(4) Primary Legislation and other Sources of Law Flashcards Preview

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1

What is the relationship between primary legislation and other sources of law?

Statutory provisions provide the supreme source of Law in the UK, naturally it follows from this that Primary Legislation is to be considered at the pinnacle of this hierarchy, while the relationship between various different statutes is governed by implied and express repeal the responsibility of articulating the relationship between statutes and other sources of the UK Constitution falls upon the judges.

2

What is the relationship between primary legislation and the common law?

The supremacy of Primary Legislation over domestic sources of Law means that Acts of Parliament will override Common, judicially made, Law in the event that they clash. Parliament may choose to legislate in order to bring areas previously governed by the Common Law under Primary Legislation or perhaps to create clarity in areas regulated in the main by the Common Law.

3

What is the relationship between primary legislation and the prerogative?

Just as it can overrule the Common Law, Primary Legislation has supremacy over the prerogative and can override any pre-existing prerogative power. Primary Legislation may curtail the power of the prerogative either expressly through words or more indirectly through 'necessary implication'. Prerogative power cannot be used to 'change English Common or Statute Law' or to 'frustrate the will of Parliament'.

4

What is the relationship between primary legislation and international law?

The dualist nature of the UK flows fairly naturally from the doctrine of Parliamentary Sovereignty. This principle states that there should be no higher form of authority than Primary Legislation, giving automatic effect to International Law would undermine this principle. Furthermore, in the UK it is the role of Parliament and not the executive (the government) to legislate, giving automatic effect to International Laws agreed upon via Treaties signed by government officials would again undermine this.

5

What is the relationship between primary legislation and other constitutional principles?

While the constitutional principles of the Rule of Law and the Separation of Powers are both regarded as significant influences in the UK Constitution, neither has, to date, been considered so fundamentally significant as to displace the validity of an Act of Parliament. Indeed the 1998 HRA permits scrutiny of Acts of Parliament on Human Rights Grounds but does not empower courts to strike them down or invalidate them. The furthest a court can go in challenging an Act of Parliament in this sense is through issuing a Declaration of Incompatibility - even Declarations of Incompatibility, however, hold no legally binding authority and amount to little more than political pressure.