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Parliamentary Sovereignty 1 - Coggle Diagram
Parliamentary Sovereignty 1
History
Glorious Revolution (struggle between Monarch and P) lead to Bill of Rights 1689 & Act of Settlement 1701. This enshrined P sovereignty.
Dicey's Theory
Parliament is the supreme law making body (political limits but no legal limitation)
Ex parte Simms: P can legislate against fundamental human rights
Cheney v Conn- Parliament can legislate against public international law (statute is highest form of law in the UK)
Mortensen v Peters- no geographical limitations, even if this produces a conflict with international law.
Burmah Oil Co v Lord Advocate- can pass Acts which apply retrospectively (War Damage Act 1965)
No Parliament may be bound by a predecessor Parliament or bind a successor (absence of entrenchment)
see repeal
No person or body may question validity of an Act of Parliament
Judicial Review does not apply to statute and we cannot quash Acts of Parliament even when there are procedural errors
Enrolled Bill Rule: when a Bill becomes an Act there is a finality. We cannot go back if there was a procedural error. This can only be changed through amendment or repeal, as stated by Lord Morris in Pickin v British Railways Board
No Parliament may be bound by a predecessor or bind a successor: repeals
Express repeal
New Act states earlier Act should be replaced eg. Interception of Communications Act replaced Inestiagtory Powers Act
Implied repeal
If new Act partially or wholly inconsistent with a previous Act the earlier Act is impliedly repealed. This comes from the presumption that P would not intend for two incompatible statutes to take effect at the same time.
Both Vauxhall & Ellen Street Estates: show P cannot bind its successors because the Act stated it should prevail over any other statute and this was not allowed by the courts. Implied repeal prevailed and they used the newer statute
Entrenchment by 'manner and form': imposing procedural limitations to make it harder for subsequent Parliament's to change the law
Diceyan view would say yes it can be done but this would not be binding on successor Parlkiament
Trethowan: New South Wales was a legislature created by Parliament and they passed an Act stating they needed referendum approval before abolition of the upper chamber. They abolished the upper chamber without referendum approval. Privy Council decided this Parliament did bind itself through the Act so they should have had a referendum. However, this is only because it is a subordinate legislature
Thoburn- decided P cannot stipulate as to manner and form of any subsequent legislation.
Jackson v AG- Lady Hale states if P can redefine itself downwards, it can also redefine itself upwards eg. require more like a referedum lock
Jackson v AG: Jackson claimed Hunting Act 2004 invalid as the Act it was created under was also invalid. This was a turning point as a case questioning an Act of Parliament went to the House of Lords. It was said the Act was valid but obiter stated: P sovereignty is no longer, if it ever was, absolute
Anisminic: case where statute tried to stop something being challengeable by law. Courts found the ouster clause was not effective and they could still challenge the Government in court.