els unit 5 Flashcards

Question

what is the classic definition of the doctrine of parliamentary sovereignty and by who?

Answer 1

AV Dicey: The principle of parliamentary sovereignty means neither more nor less than 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 … as having a right to override or set aside the legislation of Parliament.

Answer 2

1. Parliament is the supreme law-making body and may enact or repeal laws on any subject. 2. No Parliament may be bound by a predecessor or bind a successor – a particular Act of Parliament cannot be entrenched, or be given a ‘higher’ status than any other Act. 3. No other person or body (but particularly a court of law) may question the validity of an Act of Parliament or declare that Act to be unlawful.

Answer 3

article 9: ‘freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’

Answer 4

Edinburgh & Dalkeith Railway Co v Wauchope (1842) once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void. Pickin v British Railways Board [1974]

Answer 5

1.Statute may override international law. Cheney v Conn 2. Statute may override constitutional conventions. Madzimbamuto v Lardner- Burke [1969] 3. Statute may alter the constitution. e.g European Union (Withdrawal) Act (EUWA) 2018 4. Statute may operate retrospectively Burmah Oil Co v Lord Advocate 5. Statute may abolish or curtail aspects of the royal prerogative. Crown Proceedings Act 1947

Answer 6

if a parliament expressly repeals the contents of an Act made by an earlier Parliament, that earlier Act will no longer be valid.

Answer 7

a later Act of Parliament will impliedly repeal the provisions of an earlier Act to the extent of any inconsistency between the two Acts Ellen Street Estates v Minister of Health [1934]

Answer 8

1. Acts of Union 2. Devolution 3. Acts of independence 4. Limits on the doctrine of implied repeal 5. The ‘manner and form’ debate 6. Henry VIII powers 7. The rule of law

Answer 9

The United Kingdom was formed following Acts of Union with Scotland in 1706–07 and Ireland in 1801. Some commentators have argued that, as a consequence, Parliament was born ‘unfree’, because it is limited by the terms of these Acts and cannot legislate so as to override their provisions.

Answer 10

in terms of UK devolving its some of its powers to Scotland Whether the UK Parliament can repeal the Scotland Act 1998 is a matter of debate. The Scotland Act 2016 states that the Scottish Parliament and Scottish Government are a permanent part of the constitutional arrangements of the UK, and that neither the Scottish Parliament nor Scottish Government may be abolished unless the people of Scotland vote for this in a referendum. Thus, without such a referendum, it would be difficult for the UK Parliament to do this

Answer 11

In strict legal terms, Parliament could reverse such legislation. But, as with Scottish devolution, both for political and practical reasons it is most unlikely that Parliament would ever consider repealing such legislation. Furthermore, even if Parliament did repeal the Acts of independence and resume legislating for the colonies, such legislation would be unenforceable.

Answer 12

It has been suggested, however, that the doctrine of implied repeal may not apply to ‘constitutional statutes’ the test for constitutional statutes are: (a) the statute must condition the legal relationship between citizen and state in some general, overarching manner; or (b) the statute must change the scope of fundamental constitutional rights. For a constitutional statute to be repealed, there had to be ‘express words’ or ‘words so specific that the inference of an actual determination to effect [the repeal of a constitutional statute] … was irresistible’.

Answer 13

can a Parliament bind its successors as to the procedure to be adopted when repealing legislation enacted by that earlier Parliament?

Answer 14

1. some people argue that there is no reason why Parliament could not make it ‘harder’ for a future Parliament to legislate. For example, an earlier Parliament could pass an Act and, within that Act, specify that the Act could be repealed only by a specified majority in Parliament (rather than a simple majority), or that, in addition to a Parliamentary vote, repeal could take place only if this was also supported in a referendum. In other words, the Act could be entrenched. 2. Another argument sometimes raised in support of the manner and form theory is that the rules for identifying an Act of Parliament derive from the common law (ie such rules are ‘judge- made’). As an Act of Parliament can override the common law, it is suggested that Parliament can alter the legal rules on which the validity of an Act of Parliament rests.

Answer 15

1. They argue that the meaning of ‘Parliament’ cannot be altered by an ordinary Act of Parliament, and so no Parliament has the power to redefine this meaning or to place limitations on the way in which a future Parliament may act.

Answer 16

- permit ministers to make changes to Acts of Parliament by delegated legislation. This is said to be contrary to the fundamental principle of the sovereignty of Parliament because it enables ministers – rather than Parliament – to make or change the law.

Answer 17

R (Jackson) v Attorney General [2005] The judges could therefore qualify the principle in exceptional circumstances to prevent Parliament from legislating in a manner that was contrary to the rule of law. Lord Steyn cited as an example if Parliament enacted legislation to abolish judicial review of executive action or, more generally, if Parliament abolished the role of the courts.

Answer 18

1. The doctrine of supremacy of European Union Law before brexit and during the transition period, EU law had supremacy. Post-brexit: UK statutes remain superior

Answer 19

1. Regulations: Regulations issued by the EU are directly applicable and automatically binding in all Member States without the need for any further legislation in the Member States. 2. Directives: Directives set out objectives to be achieved and oblige Member States to pass domestic legislation themselves to implement those objectives. Directives set a date by which Member States must implement them. 3. Decisions: Decisions are directly binding in the same way as Regulations, but only on those to whom they are addressed, which may be Member States, companies or individuals. 4. Recommendations and opinions: Recommendations and opinions are not binding.

