Parliamentary sovereignty – Character of constitution and common law Flashcards
What are procedural limitations to the Dicey theory?
One of the issues that has arisen has been whether it is possible for Parliament to introduce requirements to make it harder for subsequent Parliaments to change the law, for instance by requiring prior popular approval for repeal in a referendum or an enhanced “super majority” in Parliament.
This idea is what is known as entrenchment by `manner and form’.
What is entrenchment by `manner and form’?
Parliament can entrench legislation byrequiring that it can only be overturned if a future parliament uses a specific manner and form to overturn it, rather than merely making an ordinary Act of Parliament.
Does entrenchment of manner and form apply in the UK?
However, the possibility of manner and form entrenchment only seems to apply to subordinate legislatures such as the devolved assemblies in the UK.
Arguments have persisted, however, and the issue came to the fore again with the European Union Act 2011, which introduced a ‘referendum lock’. This was a statutory framework requiring a referendum to be held before further amendments could be made to the founding Treaties of the EU. The referendum lock provision in the Act seemed to extend this pledge beyond the life of that Parliament by creating a manner and form requirement.
(Note, however, that the status of the lock was never tested in the courts before the UK left the EU.)
How has parliamentary sovereignty been restricted by Parliament itself?
The traditional Diceyan theory of parliamentary supremacy came under pressure over the last half-century as a result of several significant legal and political developments.
*These have been brought about by Parliament itself, through the passing of reforming constitutional legislation.
*In other words, Parliament has imposed limitations upon itself as an institution which are binding but only for as long as subsequent Parliaments wish them to be so.
How has common law impacted parliamentary sovereignty?
Ex parte Simms: Parliament is able, if it wishes, to enact laws which undermine fundamental rights. However, if Parliament wished to do so, it has to state its intention in crystal clear terms. Otherwise, the courts, when exercising their powers of interpretation, will apply the strong presumption that Parliament did not intend to restrict rights.
Jackson (obiter): “step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified”.
What are ouster clauses?
One of the other most notable areas of tension between the courts and the executive have occurred when attempts have been made to “oust” the courts rights to scrutinise governmental actions and decisions through judicial review.
*The courts’ attitude towards these has been universally hostile and has been evidence since the late 1960s since the leading case of Anisminic.
*The courts are of the opinion that such clauses offend the rule of law.
