Parliamentary Sovereignty pt 1

Question 1

what specific part of Parliament does PS concern

Answer 1

-legislative / law making power

Question 2

who has a famous/ influential two part definition of PS

Answer 2

Dicey

Question 3

what is Dicey’s famous and influential 2 part definition of PS

Answer 3

The principle of Parliamentary sovereignty means neither more nor less than this,
namely, that Parliament thus defined has, under the English constitution,
(i) the right to make or unmake any law whatever; and, further, that
(ii) no person or body is recognised by the law of England as having a right
to override or set aside the legislation of Parliament.

Question 4

what are the 2 parts of Dicey’s definition

Answer 4

-PS means P has, under the English constitution:
(i) the right to make or unmake any law whatever; and, further, that
(ii) no person or body is recognised by the law of England as having a right
to override or set aside the legislation of Parliament.

Question 5

explain the first part of Dicey’s 2 part definition of PS

Answer 5

-P has legal authority to make any law whatsoever, including:
-making far-reaching constitutional changes (lec7+8)

Question 6

give 3 theorist examples of how far reaching the scope of Parliaments legal authority to make any law whatsoever

Answer 6

-L.Stephen 1882 states an Act of Parliament requiring all blue eyed babies be put to death would be allowed
-W.I Jennings 1959 says they could make smoking on the streets of Paris a criminal offence
-could prohibit Everton FC from being relegated in Premier League

Question 7

explain the second part of Dicey’s 2 part definition

Answer 7

-UK courts cannot invalidate or strike down an Act of Parliament or declare it unconstitutional or unlawful
-courts reject this possibility throughout case law since 1842 eg Edinburgh & Dalkeith Railway Co. v Wauchope
-even international law is subject to an Act of Parliament eg Mortensen v Peters (1906)

Question 8

what is a case example for the courts rejecting the possibility of striking down an Act of Parliament/ declare it unconstitutional or unlawul

Answer 8

Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & F.
710

Question 9

what is a case example for international law being subject to Acts of Parliament

Answer 9

Mortensen v Peters (1906) 8 F.(J.) 93: Cheney v Conn (1968) 1

Question 10

what is the start of historical development of PS

Answer 10

-build up tp English Civil War (1642-46)
-can royal power override Parliament’s legislation

Question 11

what are the conflicting views in the build up to the English Civil War (1642-46)

Answer 11

-Coke CJ, The Case of Proclamations (1611) 12 Co. Rep. 74, at 76 argues “ the King hath no prerogative, but that which the law and land allows him”
-in R v Hampden (The Case of Ship Money (1637) 3 State Tr 826) it is said ‘the King may give laws to his subjects, and this does not detract
from him, when he does it in Parliament’

Question 12

how does the English Civil War 1642-46 end

Answer 12

-Parliament wins against the Crown and Charles I executed Jan 1649 after trial in Parliament

Question 13

what is the timeline from 1649-1701 on how PS developed

Answer 13

-1649-1660 England as a (Republican) Commonwealth
- 1653-1660 Instrument of Government – a sort of ‘written constitution’
-1660 Restoration of Monarchy
- 1688 ‘Glorious’ Revolution – changing monarch to William & Mary
- Parliamentary Limitation of Crown (Bill of Rights 1689) and Control Over Line of Succession Act 1701

Question 14

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Question 15

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Question 16

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Question 17

give 3 main points on the traditional understanding of PS

Answer 17

(i) The legally unlimited legislative power of the UK Parliament
(ii) Based on history of Parliament taking power over the Crown
(iii) Not a rule created by judicial decisions, but a legal and political reality MAINTAINED ??CHECK SLIDE in case law

Question 18

what is the first key case law on PS

Answer 18

British Railways Board v Pickin [1974] A.C.
765

Question 19

what are the facts of British Railways Board v Pickin [1974] A.C.
765

Answer 19

Pickin owned land next to railway and would
obtain the adjacent land if abandoned
- British Railways Act 1968 passed that right to
the BRB
- Pickin argued Parliament had been fraudulently
misled into passing Act, and that he had not been notified of his loss of rights

