Parliamentary Supremacy

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  • Parliamentary Supremacy
    • A set of rules
      • Dicey's orthodox meaning: right to make or unmake any law and no body can override this
        • Express repeal by a later statute
      • The courts view
        • Law reports contain statements supporting parliamentary supremacy
          • Pickin v British Railways Board - court has no concern with manner in which Parliament performs functions - 'the enrolled bill rule'
            • Cheney v Conn - Acts are highest law and do not give way to conventions
              • Simms and O'Brien - related to delegated legislation - principle of legality, parliament assumed to legislate according to human rights act
      • Political criticism of legislation
        • PS an empty principles if absurd laws are passed
          • If opposition is strong enough, the government may back down and withdraw proposals
            • Can lead to civil disobedience if enacted (poll tax riots)
      • Governments say on Parliamentary Supremacy
        • Assurances of PS given in run up to joining the EEC - can still repeal statute
    • Source of PS
      • Statute
        • May be impossible - no need for legal background - law because it is law
      • Common Law
        • Rules of law formulated by judges when they decide cases
          • Law reports contain statements that it is necessary to give effect to Parliament's intentions
      • Convention
        • Rejected as conventions are not binding but courts apply PS
      • Some other category of norm
        • It is the ultimate political fact
          • Consensus among the senior officials of all branches of government and not just one could change it
    • Entrenchment
      • Desirability of entrenchment
        • Prevents fundamental constitutional rights being repealed or amended - calls for a Bill of Rights
          • Not necessary as the common law combined with PS allows rights to be updated
            • Not compatible with our parliamentary democracy which preserves parliament's freedom to legislate as it wishes
      • How might entrenchment be achieved?
        • Statement that Act will exist for all time - Union with Scotland Act 1706
          • Future legislation dependent on a referendum - Northern Ireland Act
            • Parliamentary procedure such as a super-majority
              • Second chamber must agree to alteration - would involve repealing the Parliament Act 1911
                • Enhance authority of Lords
              • Problematic - not existing part of UK practice
      • Is entrenchment possible?
        • Binding would reduce supremacy but so would saying Parliament cannot bind
          • 'No entrenchment'
            • Parliament cannot be limited on it's power to enact legislation
              • An Act may specify a procedure but a later Act can repeal this
                • Judges job to be guardians of Parliamentary Supremacy
          • 'Entrenchment'
            • Key principle is that the courts accept as law that which is made in the proper form
              • Legal sovereign is not restricted in ability to enact Laws affecting themself
    • Implied Repeal
      • Parliament has passed two Acts which contradict each other
        • Usually the later Act will be the binding one
          • This does not apply if the first Act is a constitutional one UNLESS repealed in clear words
            • Thoburn v Sunderland City Council
              • Constitutional Statute is one which conditions the legal relationship between citizen and state in some general, overarching manner or enlarges or diminishes the scope of what we would not regard as fundamental constitutional rights
    • Europe
      • Parliament's enactments must be read consistently with the ECHR - declaration of incompatibility
    • Future of PS
      • PS remains dominant principle in the British constitution
      • Adopt codified constitution
      • British judiciary has power to adjudicate on constitutional validity of Acts to safeguard rights
        • Bipolar Sovereignty

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