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GDL Law Notes GDL Constitutional and Administrative Law Notes

Parlimentary Sovereignty Notes

Updated Parlimentary Sovereignty Notes

GDL Constitutional and Administrative Law Notes

GDL Constitutional and Administrative Law

Approximately 509 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of applications from mostly first class students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
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The following is a more accessible plain text extract of the PDF sample above, taken from our GDL Constitutional and Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

  • - Traditional analysis: no legal limits to legislative competence of Parliament.

    • since 1688 Glorious Revolution: Parliament enacts legislation, formal assent of Crown.

    • Dicey: ‘continuing theory of Sovereignty of Parliament’ – ‘right to make or unmake any law whatsoever’ + ‘no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’.

      • 1. Parliament is the supreme law-making body

      • 2. No Parliament may be bound by a predecessor or may bind a successor.

      • 3. No person or body may question the validity of an enactment of Parliament.

    1. Parliament is the supreme law-making body: may make any law.

    • [Dicey]: no substantive legal limits regarding legislation Parliament may enact – ‘make any law whatsoever’ (but: clear political limits).

    • no subject limitations: Parliament can legislate on any subject, no matter how absurd, unjust, impractical.

      • [Sir Leslie Stephens] (1882): e.g. law ordering death of all blue-eyed babies.

      • can alter own constitution: Septennial Act 1715 (altered terms of office); Parliament Acts 1911 + 1949 (limited power of HoL, a constituent body).

      • could legislate against human rights: R v SS for Home Department ex parte Simms [2000] – [Ld Hoffman] obiter.

    • no geographical limitations: Parliament can legislate for territory beyond jurisdiction of UK, even if this produces conflict with international law.

      • Mortensen v Peters [1906]: court bound to apply Herring Fisheries (Scotland) Act 1889, even though fishing restricted beyond 3-mile international law limit.

      • Cheney v Conn [1968]: legislation not constrained by Geneva Convention.

    • no temporal limits: Parliament can pass laws which are retrospective as well as prospective.

      • War Damages Act 1965: effect of retrospectively nullifying HoL decision in Burmah Oil Co v Lord Advocate [1965].

      • statutes valid until repealed: e.g. Treason Act 1351 could still be enforced.

    2. No Parliament may be bound by a predecessor or bind a successor: may repeal any law.

    - Traditional view: Parliament can never be bound by or bind another Parliament.

    • [Dicey]: Parliament can ‘unmake any law whatsoever’.

    • rationale: each Parliament must enjoy same unlimited power not bound by predecessors + cannot bind successor.

    • repeal – 2 forms:

      • 1. express repeal: legislation expressly states intention to repeal earlier Act.

        • e.g. Regulation of Investigatory Powers Act 2000: repeals Interception of Communications Act 1985.

      • 2. implied repeal: previous Act repealed to extent of inconsistency with new.

        • e.g. Vauxhall Estates v Liverpool Corporation [1932] + Ellen St Estates v Minister of Health [1934]: court bound to apply Housing Act 1925 over Acquisition of Land Act 1919 (even though stipulated provisions were to prevail over any others to be passed).

        • [Maugham LJ] (Ellen St): ‘impossible for Parliament to enact that in a subsequent statue dealing with the same subject matter there can be no implied repeal’.

        • but: new view – may not apply to ‘constitutional statutes’ (e.g. HRA 1998, ECA 1972).

    • BUT: debate – can Parliament limit its own power? (3 potential areas: substantive, manner, form).

    - 1. Substantive: can Parliament bind as to content of future legislation?

    • The Union Legislation: argument that Acts of Union intended to be higher form of law substantively entrenched.

      • theory: Acts of Union enacted by English + Scottish/Irish Parliaments, not UK Parliament UK Parliament limited by constitutional document.

        • [J Mitchell]: UK Parliament ‘born unfree’.

      • cases: some support in obiter comments.

        • McCormick v Lord Advocate [1953]: [Ld Cooper] obiter – unlimited sovereignty ‘English’ principle not inherited by UK Parliament.

        • Gibson v Lord Advocate [1975]: [Ld Keith] obiter – argument could be made that legislation in breach of Act of Union (e.g. Art XVIII: changes to private law must be for utility of Scottish subjects’).

      • but: arguments weak: UK Parliament has altered many principles in Acts of Union [Dicey]: no higher legal status than any other Act.

    • Grants of Independence: Act of Westminster 1931 s4 – Parliament will not legislate for Dominions without request + consent substantive + procedural restriction.

      • theory vs. political reality.

        • British Coal Corp v The King [1935]: [Ld Sankey] obiter – in theory, Parliament can still legislate, but: ‘that is theory and has no relation to realities’.

        • Blackburn v AG [1971]: [Ld Denning] obiter – ‘Freedom once given cannot be taken away. Legal theory must give way to practical politics’.

      • but practicality irrelevant? UK courts must still uphold laws.

        • Manuel v AG [1983]: [Megarry VC] – UK courts must still enforce; valid even if not practically enforceable.

    - 2. Manner: can Parliament prescribe manner in which legislation passed/repealed?

    • traditional view: no limits in theory or practice.

      • theory: statute requiring special procedure for amendment/repeal binding can be repealed in usual way.

      • practice: Enrolled Bill doctrinePickin v British Railways Board [1974]: courts have no power to declare Act invalid (although cf. Jackson).

    • but: new view: HRA 1998 + ECA 1972 – Parliament binding successors.

      • e.g. R (on app. of Jackson) v Attorney General [2005]: [Baroness Hale] obiter: ‘Parliament has, for the time being at least, limited its own powers’

    • + previous occasions:

      • Att-Gen for New South Wales v Trenthowan and Others [1932]: requirement for referendum before Bill to abolish upper House (imposed by Constitution (Legislative Council) Amendment Act 1929) binding entrenchment possible.

        • but: because NSW deemed to be legislative body having subordinate powers (although [Dixon J] obiter: could also apply to UK Parliament).

      • R (on app. of Jackson) v Attorney General [2005]: HoL – Parliament able to use s2(1) Parliament Act 1911 to modify itself Parliament Act 1949 (overturning CoA – Parliament cannot use 1911 Act to make major changes).

        • also NB: court distinguished Pickin – able to scrutinise Act of Parliament.

    -...

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