Parliamentary Sovereignty PDF

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Tutorial 4 : Parliamentary Sovereignty Aims Following this tutorial you should be confident about identifying the concept of Parliamentary Sovereignty as occupying a central place in the UK constitution. You should be able to critically reflect on different ideas about this concept, in particular, you should be aware of debates about whether constitutionally important Acts of Parliament may be entrenched, by making it more difficult than normal to entrench or repeal. By the end of the tutorial you should be able to explain and consider the importance of the doctrine of implied repeal. Reading In order to be able to prepare answers to the question please make sure that you have carefully read the following passages: Le Sueur et al, pp.51-84 [Please note the case HS2 is a case which we will cover in the context of the affect of EU Membership on Parliamentary Sovereignty - in Tutorial 7] You may also consult: Syrett, The Foundations of Public Law, pp.97-108

Questions Q1. How did the 19th Century constitutional writer A.V. Dicey define Parliamentary Sovereignty? A.V Dicey defines Parliamentary Sovereignty as being able to create and amend legislation but also a supremacy that cannot be challenged (positive and negative limb). Q2. How have the Courts approached the recognition of Parliamentary Sovereignty? Give examples from case law supporting your answer. The courts approached the recognition of Parliamentary Sovereignty by following any legislation passed by Parliament and stated that it was their role to do so. They say that their job is to determine the purpose of legislation according to what the legislator had in mind, not to determine the meaning themselves. Doctrine of implied repeal and British Railways Board v Pickins (would not declare an Act invalid) Q3. What are the reasons for drawing a distinction between political and legal limitations on Parliamentary Sovereignty? The reasons for drawing political and legal limitations on Parliamentary Sovereignty, political entrenchment and legal courts. Q4. Examine and come to a reasoned conclusion regarding which is the most likely ‘source’ of Parliamentary Sovereignty: The most likely ‘source’ of Parliamentary Sovereignty is the courts (common law) because the other candidates don’t seem to be strong enough to be as its source.

Q5. Answer the following questions: (a)What is meant by the term ‘entrenchment’? The term entrenchment refers to the establishment of different rules, making it harder to change legislation. Entrenchment’s purpose is to guarantee ‘long-lasting’ law. (b) What sort of reasons which would make ‘entrenchment’ a desirable constitutional possibility? Entrenchment could prevent fundamental constitutional characteristics and rights being repealed or amended too quickly or too easily (c) Is it possible to entrench legislation in the UK constitutional system? It seems that it wouldn’t be possible because this would mean creating laws that would restrain Parliament. This wouldn’t be in conformity with the concept of Parliamentary Sovereignty. Q6. What is meant by ‘implied repeal’? Why is the doctrine of implied repeal inappropriate for certain forms of legislation (your response here should reflect on the comments of Laws L.J in Thoburn v Sunderland City Council [2002] EWHC 195)? Implied repeal is the application of a later law passed by Parliament when the latter isn’t in conformity with a previous law. For certain forms of legislation, implied repeal seems to be inappropriate. This is because there are constitutional statutes and statutes with no constitutional significance. But constitutional statutes are not subject to this doctrine (Thoburn) Q7. Does the future of Parliamentary Sovereignty depend upon a more ‘nuanced’ way of recognising the role that the judiciary play in limiting Parliaments legislative sovereignty?

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