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Parlimentary Sovereignty Notes
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Parlimentary Sovereignty Revision
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Con & Ad: Parliamentary Sovereignty
- 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  - [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 : court bound to apply Herring Fisheries (Scotland) Act 1889, even though fishing restricted beyond 3-mile international law limit. Cheney v Conn : 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
. statutes valid until repealed: e.g. Treason Act 1351 could still be enforced.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  + Ellen St Estates v Minister of Health : 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 : [Ld Cooper] obiter - unlimited sovereignty 'English' principle not inherited by UK Parliament. Gibson v Lord Advocate : [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').
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