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Parliamentary Sovereignty 2 - Coggle Diagram
Parliamentary Sovereignty 2
European Union Membership
If UK wants to incorporate international legal systems, they need to pass a statute giving power to this. This is because the UK is a dualist legal system, with law created by Parliament as supreme
History
Treaty of Accession 1972 meant UK became a member of the European Communities
Parliament passed European Communities Act 1972 to incorporate treaty into English law
Treaty was amended into Maastricht Treaty which re-established it as the European Union
S2(1) ECA meant treates were given legal effect in UK
S3(1) ECA states questions of law relating to EU should be determined by principles of European Court of Justice (recently known as Court of Justice of EU)
Costa v E.N.E.L: established EU Law supremacy, it prevails over domestic law
S2(4) ECA states any enactment passed or to be passed shall be construed and have effect subject to EU law
Implied repeal meant any Acts before 1972 were incompatible and EU law prevailed
Creates tension with Vauxhall Estates principle that P cannot bind itself & cannot attempt to prevent implied repeal in future
Case law
Macarthys Ltd v Smith- example of presumption applied which was that P intended to draft all legislation compatible with EU law and so it would be a mistake by the draftsman. EU law prevails
Factortame: P passed a law to prevent fishermen from using UK fishing quotas but it was incompatible with EU law. Law Lords could not interpret in a way which gave effect to EU law so they referred it to ECJ for advice. After, Law Lords decided they could suspend the Act for this matter. This created controversy but Lord Bridge said P voluntarily limited their supremacy through passing the ECA
Later cases this has been done without even referring to ECJ
Thoburn: Later Act conflicted with ECA but it was decided it was not incompatible. Obiter stated: Implied repeal no longer seemed to apply with EU law or any important constitutional laws like HRA. There was an exception to implied repeal.
Devolution
S28(7) Scotland Act 1998 states Westminster Parliament still supreme
Sewell Convention- P should not legislate on devolved matters without consent of relevant legislature
Human Rights Act 1998
Incorporated ECHR
S2: Any court or tribunal determining a question which has arisen in connection with a convention right must take into account the jurisprudence of the European Court of Human Rights, so far as the court or tribunal has held it is relevant to the question in the proceedings
S3: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention Rights
R v A (complainant's sexual history): Act prevented him from using evidence of complainant's sexual history which infringed on right to a fair trial. Lord Steyn interpreted Act to read a new provision into the Act 'evidence or questioning, which was required to ensure a fair trial, should not be treated as inadmissible
generally, from this point on Judges can interpret in a way that gives effect to ECHR and conflicts P so far as it doesn't go against the grain of underlying policy of legislation
S4(2): If the court is satisfied a provision is incompatible with a convention right, it may make a declaration of incompatibility
This refers the legislation to Parliament rather than immediately invalidating it. P are usually compelled to do something about it
eg. A & Others or Belmarsh