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4.1.3 Parliamentary Sovereignty Lecture – Hands on Examples

The following are some example essay and problems questions, which you may find in an exam regarding the topic on Parliamentary sovereignty. Good answers should show evidence of an understanding of the main principles involved as well as reference to the main case law on the subject. For good marks in essay questions, reference to reading beyond a single textbook is also recommended. In the exam, it is useful to make a note of the main points

Q1 This fictitious scenario involves the introduction of a payment by those previously entitled to free school meals, in order to reduce the cost to the taxpayer. The No Longer Free School Meals Act 2011 is passed that those in receipt of free school meals will now be required to pay a fee based on a percentage of the normal cost of school meals, which is fixed in the Act.  Section 3 of the 2011 Act states that 'provisions of this Act are to take precedence over Acts passed or to be passed'.  Section 4 states that 'this Act is not to be amended or repealed unless the consent of Jamie Oliver is obtained'.  The new scheme proves to be very unpopular with protests being held due to its negative impact upon low-income families. The government introduces the Free School Meals (Amendment) Act 2012, which reintroduces free school meals. Jamie Oliver was not consulted prior to doing this.

Debbie and Brian have received a bill for 25% of the regular price of school meals for all of their three children who are entitled to free or reduced cost school meals. Advise Brian and Debbie whether to pay the bill.

Q2 Evaluate, the extent to which the law of the European Union has had an impact on parliamentary sovereigntyin the UK. If the UK is to leave the European Union, what steps will the UK Parliament be required to take in order to remove the application of EU law in the UK?

Q3 Critically access Dicey's assertion that Parliament can pass, or repeal any law that it wishes and that an Act of Parliament cannot be invalidated by the courts.

  • Question 1
  • You should start your answer by identifying the parties, the causes of action and the issues in the case.
  • Refer to the enrolled bill rule, that the courts have no jurisdiction once a bill has become an Act
  • Refer to Edinburgh v Dalkeith Railway v Wauchope [1842] UKHL 710, 8 ER 279; Lee v Bude and Torrington Junction Railway (1871); and British Railways Board v Pickin [1974] AC 765
  • The effect of sections 3 and 4 of the 2011 Act, defined express and implied repeal, explain the meaning of 'entrenchment'; explain the rule that Parliament cannot bind its successors.
  • Debbie and Brian could rely upon: Ellen Street Estates Ltd v Minster of Health [1934] 1KB 590; the school could rely upon Harris v Minister of the Interior (1952) 4 SA 769
  • You should also explain the prospective formula and its effect on express and implied repeal. If the 2012 Act expressly repeals the 2011 Act, the 2012 Act should prevail.
  • Reference can also be made to the Human Rights Act 1998 and European Union Law. At present the European Communities Act 1972 incorporated the Treaty of Accession 1972 into UK law. The impact of this is that EU law is effectively superior to legislation that the Westminster Parliament may wish to enact.
  • Question 2
  • First it is relevant to mention that the UK have voted to leave the European Union and are currently in negotiations to how this can be accomplished
  • Begin with mentioning the Treaty of Accession 1972 and how this required domestic legislation to incorporate it into UK law in the form of the European Communities Act 1972
  • Mention cases of NV Algemene Trasport-Expedite Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62 and Flaminio Costa v ENEL (1964) Case 6/64, in which the ECJ held that states have limited their sovereign right. The consequence of this is that any subsequent legislation passed in a Member State, which is contrary to European Community law cannot prevail.
  • This was confirmed in the UK in Blackburn v Attorney General [1971] 2 All ER 1380, where Lord Denning stated that although in legal theory Parliament cannot bind its successors and declare an Act of Parliament irreversible, the practical political situation must override theoretical legal principles.
  • Thus, the consequence has been a purposive approach to statutory interpretation. e.g. Pickstone v Freemans plc [1989] AC 66 and Lister v Forth Dry Dock & Engineering Co Ltd [1988] UKHL 10. The purposive approach requires courts to interpret UK legislation in accordance with EU law.
  • R vSecretary of State for Transport, ex parteFactortameECJ ([1990] 2 Lloyds Rep 351, [1990] 3 CMLR 1, C-213/89 (Factortame No.1) the ECJ held that a rule of national law which acts as the sole obstacle to interim relief in a case concerning EC law, must be set aside. The ECJ also found that the Merchant Shipping Act 1998 contravened EC law.
  • Thornburn v Sunderland City Council Gazette 11-Apr-2002, [2001] EWCH Admin 195, [2003] QB 151, all specific rights and obligations created by European Law were incorporated intodomestic law and now rank supreme to UK law.
  • Finally, to overlay concerns about Parliamentary Sovereignty being eroded s.18 European Union Act 2011 confirmed the direction applicable or directly effective EU law takes effect in the UK as a result of the European Communities Act 1972. To prevent EU law from having an effect in the UK, Parliament would need to repeal the 1972 Act.
  • Question 3
  • Although Parliament can enact any law, politically this may not be possible. For example, it is unlikely to be politically acceptable to pass a law which prevents Billionaires from voting.
  • There are some practical limitations on Parliaments legislative competence, e.g. you may wish to refer to British Coal Corporation v R [1935] AC 500, and Madzimbanuto v Lardner-Burke [1969] 1 AC 645 
  • You can also distinguish between the traditional formulation of parliamentary sovereignty in Scotland and England, referring to McCormick v Lord Advocate (1953) SC 396, stating that practically any change in the relationship between England and Scotland would require significant political negotiations to make an alteration to this relationship.

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