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Public Law - Parliamentary Supremacy - Summary (Graduate Diploma in Law/ LLB Law)
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Summary of Parliamentary Supremacy from a GDL graduate with Distinction.
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What is Parliamentary Supremacy? Parliament is the supreme law-making power in the UK who my pass or amend or repeal any primary legislation it chooses.Dicey = Parliament has “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
override or set aside the legislation of Parliament”. Parliamentary supremacy is a “dominant characteristic” of the UK constitution
Parliament is supreme… Parliament is not supreme…
Parliament can make or unmake any law whatever: no equivalent to the principle stated Recent judicial challenges: R (Jackson) v AG: Hunting Act 2004 was
by Chief Justice Marshall in Marbury v Madison that if a statute is repugnant challenged on the basis it had been passed using the Parliament Act 1949
with the constitution it is void which was invalid as it had been passed without the consent of the
House of Lords using the Parliament Act 1911. Validity of 1911 and
Hunting Act upheld.
Lord Reid in Madzimbamuto v Larder Burke: while it may be morally or Membership of the EU: Costa v ENEL: established supremacy of EU law. MS
politically unconstitutional for Parliament to do certain things, this does not have restricted their sovereign rights and created a body of law
undermine the legal power of Parliament to legislate applicable both to their nationals and to themselves
No Parliament can bind itself or its successors: would not be supreme unless it could Italian Minister of France v Simmenthal: national courts must set aside
change laws. Laws can be changed via express repeal or implied repeal. Ellen any provision of national law which may conflict with EU law.
Street Estates v MoH: “If in a subsequent Act, Parliament chooses to make it Macarthys v Smith: whenever there is any inconsistency in laws, EU has
plain that the earlier statute is being repealed, effect must be given to that priority. – clear challenge to parliamentary supremacy. However UK
intention” chose to give up powers and could choose to take it back by expressly
repealing the ECA 1972
No one can challenge the validity of an Act of Parliament: Enrolled bill rule = courts have ECA 1972: s.2(1) courts must give effect to EU law. Factortame Lord
no jurisdiction once a bill has become an Act. Cheney v Conn: anything enacted Bridge: interpreted his powers under s.2(1) to ‘disapply’ Merchant
in a statute cannot be unlawful. Edinburgh v Dalkeith Railway Co v Wauchope: Shipping Act 1988 after seeking instruction from the ECJ.
no judicial review of the manner in which legislation has been passed
Lord Reid in British Railway Board v Pickin: British Railways Act 1968 – “the Constitutional Statutes: Thoburn v Sunderland CC: provision should have
function of the court is to construe and apply the enactments of Parliament. The been implied repealed but Laws LJ held: certain ‘constitutional statutes’
court has no concern with the manner in which Parliament or its officers carry cannot be impliedly repealed. Ellen Street Estates v MoH: Maugham LJ
out its Standing Orders to perform these Functions”. held implied repeal only operates ‘because it is the will of the legislature’
No territorial extent: Ivor Jennings 1959: Parliamentary supremacy means HRA 1998: gives courts power to interpret law in a way that is
Parliament can legislate for all people and all places, if it enacts that smoking is compatible with the ECHR ‘as far as is possible to do so’ (s.3) and
an offence in the streets of Paris, then it is an offence. Mortensen v Peters: declare legislation incompatible with the ECHR (s.4). Section 4
Parliament determines the limit of British waters even contrary to international empowers the courts to challenge parliamentary legislation. Courts
law cannot strike down law but can send it back for review.
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