Notes on "Is Parliament still sovereign?"

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Is Parliament still sovereign?

Law on any matter

  • Prlmnts right to make law on any matter has been subject of debate in recent years, particularly prlmnt’s right to make retrospective laws and to reform itself
  • The War Crimes Act 1991 gave British courts right to try people who became British Citizens after 1990 for crimes they committed in Nazi-occupied Europe
  • Opponents feared evidence relating to events that occurred half a century ago could be robust (only 1 person tried under act)
  • Prlmnt act 1911 = prime example of prlmnt’s right to reform itself
  • It said that H o L could no longer block bills approved by H o C but could only delay for 2 years --- > then reduced to 1 year by prlmnt act 1949
  • Prlntary sovereignty effectively meant = sovereignty of Commons
  • Validity of 1949 act challenged by opponents of fox hunting

→ argued that Hunting Act 2004 = invalid b/c it passed using prlmnt act 1949 which itself had been enacted under prlmnt act 1911

Legislative supremacy

  • Second element of prlmntary sovereignty = legislative supremacy
  • In many liberal democracies, a constitutional court has power to declare legislation to be unconstitutional and annul it, but not the case in Britain
  • As prlmnt enjoys leg suprem, courts cannot strike down statute law on grounds that its unconstitutional or simple majority votes in prlmnt
  • Since no prlmnt may bind its successorsm all leg = equal status
  • Leg that brings about major constitutional change = same status as animal welfare law
  • Some experts argue that leg of such constitutional significance should be considered to be de facto higher law
  • Although prlmnt retains legal right to repeal the Scotland land act 1998, its politically unthinkable that it would do so against the wishes of the Scottish prlmnt and people
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Key challenges

There have been 4 major contemporary challenges to prlmntary sovereignty:

  • EU membership
  • The Human Rights Act
  • Devolution
  • Referendums

European Union Membership

  • Britain’s membership of EU provides the most significant challenges to the traditional view of prlmntary sovereignty
  • The Eurpean Communities Act 1972 gave future community law (now EU law) legal force in the UK and denied effectiveness to national leg that conflicts with it
  • EU law has primacy over domestic law
  • In cases of confluct, British law must be amended so that it complies with EU leg
  • The key example was provided in ...

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