Question 20

what did Lord Reid argue in Pickins case

Answer 20

-‘The idea that a court is entitled to disregard a provision in an
Act of Parliament on any ground must seem strange and startling to
anyone with any knowledge of the history and law of our constitution,
-but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.’
-basically idea of overruling Act of Parliament is strange and obsolete idea, not happening

Question 21

what does Lord morris say in Pickins case

Answer 21

-For the courts to hear arguments challenging the validity of
Acts of Parliament ‘would be dangerous and impermissible. It is the
function of the courts to administer the laws which Parliament has
enacted.
- When an enactment is passed there is finality unless and until it is
amended or repealed by Parliament. In the courts there may be argument
as to the correct interpretation of the enactment: there must be none as to
whether it should be on the Statute Book at all.’ (788-789)

Question 22

what is the second key case for PS

Answer 22

R. (Jackson) v Attorney General [2005] UKHL 56

Question 23

what are the facts of R. (Jackson) v Attorney General [2005] UKHL 56

Answer 23

-Hunting Act 2004 passed banning hunting with dogs
- 2004 Act passed using the Parliament Act 1949
process without approval of HoL
- Jackson challenged validity of the 1949 Act process,
because that was not approved by HoL
- if 1949 Act process was invalid, so was Hunting Act 2004

Question 24

what does Lord Bingham say in Jackson (2005)

Answer 24

-The 1949 Act and the 2004 Act are Acts of Parliament of full legal effect

Question 25

what is the outcome of Pickins (1974) and Jackson (2005)

Answer 25

-both failed to overrule an Act of Parliament

Question 26

what does Lord Steyn say in Jackson (2005)

Answer 26

-argues Dicey’s view of PS as absolute may be out of place in the modern constitution
-PS is still the general principle of constitution as a construct of common law/ principle created by judges
-since judges made that principle they may have to qualify a differing principle
-“a new SC may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.’ [102]

Question 27

give 4 reflections/tensions/change from Pickins and Jackson

Answer 27

-Pickin rejects any challenge to an Act of Parliament in very
strong terms
- two Acts of Parliament also upheld as valid in Jackson
BUT:
- in Jackson they hear the full argument and decide the case on its merits!
- in Jackson there are (three) judges questioning the existence of PS

Question 28

give 2 reasons why we still have PS

Answer 28

-Legally unlimited law-making power…
- …but power still constrained by: politics / democracy /
morality / practicality

Question 29

give 5 virtues of PS

Answer 29

-Ensures constitutional primacy of democratic decision- making…
- HoC within Parliament is (now) only directly elected part of UK central government
- far from perfect (!), but relative legitimacy key
-judiciary, in contrast: unelected, unrepresentative,
(politically) unaccountable
- justifies (?) absence of legal limits on law-making power

Question 30

what are the 2 functions of PS

Answer 30

(i) a central organising principle
(ii) a constitutional focus point

Question 31

explain the first function of PS (a central organising principle)

Answer 31

-structure/hierarchy of sources organised by ref to PS
- operation of other branches of state organised by ref to
PS

Question 32

explain the second function of PS (A constitutional focal point)

Answer 32

• PS is an access point for understanding the nature of the UK constitution
• transmits a symbolic message about the (potential) legitimacy of the UK constitution

Question 33

what is the main uncertainty of PS

Answer 33

-Can Parliament use its unlimited power to limit future
Parliaments?
- Or: can PS be used to limit (future) PS

Question 34

what does Dicey argue about Parliament using PS to limit future Parliament

Answer 34

-NO; potentially this is one limit of PS? that it cannot limit future Parliamets

Question 35

what do others/ Jennings say on whether Parliament can use PS to limit future Parliaments

Answer 35

-MAYBE; depending on circs
-this is called the ‘manner and form’ theory of PS

Question 36

give 4 conclusions on PS

Answer 36

-PS is a legal doctrine at the core of the constitution
- it has a democratic justification
- there are signs that the traditional approach (eg in Pickin) may be changing (eg in Jackson)
- there are increasing challenges to its continuing status