Parliamentary sovereignty - historical background and theory Flashcards
What is the history of parliamentary sovereignty?
*The `Glorious Revolution’ marked the most significant long-term turning point in English constitutional history.
*This was reflected in key provisions of the Bill of Rights 1689 and the Act of Settlement 1701.
*These founding pieces of legislation effectively enriched the sovereignty of Parliament as an institution.
*After this, no monarchs were able to `dispense with laws’ that they did not like.
*Statute, made by Parliament became the highest form of law.
What has been the evolution of parliamentary authority?
It has been a gradual shift from an absolutist monarchy to today’s form of constitutional monarchy.
Monarchs continued to have considerable political power and influence into the 19th century and the country remained an oligarchy for a considerable period.
There were three electoral Reform Acts in the 19th century, during which time the franchise expanded gradually, but it was not until 1928 that all men and women (over the age of 21) could vote on an equal basis.
It was not until the 20th century that one could say that the principle of parliamentary sovereignty was directly linked to the ideal of a full democracy.
What is Dicey’s theory?
*Parliament is the supreme law-making body
*No parliament may be bound by a predecessor or may bind a successor
*No person or body may question the validity of an enactment of Parliament.
What are examples that Parliament is a supreme law-making body?
*Parliament can legislate, if it wishes, contrary to fundamental rights.
However, need to remember Lord Hoffman’s legality principle that if Parliament wishes to enact laws which undermine fundamental rights the language of the legislation must be completely clear.
*Parliament can legislate contrary to international law - there have been occasions where UK courts have enforced UK statute rather than international law.
*Parliament can pass legislation that has a retrospective effect even though this is not seen as desirable in rule of law terms. For example, War Damages Act 1965 and War Crimes Act 1991.
What does no entrenchment mean in Dicey’s theory?
The UK’s constitution does not possess any formal arrangements to entrench its constitutional fundamentals. This is unlike the vast majority of other democratic states, which tend to have mechanisms to make it harder to change constitutional basics.
*In the UK, the constitution can potentially be drastically changed by a single Act of Parliament.
*This could happen through new law or repeal of existing law.
*In the UK repeal can take an express or implied form.
What is implied repeal?
This comes about if a new Act is partially or wholly inconsistent with a previous Act. If so, the previous Act is repealed to the extent of the inconsistency.
What is the significance of implied repeal?
Parliament cannot bind its successors so as to prevent a statute from being impliedly repealed by a later one which is incompatible with it.
- Implied repeal is a reflection of the traditional view that sovereignty takes a `continuing form’ and that each new Parliament should have equal freedom of manoeuvre in creating new legislation.
If a prior act states it will prevail over other statutes, will it?
No.
What is validity of acts of parliament under Dicey’s theory?
Neither the manner in which legislation is passed, nor the substance of the law, should be reviewable by the courts.
Therefore, the UK courts are not able to quash or invalidate primary legislation, even if this legislation be deemed `unconstitutional’ or contrary to international law standards.
What is the enrolled bill rule?
There cannot be judicial review of the way in which legislation was passed through the UK Parliament. Once a bill is enrolled i.e. has become an Act of Parliament, it is impossible to go behind that.
