Tutorial 3 Parliamentary Sovreignity Flashcards
What is the difference between legal and political sovereignty?
Political sovereignty- A political concept that identifies where the ultimate source of political authority lies
Dicey says sovereignty in a political sense is the ‘will of which is ultimately obeyed’
Legal concept of sovereignty- Dicey P has the right to make and unmake any law
2 Aspects: Positive P can make or unmake any rule
Negative no one can make rules which derogate from or override an act of P
Dicey concept of PS
P is completely S and has the right to make and unmake laws
Is not binded by past statutes or common law- should take the most recent Act of P
Can P limit its power?
NO
Orthodox constitutional doctrine: No legal limits to the law P can enact
Any restraint that P exercises flows from the political not legal system
Wade= Absolute entrenchment is impossible as the courts must respond to the most recent expression of P intention when 2 Acts conflict
Can Parliament limit its power?
YES
Manner and Form theory
P is and should be capable of laying down binding conditions concerning how and the form of legislation to be enacted
Should not be capable of ‘tying future legislators’ hands
Contingent entrenchment- P can and should be able to make it more difficult for a statute to be amended or repealed
Absolute entrenchment- P cannot make it impossible for a law to be amended or repealed
Jackson v AG 2006
Issue: Was the P Act 1949 which amended the P Act 1911 was invalid as it was passed without HoL consent
HoL held there is no constitutional principle or principle of statutory interpretation that prevents a legislature from altering its constitution
Some support for the New view (manner and form theory)
Did EU membership require a change to the traditional conception of Parliamentary sovereignty?
P cannot change EU law as P recognises the supremacy of EU law under the European Communities Act 1972
Key cases:
Factortame 1991- Any statute not compatible with EU law= disapplied by the courts
Thoburn 1972 Act= a special constitutional statute- endorsed by Miller
EU membership impact on PS?
P domestic law was not the most authoritative legislation due to EU law- threatens the concept of Parliamentary supremacy
P= a higher power as P can leave the EU
EU law in the UK is reliant on P supporting it- no threat to PS
Thoburn v Sunderland City Council 2003
Implied repeal is may occur where P enacts successive statutes that are inconsistent
Earlier statute= repealed by the latter
Laws LJ Distinction between ordinary and constitutional statutes- CS may not be impliedly repealed
Ellen Street Estates 1934
Legislature cannot bind the formation of subsequent legislation
Constitutional statutes (Thoburn)
Courts must find express words in the later statute that show that P intended to repeal the former constitutional statute
Has Brexit taught is anything about the doctrine of PS?
Following Miller 1- PS= strengthened
Miller 1- 1972 Act can be repealed, the principle of PS= fundamental and means EU law is reliant on P
PS= an evolving rather than fixed concept
Is there a distinction between constitutional and ordinary statutes?
Thoburn:
CS must be addressed with express repeals
Ord Statutes can be implied
Constitutional Statutes
Defined in Thoburn:
Conditions the legal relationship between citizen and state in an overarching manner
Enlarges or diminishes the scope of constitutional rights
Factortame
Any statute not compatible with EU law would be disapplied
Henry VIII clauses
Retrospective H8 clauses give someone the power to amend, change, and repeal laws that pre-exist the conferred law
