1949 Act and 1911 Act are not delegated legislation as there is a provision in the 1911 which says that any legislation passed under it will be an Act of Parliament

Question 5

What did Lord Bingham say?

Answer 5

• The fundamental principle is that, the 1911 Act is still an Act of Parliament
• Bingham appears not to think that Parliament is limited

Question 6

What does Bingham say about the Parliament Acts Procedure?

Answer 6

• The 1911 Act was to bring in fundamental constitutional changes
• Parliament could have used more exceptions

Question 7

What did Lady Hale say?

Answer 7

-The courts might reject provisions which subvert the rule of law by removing governmental action affecting the rights of the individual

Question 8

What do Lord Steyn and Hope say?

Answer 8

• The Sovereignty of Parliament is a common law construct and so the courts can do what they wish
• If Parliament passed an outrageous act i.e. abolishing voting, then the courts would have to act against Parliament Sovereignty

Question 9

What was said in Pickin [1974]?

Answer 9

-The courts cannot comment on whether an Act was procured by a breach of Parliamentary procedure

Question 10

What is the principle from Ellen Street Estates [1934]?

Answer 10

-The provisions of a later act must prevail, Parliament cannot bind future Parliaments

Question 11

What are Dicey’s Key Arguments on Supremacy?

Answer 11

1. Positive Limb - Parliament can make or unmake any law

2. Negative Limb - Parliament cannot bind future Parliaments

Question 12

Why might the HRA 1998 limit Parliamentary Sovereignty?

Answer 12

• S.3(1) requires that the courts interpret UK legislation in accordance with the European Convention on Human Rights
• The legislation is held to a measure of judicial control

Question 13

Why might the HRA 1998 in fact not limit Parliamentary Sovereignty?

Answer 13

• It was Parliament that gave effect to the use of the ECHR under s.3(1) in the first place and were they to change their mind on its utility it would be within their power to repeal it, although there may be difficulty getting this through the House of Lords…
• Tomkins argues that because the courts can only declare the legislation incompatible, Parliament remains Supreme as it could always ignore the s.4 declaration of incompatibility

Question 14

What does Bradley say about the HRA 1998?

Answer 14

• It gives the judiciary power of judicial review in all but name
• This is supported by Ghaidan v Godin-Mendoza in which the Rent Act 1977 was interpreted to include homosexual couples

Question 15

In what way might the ECA 1972 limit Parliamentary Sovereignty?

Answer 15

-S.2(1) and (4) requires that all rights arising under EU treaties are given effect in preference to UK legislation

Question 16

Which important case demonstrated how the ECA 1972 might limit Parliamentary Sovereignty?

Answer 16

-Factortame (no. 2) [1991]

Question 17

What similar answer to whether the HRA 1998 is a qualification of Parliamentary Sovereignty can also be used for the ECA 1972?

Answer 17

• Parliament set the limits itself through the Act, and it maintains the power to repeal the Act if it sees fit
• It is therefore not a higher form of law
• Sir John Laws

Question 18

What does Lord Hoffmann say about the capabilities of Parliament and which case demonstrates this?

Answer 18

• It can legislate contrary to fundamental rights if it chooses
• Pickin; in which the courts had no jurisdiction to consider whether Parliament or its officers were mislead by fraud

Question 19

What did Lord Hope say in AXA?

Answer 19

• AXA [2011]
• ‘The question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion’