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by chippiewill
854 days ago
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The best isn't necessarily a declaration of incompatibility, that's mostly specific to ECHR. In general if parliament passes legislation that contradicts earlier legislation that wasn't repealed and it wasn't deliberate then a judge can determine that parliament didn't intend to override that earlier legislation and that the new legislation doesn't apply in a given context. Parliamentary supremacy exists, but only where parliament takes a deliberate action. |
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Well, it exists under English law, it is an open question whether it exists to the same extent under Scottish law. As Lord Cooper said in the 1953 case of MacCormick v Lord Advocate, "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law". Lord Cooper suggested that, at least in theory, an Act of the UK Parliament could be ultra vires under Scottish law if it were contrary to the Treaty of Union. In the 1975 case of Gibson v Lord Advocate, Lord Keith suggested that possible examples of such invalid Acts might be a hypothetical Act to abolish Scottish law and replace it with English law, or a hypothetical Act to establish the Church of England (or the Scottish Episcopal Church) as the state church in Scotland, usurping the traditional role of the Church of Scotland; although he refrained from definitively ruling on those questions (since the outcome of the case at hand did not depend on them).