PARLIAMENTARY SUPREMACY CHALLENGED - Coggle Diagram
PARLIAMENTARY SUPREMACY CHALLENGED
The case of the Scottish parliament
Scotland Act 2016 => sections 1 and 2 => Recognized as a permanent part of the UK’s constitutional arrangements => UK P. will not legislate with regard to deloved matters without the consent of the S. P.
Can be seen as a limitation of the UK parliamentary supremacy => prevent future UK parliaments to legislate without the consent of S P. or remove it. => BUT POLITICAL CONTRAINT NOT LEGAL
A very specific nature
About the challenge of the Royal Act 1953 => Scottish judges gave warning on any constitutional adventure which would lead the UK Parliament to try to abolish this distinctiveness of the Scottish Parliament
Parliamentary supremacy is a very english concept
Gibson v Lord Advocate case (1975)
EU MEMBERSHIP (ECA 1972)
2 types of legislation : Primary L (Treaties,direct effect and Secondary L ( Regulations,no direct effects)
Potential conflict with P. supremacy : whether it was possible for the Parliament of the day to guarantee in the ECA that
future parliaments would not legislate in contradiction EU law.
When it comes to EU law, these cases and other cases say that Parliamentary supremacy is qualified by the primacy of EU law.
About disapplying on act of Parliament: the traditional view says that the courts cannot question the validity of an act
of Parliament but yet, the ECJ tells the courts to do the exact contrary.
Thoburn v. Sunderland City Council case (2003)
The ECA cannot be impliedly repealed as it is a constitutional statute. But this also means that express repeal remains available as long as Parliament uses express and unequivocal rules.
Evolution=> ECA ACT 1972 succeeded to binding future P in the field of EU law
UK P. is not longer supreme in the areas of EU law as any conflicting domestic legislation will be set aside (invalid) by courts.
Accepting the doctrine of the supremacy of EU law restricts the absolute authority of the Parliament to legislate as it is wants
in the areas affected by EU law. This qualification is limited to legal matters, domains which are affected by EU law.
ECA 1972 stating that courts must read statutes in a way which is compatible to EU law: this rule of construction leads to a priority given to EU law over domestic law.
HUMAN RIGHTS ACT 1998
Important progress : when it comes to the judiciairy bc it gives superior courts to power to review the content of an act of P => but cannot strike down an incompatible act
The incompatibility => warning signal of the P => but the P can choose to follow the declaration or not.
The HRA is protected against implied repeal by a later act but not against the express one. The two incompatible laws exist
simultaneously until the conflict is remedied.
A v Secretary of State for the Home Department case 2004:
THE RULE OF LAW
Tomkins and Turpin => radicalism”: “Common law radicals believe that the entire constitution, including the doctrine of the sovereignty of Parliament, is
based on the common law”
A rule of CL could limit Parliamentary supremacy, which makes it not absolute.
The supremacy of the Parliament is said to be a CL law thing and have been recognized by the courts during the
glorious revolution: they could go against the Parliament if he did the inconceivable.
The rule of law prevails on the P supremacy
Lord Hope in Jackson said that “The rule of law enforced by the courts is the ultimate controlling factor on which our
constitutions are based”
there are some kind of extreme legislation that the judiciary must refrain from considering as valid law.
Lord Steyn in Jackson : Supremacy of P is a construct a common law. The judges created this principle.If that is so it is not unthinkable that circumstances may arise
where the court may have to qualify a principle established on a different hypothesis of constitutionalism.