Answer 20

Jurisprudence of the CJEU: Judgements of the CJEU are binding on the national courts of Member States. CJEU is not bound by its own previous decisions. it adheres to the principle of legal certainty and so will not lightly depart from its previous decisions. General principles of EU law: the CJEU. it has in its case law developed general principles of EU law. Many of these general principles have now found concrete expression in the European Charter of Fundamental Rights.

Answer 21

1. Proportionality: This means that measures taken by Union institutions and Member States when implementing EU Law should be appropriate and necessary for achieving a given aim, and should not go further than is necessary to achieve that aim. 2. Equality: This means that when dealing with persons in similar situations, Union institutions and Member States should not treat them differently, unless there is an objective justification for the difference in treatment. 3. Fundamental rights, ie internationally recognised human rights. 4. Legitimate expectation/legal certainty: This means that, in the absence of overriding concerns of public interest, persons are entitled to assume that EU Law will not be suddenly changed to their disadvantage.

Answer 22

a key principle that gave supremacy to EU law. 1. Direct effect allows individuals to enforce EU law rights in national courts 2. Van Gend en Loos (1963) ECJ held EU law can create rights for individuals → vertical direct effect (individual v state) 3.Vertical direct effect: EU law enforced against the state / state body Horizontal direct effect: EU law enforced against private parties

Answer 23

It means this, **in plain English**: --- What is the UK saying here? The UK **accepted that EU law was supreme**, but **only because Parliament chose to allow it**. --- Step-by-step explanation 1. **UK is a dualist system** * When the UK Government signs an international treaty (like EU treaties), **it does NOT automatically become UK law** * Only **Parliament** can change UK law 👉 So signing an EU treaty **alone** did nothing legally inside the UK. --- 2. **How EU law became part of UK law** * The Government signed the EU Treaty in 1972 * **Parliament passed the European Communities Act 1972 (ECA)** * That Act **gave EU law legal force in the UK** 👉 EU law applied in the UK **because Parliament said so**, not because the EU forced it. --- 3. **What the ECA 1972 actually did** * **s 2(1):** If EU law has *direct effect*, UK courts must enforce it * **s 2(2):** Government ministers can make regulations to implement EU law (e.g. Directives) * **s 2(4):** UK laws must be **read and applied consistently with EU law** → if there’s a conflict, EU law wins * **s 3(1):** UK courts must follow **CJEU interpretations of EU law** --- 4. **What this meant in practice** * UK courts had to: * apply EU law * disapply Acts of Parliament that conflicted with EU law * This happened **not because Parliament lost sovereignty**, but because: > Parliament **voluntarily limited itself** by passing the ECA 1972 ---

Answer 24

Here’s what **Article 267 references** mean, explained **clearly and simply**, then boiled down to an **exam-friendly takeaway**. --- What is Article 267 TFEU? **Article 267** sets up the **preliminary reference procedure**. It allows **national courts** to ask the **Court of Justice of the EU (ECJ)** questions about: * the **interpretation** of EU law, or * the **validity** of EU law so they can decide the case before them correctly. --- Why is Article 267 needed? * **Individuals enforce EU law in national courts**, not the CJEU * Individuals **cannot sue other individuals or states directly in the CJEU** * National courts therefore regularly face EU law issues 👉 Article 267 ensures **EU law is interpreted uniformly** across all Member States. --- Who can make a reference? * **Only a national “court or tribunal”** (a judicial body) * Not individuals themselves --- When can a reference be made? A national court **may refer** a question of EU law **if it is necessary** to decide the case. --- When is a reference *not* necessary? (CILFIT criteria) From **CILFIT v Ministero della Sanità (1982)**, a reference is **not required** if: 1. **Irrelevance** – the EU law question does not affect the outcome 2. **Acte éclairé** – the ECJ has already ruled on the issue 3. **Acte clair** – the meaning of EU law is so obvious that there is no reasonable doubt ⚠️ Courts should be cautious with *acte clair* because EU law is technical and multilingual. --- Mandatory vs permissive references **Mandatory jurisdiction** * Courts **of last instance** (no further appeal possible) * **Must refer** questions of EU law * Subject to the **CILFIT exceptions** **Permissive jurisdiction** * Lower courts whose decisions **can be appealed** * **May refer**, but are not obliged to --- When should permissive courts refer? According to the **2011 Information Note**, references are particularly useful when: * The question is **new** * It has **general importance** * Existing ECJ case law doesn’t clearly apply to the facts --- What happens after a reference? * The ECJ gives a **binding ruling on EU law** * The national court must: * apply that ruling * decide the case itself (the ECJ does not decide the facts) --- One-sentence exam takeaway > Article 267 TFEU allows national courts to refer questions of EU law to the ECJ to ensure uniform interpretation, with courts of last instance being obliged to refer unless a CILFIT exception applies.

Answer 25

R v Secretary of State, ex p Factortame If a UK statute conflicted with EU law, the UK court had to: disapply the conflicting UK provision apply EU law instead ⚠️ The UK law was not struck down — just set aside for that case

Answer 26

the Retained EU Law (Revocation and Reform) Act 2023 (REULA 2023) ended the supremacy of EU law in the UK from the end of 2023 and made other changes to retained EU law, including relabelling it as assimilated law.

els unit 5 Flashcards

(51 cards)