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3.1 PARLAMENTARY SOVEREIGNTY
The_House_of_Commons_1793-94_by_Karl_Anton…
3.1 PARLAMENTARY SOVEREIGNTY
DEFINITION OF LEGAL SOVEREIGNTY
We must ask ourselves:
- Who has the right to make or unmake any law?
- The answer is the Parliament
(HoL + HoC + :crown: )
(1) "ABSOLUTE" POWER OF PARLIAMENT
- At least in theory, the Parliament has no legal limits to pass or repeal any law
- De Lolme: parliament can do everything but make a woman a man and a man a woman
(2) DOCTRINE OF IMPLIED REPEAL
- A more recent statute prevails over an older statute
- The Parliament cannot bind its successors
- If applied strictly, from a constitutional POV the entrenchment of constitutional principles/ a bill of rights is not possible
(3)
- No other body has the authority to challenge the validity of laws made by Parliament in the proper manner
(4) RELATIONSHIP PARLIAMENT - COURTS
- It is the Parliament who has the final word in determining the law
Does the Parliament have the power to limit its own sovereignty?
- Two doctrines:
- Orthodox theory: no
- Self-embracing theory: yes
- Where does parliamentary sovereignty originate?
- The rule of recognition is a common law concept: it's the courts who accepted that statute law > common law
EXPRESS REPEAL, IMPLIED REPEAL, AND CONSTITUTIONAL STATUTES
- Talking about parliamentary limits, we must talk about repeal, the act of removing the legal force of a law
EXPRESS REPEAL
- When a later statute declares that an earlier statute is partially or entirely amended or repealed by its provisions
- There are no legal limitations , but there could be political limitations (see absurd examples)
IMPLIED REPEAL
- Once there was a wide acceptance of the fact that a later statute always prevails over an earlier one
- Ellen Street Estates v. Minister of Health (compensation) by Maughan LJ
- Now it's clear that there are certain Acts of Parliament which have a special significance
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SOVEREIGNTY, EU LAW AND BREXIT
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POLITICAL SOVEREIGNTY: ELECTIONS, REFERENDUMS, AND BREXIT
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