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Parliamentary Sovereignty Key to our constitution Parliament is the ultimate source of power SOVEREIGNTY: BACKGROUND AND CONTEXT Dicey: ‘will of which is ultimately obeyed’ constituted the electors, Lords and Crown’ Identifies where ultimate authority source is Dicey’s Rule: Positive aspect; Parliament can make and unmake any law, obeyed by courts Ellen Street Estates v Minister of Health: If Parliament enacts an Act dealing with same subject matter as another, the other is impliedly repealed, not only explicit Done after HA 1925 had inconsistent provisions with ALA 1919 Cheyney v Conn: Statutes can’t be lawful, whatever it says is law Jackson v AG: No Act is entrenched, all subject to repeal Nobody, not even common law, can override Acts of Parliament, obeyed by courts British Railways Board v Pickin: Nobody has questioned parliamentary supremacy, courts mustnt question Gibson v Lord Advocate: Challenge to fishing rights, one statute cannot limit a later one Sovereignty in both Houses acting with the Crown via Royal Assent Political and legal sovereignty Legal sense of sovereignty more important Political: Electors are most important in Parliament, will of monarch obeyed by people, but we like to describe ourselves as citizens (more democratic views), feeds into legal sovereignty (electors are sovereign as part of Parliament, parliament is sovereign) Legal: Only Parliament regardless of electors, any law made by Parliament is binding on all people, Act of Parliament is highest form of law Legal sovereignty limited by public uproar, Legislators dictated by public opinion We are not in true democracy (we don’t represent ourselves, people represent us) non-legal factors prevent fascist laws being carried out (eg: morality) in political sovereignty Legal: Legislators can't be trusted to do the right thing (may act in self-interest), however its Undemocratic to constrain legislators to majority wants, govs may include other party policies to include the minorit Its constitutional status No physical distinction between constitutional and ordinary statute (no one document that sets out all constitutional legislation) Constitutional laws are higher-order laws Lord President recognises a difference between constitutional la and ordinary law (eg: Union of Scotland required us to merge Scotland into our identities, careful to say that the courts hold that Parliament cant change the act) Courts guard constitutional statutes, prepared to not apply ‘unconstitutional legislation’, reluctant to do so There exists A constitutional way of thinking too (judicial review and judicial authority in interpreting statutes is fundamentally constitutional) A BRIEF HISTORY Magna Carta: The King cannot be above Parliament Tudor/Stuart rule: Reformation Parliament asserted authority of statute law over divine law Case of Proclamations (1611): King cannot change law without authority of Parliament, despite common law maintaining King’s power ‘ the King hath no prerogative, but that which the law of the land allows him. Case of Ship Money (1637): Courts serve to protect parliament’s will Civil War (c. 1642-1651): Sovereignty central to war (power held by Parliament) Glorious Revolution (1688): Confirmed supremacy of Parliament Bill of Rights, 1689: Established principle of frequent Parliament, protected sovereignty Acts of Union with Scotland 1706 and Ireland 1801: Statute as uniting Parliaments: Article 18: Private rights are not altered by law Article 25: Parliament can void any law Miller 1: treaties not incorporated into UK law, no legal obligations in domestic law SC: international and domestic operating independently is paramount to parliamentary sovereignty Common law can still give effect to international law unless it is inconsistent with a statute Does sovereignty beat international law: Yes domestically: Act of Parliament can render breach of international law lawful domestically No internationally: doesn’t make an act that is unlawful under international law lawful AF (No 3): Parliament could legislate to override the right to a fair trial protected by article 6 ECHR, courts bound to uphold it Only propose exclusion if its necessary to protect public from terrorism, would be incompatible with ECHR Parliament can grant powers to the executive to impose control orders with judicial procedures that violate right to fair trial Clauses 42-45 Internal Markets Bill: Is it constitutional for Ministers to propose legislation that would be in conflict with an international treaty SOVEREIGNTY CHANGED ECA 1972 Section 2: 2(1): any rights and remedies under EU treaties affecting the UK are available and enforced in law 2 (2a,b): The monarch through DL implement UK obligations under treaties and allow UK rights to be exercised under it, address matters relating to implementation or availability of them in law 2 (4): Section 2 includes any provisions that could be made by Act of Parliament, subject to Schedule 2, Enactment of provisions to be done in accordance with provisions of the act Factortame: any act must be compatible with EU law, any act that wasn't was ‘disapplied’, clear change in the rule on “implied” repeal Thoburn: Using ‘pound’ as a unit of measurement illegal, Thoburn argued against it and it meant implied repeal of S2(2) ECA 1972 Didnt impliedly repeal it as ECA a constitutional statute Thoburn: 1972 act was a special constitutional statute, endorsed in Miller I, constitutional statutes cannot be impliedly repealed. Laws LJ: hierarchy of ordinary and constitutional statutes, constitutional statutes could only be expressly and not impliedly repealed by Parliament Attacks Dicey’s account, denies that future Acts prevail over previous acts and all statutes of the same status and easy to change EU (Withdrawal Act) 2019 Section 7A: Implementation of the act applies all rights and remedies covered by the Act. Rights, powers and remedies are recognised and avaialb ein domestic law and enforced Re Allister Northern Ireland protocol protects the EU single market, the free movement of goods across the EU, and avoid the imposition of a hard border to maintain peace The Northern Ireland protocol legal, especially as it suspends section 42 NI Act (if concerns presented to the assembly of 30 members after consideration period, it requires majority support) Northern Ireland Protocol incompatible with constitutional rights in Acts of Union 1800 Acts of Union 1800: Great Britain and NI must be on the same footing in terms of trading, disapplies acts that interfere with this Argued its lawful based on EU Withdrawal Act 2018, a minister can make provisions to implement the protocol obligations on the UK to acquire the consent of Northern Ireland was fulfilled by the creation of the regulations allowing the democratic consent of Northern Ireland. HS2 case arise out of the decision of the government to promote HS2 rail Hybrid bill incompatible with EU directive to allow public to express their opinion on development plan, no environmental assessment conducted 2 key questions: Should it have been preceded by strategic environmental assessment, under the relevant European Directive (EIA and SEA) Whether the hybrid bill procedure, as currently proposed, will comply with the procedural requirements of European law. Appeal dismissed, hybrid Bill procedure wasn’t incompatible with EU law The command paper that brought HS2 fell outside the scope of the SEA as it wasn’t a framework (influential to Parliament rather than determinative) Already had environmental considerations at earlier planning stages, appropriate 1972 Act might not always prevail over subsequent acts. Might not have engaged Article IX of the Bill of Rights 1689 such as to allow the courts to interfere with proceedings in Parliament in enforcing EU law Neuberger and Mance: scrutinising parliament based on external criteria questions Parliament’s internal proceedings There is a hierarchy of Constitutional statutes in the UK constitution (creates more problems than it solves, what if two equally fundamental statutes conflict? How do we quantify fundamentality?) Reed: Conflicts between constitution and EU law must be resolved by the courts Sullivan (dissenting): Henry VIII clauses Allows officials to set aside Acts Section 10 HRA: Can set aside an act if declaration of incompatibility issued Lord Reed in AG’s Ref Scotland UNCRC: Provision in Scottish Bill would allow Scottish Court to make declaration of incomptibility with UNHCR, would violate parl sov Counterargue with orthodox view that does not infringe sovereignty because legislation is not struck down Reed explains the difference, S4 under act of parliament, any qualifications as to its sovereignty is consistent with the fact it doesn't infringe on sovereignty