(4) Legal & Political Sovereignty Flashcards
What are the issues with the origins of Parliamentary Sovereignty?
- There is no codified constitution from which it can be said to stem
- It cannot be said to come from an entrenched constitutional document
- It cannot be said to come from the Common Law for this would place the Courts above Parliament
What do some academic commentators argue is the basis for Parliamentary Sovereignty?
For some contemporary commentators the importance of Parliamentary Sovereignty stems from its democratic nature. Parliament should be the dominant force in the constitution because of its largely democratic mandate – the majority of the members of it are elected by the public.
What is the flaw with the democratic foundation argument of Parliamentary Sovereignty’s origins?
While such a position explains why Parliament continues to be of relevance and importance it perhaps fails to explain the origins of Parliamentary Sovereignty as Parliament historically has not been able to boast such democratic features/associations.
How did the relationship between Monarch and Parliament develop the notion of Parliamentary Sovereignty?
The seventeenth century struggles between Parliament and the Monarchy, in part, gave rise to the idea of Parliamentary Supremacy. These disputes centred around where ultimate constitutional authority should reside – the Monarch of Parliament.
What was the significance of the Glorious Revolution 1688 and the Act of Settlement 1701 in developing the modern constitution?
These two pieces of legislation together cemented the transition from monarchical to parliamentary government and established the ultimate supremacy of parliament over the competing source of constitutional authority in the state – the Monarch.
Do Parliament enjoy completely unfettered legislative power?
In Dicey’s definition Parliament may theoretically legislate to achieve any aim – there is not an implication, however, that there are no restrains upon Parliament when attempting to do so.
How may Parliament be subject to restraints when seeking to pass legislation?
Dicey’s definition was very much a legal one – Parliament’s legally unfettered power may, however, be subject to political conditions. Indeed, Dicey’s position can be said to ‘denot[e] only an absence of legal limitations, not the absence of all limitations or, a more appropriate word, inhibitions on Parliament’s actions’.
What is the importance of these potential political restraints on Parliament’s legislative power?
These political conditions or expectations serve to practically prevent Parliament from passing given enactments – this tempers the potential absolutism of Parliament’s legal power.
Can the courts find Acts of Parliament invalid under Parliamentary Sovereignty?
No, the courts have made clear that they are unable to Acts (say found to be morally abhorrent by the general public) to be invalid.
What did Baroness Hale say about the restrictions on Parliamentary Sovereignty in the Jackson Case?
She noted – ‘the constraints upon what Parliament can do are political and diplomatic rather than constitutional’.
What is the process of devolution?
Essentially, Devolution is the process of delegating power from a central legal authority (Parliament at Westminster) to a subordinate body (Scottish Parliament).
How does devolution potentially create issues in regards to Parliament’s sovereignty?
On an orthodox reading, devolution is compatible with parliamentary sovereignty because it involves the delegation of power from Westminster by statute, rather than the division of it, so ‘does not affect the power of the Parliament of the UK to make laws for Scotland’, if Parliament wished to legislate in an area of devolved competence, or restrict the competence they grant, they need only enact subsequent legislation. However, practically this is more complicated as constitutional conventions may present a barrier to this.
How does Bogdanor suggest the devolution of power to Scotland by the 1998 Scotland Act may limit Parliament’s legislative power?
As the 1998 Act was passed by 75% of the Scottish electorate at a referendum Bogdanor has suggested it has an ‘extra validity’. Therefore he suggests that a similar Scottish endorsement ought to be required for Parliament to repeal or significantly amend the scheme of devolution. This ‘political entrenchment’ seems to place a restriction of sorts upon Parliament’s ability to legislate to limit the powers available to the institutions of devolved government.
How does The Sewel Convention threaten the unfettered legislative power of parliament?
Essentially, this constitutional convention holds that Parliament will not ordinarily legislate on a devolved issue affecting Scotland unless the consent of the Scottish Parliament has been gained in an advance via a legislative consent motion. Thus limiting the legislative power of Parliament.
How severe is the infringement posed by the Sewel Convention?
Despite being formalised by the Scotland Act 2016 the Sewel Convention remains operative as a ‘political restriction on the activity of the UK Parliament’ and thus wouldn’t be judicially-enforced – as established by the Supreme Court in the Miller Case.
