Parliamentary Supremacy
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Parliamentary Supremacy. Lesson Objectives: I will be able to explain the doctrine of parliamentary supremacy I will be able to consider limitations on the doctrine of parliamentary supremacy. Parliamentary Sovereignty/Supremacy.

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  • Lesson Objectives:

  • I will be able to explain the doctrine of parliamentary supremacy

  • I will be able to consider limitations on the doctrine of parliamentary supremacy


Parliamentary Sovereignty/Supremacy

Parliamentary law is sovereign over all other forms of law in England and Wales

judicial precedent

custom

An Act of Parliament can completely overrule any:

previous Act of Parliament

delegated legislation

Reason: democratic law-making, i.e. MPs vote on behalf of those who voted for them


Though this is not a realistic view of democratic law making
- though this is not a realistic view of democratic law-making:

  • MPs usually vote on party lines, not how their constituents wish

  • Taking into account the small proportion who vote and also that there are several candidates many MPs are elected by only a minority of the electorate

  • General elections may be five years apart so an MP going against constituents’ wishes is not immediately replaceable

  • Drafting is done by civil servants who are not elected

  • The House of Lords is not elected


Parliamentary sovereignty
Parliamentary Sovereignty law-making:

The supremacy of Parliament was established in the 17th century. In 1689 the Bill of Rights was enacted, which deemed Parliament to be the supreme law-maker.

Article IX states ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”


A v dicey
A.V Dicey law-making:

  • 19th Century Constitutional Lawyer

    ‘the principle of parliamentary sovereignty means…that parliament…has the right to make or unmake any law whatever, and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”


Parliamentary sovereignty supremacy
Parliamentary Sovereignty/Supremacy law-making:

Definition - Dicey (19th Century):

1. Parliament can legislate on any subject-matter:

Act of Settlement 1700

2. No Parliament can be bound by any previous Parliament, nor can a Parliament pass any Act that will bind a later Parliament

But - Act of Settlement 1700; See also the next slide

3. No other body has the right to overrule or set aside an Act of Parliament

Even if there was fraud in making it - British Railways Board v Pickin


The effect of the eu on parliamentary supremacy
The effect of the EU on parliamentary supremacy law-making:

The UK joined the EEC (European Economic Community) now the European Union, on the 1st January 1973.

The Treaty of Rome 1957 was the founding Treaty of what is now the EU.

The EU is a group of countries that have signed international treaties with the common purpose of creating an economic union.

EU law was given effect in the UK by the European Communities Act (ECA) 1972. This Act of Parliament incorporates EU law into UK domestic law. The effect of this Act is that Acts of Parliament are now subordinate to European Law.


S2(1) of the ECA – all provisions of EU law are given the force of law in the UK

S2(4) of the ECA – makes UK Acts subject to directly applicable EU law.

Since the enactment of the ECA, Parliament is no longer the supreme law-maker in the UK. EU law will prevail over UK law, this contradicts Dicey.

The supremacy of EU law is demonstrated in Costa v ENEL (1964)


Ex parte factortame no 2 1991
Ex parte force of law in the UKFactortame No 2 (1991)

Rights of Spanish fishermen to fish in British waters.

They claimed that the Merchant Shipping Law (UK Law) was contrary to EU law.

The ECJ (European Court of Justice) stated that domestic courts must suspend domestic legislation while waiting for a ruling from the ECJ as to whether the domestic legislation contravenes EU law.

UK law must follow EU law in this scenario.


Until the UK Parliament decides to withdraw the UK from the EU, an increasing amount of legislation will continue to be passed in order to comply with our membership obligations.


Who has supremacy
Who has supremacy? EU, an increasing amount of legislation will continue to be passed in order to comply with our membership obligations.


Human rights act 1998
Human Rights Act 1998 EU, an increasing amount of legislation will continue to be passed in order to comply with our membership obligations.

The European Convention on Human Rights (ECHR) 1950 – prevent war atrocities

This was an international treaty signed 45 countries of Europe with the common purpose or protecting fundamental rights and freedoms of citizens.

The Human Rights Act (HRA) 1998 – An Act of Parliament that incorporates the European Convention on Human Rights into UK domestic law.

The HRA came into force in October 2000.

As far as Parliamentary supremacy is concerned, the HRA requires all legislation passed by Parliament to be interpreted and given effect so far as is possible to comply with Convention rights.


s.19 Government minister must declare before a bill is given second reading that it is compatible with the HRA.

Remedial order – changing the bill to comply with Convention rights.

A and Others v Secretary of State for the Home Department (2004) – laws changed concerning the Anti-Terrorism, Crime and Security Act 2001 to fit in with Articles 5 and 14 of the ECHR

The effect of the HRA on parliamentary supremacy is limited. Courts can declare UK law incompatible, but not invalid.

Government minister must declare whether proposed legislation is compatible, but there is no specific requirement that it must be. Therefore supremacy seems to remain.


Limitations on parliamentary sovereignty
Limitations on Parliamentary Sovereignty second reading that it is compatible with the HRA.

  • Membership of the EU: European Communities Act 1972. Whilst it is theoretically possible for a future Parliament to pass an Act withdrawing from the EU this is very unlikely

  • All Acts of Parliament have to be compatible with the European Convention on Human Rights: s 4Human Rights Act 1998.The courts have the power to declare an Act incompatible with the Convention

  • Whilst a judge cannot overrule an Act of Parliament it is a judge’s job to interpret Acts of Parliament


Devolution
Devolution second reading that it is compatible with the HRA.

Scotland Act 1998

Government of Wales Act 1998

Westminster Parliament devolved certain powers to the Scottish Parliament and Welsh Assembly.

Allows them to make their own laws – Free university in Scotland.

Supremacy has been removed in certain areas although they do have the power to repeal acts and regain power. Westminster still retains power in areas such as defence which affect the whole of the UK.


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