Friday, June 17, 2016

Public Law - Parliamentary Sovereignty

PrincipleCase Name / Definition
Enrolled Bill RulesIf it should appear a bill has been passed through both houses of Parliament and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, not what was done previous to its introduction or what passed in Parliament during its stage through both houses.

Lord Campbell, Edinburgh and Dalkeith Railway Co. v Wauchope [1842]
Parliamentary SovereigntyThe principle of Parliamentary Sovereignty means neither more nor less this, namely, that Parliament has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to set aside the legistration of Parliament.

AV Dicey

a. Parliament is the supreme law making body and make laws on ANY matter
b. Parliament cannot bind its successors
c. No body (including courts) can question the validity of an Act of Parliament
affirm Edinburgh and Dalkeith Railway v WauchopePickin v British Railways Board [1994]

HL said it had no constitutional authority to investigate the allegations that the act was improperly passed and so enforced the Act
QuorumHC = 40, HL = 30
Procedure of making a Bill into Act1st reading > 2nd reading > committee stage > report stage > 3rd readig > HL > Royal Assent
An earlier EU law prevailed over later conflicing national law to the extent of the conflictCosta v ENEL
Not necessary for the national court to request or await the prior setting aside of the provision by legislative or other meansSimmenthal
Conflict between EU and a MS's constitution. Whether the nature of the EU law, prevails over any conflicting provisions of a Bill of Rights in a MS's constitutionInternationale Handelsgesellschaft
Forbids any discrimination against EU citizens on grounds of nationalityTFEU Art 18
Direct EffectVan Gend en Loos critera

1. Clear and Precise
2. unconditional
3. not subject to further implementation by the MS or the EU
Implied RepealVauxhall Estates v Liverpool Corporation [1932]
presumption of non-retrospectivityBurmah Oil Co Ltd v Lord Advocate [1965] - receives compensation for destroyed plantation

War Damages Act 1965 - no compensation

retroactively exempts the Crown from liability in respect of damage to, or destruction of, property caused by acts lawfully done by the Crown during, or in contemplation of the outbreak of, a war in which it is engaged
Effects of Factortame1. Doctrine of implied repeal will not stop directly effective EU law prevailing
2. Direct applicable EU law will prevail over conflicting national law by reason of s2(4) ECA 1972
ECtHR - Interstate applicationECHR article 33
ECtHR - Individual petitionsECHR article 34
ECtHR - Cannot be made until all domestic remedies have been exhausted and within 6 months of any final domestic decisionECHR article 35
HRA 1998 - mechanisms for courts to deal with legislation that conflicts with convention rightss3 (interpretation), s4 (declaration of incompatibility), s10 fast track procedure - a government minister can amend a conflcting statute by laying a statutory instrument before Parliament
HRA s3R v A (No. 2) [2002]
Courts may adopt an interpretation which may appear linguistically strained - Lord Steyn
"modifying, altering, or supplementing the words" (Lord Hope)
HRA s3Ghaidan v Godin-Mendoza [2004]
cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation
HRA s4R v A - Declaration of incompatibility is a last resort - Lord Steyn

Ghaidan - Lord Steyn - Interpretation under s3(1) is the prime remedial remedy and resort to s4 must always be an exceptional case

R (Anderson) v SSHD [2002] courts have been warned to refrain from 'judicial vandalism' in using s3
HRA s10The government minister may respond by making a remedial order under s10 - conflict removed - no violation
HRA s8Remedies
Removed the HL's legislative veto, can now delay legislation foy 1 year apart from Money Bills and Bills to extend the life of ParliamentParliament Acts of 1911 and 1949
The Enrolled Bill Rule only Acts of Parliament NOT resolutions

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