Sovereignty Flashcards
Dicey: the Basics
- Dicey wanted to reduce constitutional law to set of rules - legal positivist
- Believed there were two kinds of law - rules (statutes) and conventions
Dicey’s Three Principles
1. Legislative sovereignty of Parliament
- Principle of sovereignty can be introduced positively (no limit on power of legislature: ‘Parliament has, under the English constitution, the right to make or unmake any law whatever’) or negatively (‘no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’)
Dicey’s Three Principles
2. Universal rule throughout the constitution of the ordinary law (the rule of law)
- Absolute supremacy or regular as opposed to the influence of arbitrary power - law is a set of rules which have specific qualities: prospective, general stable. Importance of establishing a set of rules
- Equality before the law
- ‘The law of the constitution is not the source but the consequence of the rights of individuals’ - the English are free born people, with intrinsic rights that are civil liberties, which protect us from the law. We have civil liberties restrained by the law
Dicey’s Three Principles
3. Importance of conventions in ordering the constitution
- Conceptually legislative sovereignty and the rule of law are fundamentally incompatible.
- Parliament can, under the principle of sovereignty, unjustly exercise arbitrary power on citizens, which is intrinsically against civil liberties.
- Dicey says although they are incompatible, these two principles are reconcilable through conventions. - -Although, parliament has absolute sovereignty they will not pass legislation that is incompatible to the rule of law due to conventions.
Basics of Sovereignty
- There is no legal limit on what it is constitutional for Parliament to do:
- Parliament can pass laws to extend its own life: 1910, 1935
- The line of succession can be altered by an Act of Parliament
- Composition of the Houses of Parliament can be reformed by Parliament
- Parliament can change the law retrospectively
Example of Parliament changing the law retrospectively
Burmah Oil v Lord Advocate [1965] AC 75
- Parliament created retrospective law in the form of War Damages Act 1965, s 1
- Demonstrative of the unlimited power of Parliament
Exemplification of absolute sovereignty
An Act of Parliament cannot entrench itself and cannot bind successors - two acts of parliament which are incompatible, the later act prevails (Doctrine of implied repeal (Vauxhall Estates v Liverpool Corporation [1932] 1 KB 733))
- The source of this is viewed as a ‘legal fact’ (Dicey), ‘ultimate political fact’ (Hart/Wade)
Does Parliament have the power to make primary legislation contrary to basic rights?
Yes:
Judges recognise this practical reality: “Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuse to recognise it as law.”
- Once bills are given Royal Assent to become Acts of Parliament, their legality cannot be challenged in the courts.
Self-imposed Limits on Sovereignty Today
1. Decolonisation
Statute of Westminster 1931
- Removed limitations of the competence of Dominions Parliaments (Canada, Australia, New Zealand)
- S.4. ‘No Act of Parliament… shall extend… to a Dominions… unless… that Dominions has requested, and consented to, the enactment thereof’
- Lord Denning: “Freedom once given cannot be taken away. Legal theory must give way to practical politics”
Self-imposed Limits on Sovereignty Today
2. Parliament Acts
R (Jackson) v Attorney-General [2005] UKHL 56
PA procedure could not be used to effect ‘fundamental constitutional changes
Self-imposed Limits on Sovereignty Today
3. Northern Ireland
Northern Ireland Act 1998, s.1(1):
From a modern position of English constitutional law, and accordance with Hale and Steyn’s obiter dicta this is now a manner and form restriction which limits the legal competence of the Westminster parliament to achieve that objection without holding a referendum.
Looking at Hale and Steyn’s obiter dicta we can assume that a modern judiciary would view this move as a redefinition of what is viewed as an Act of Parliament and Parliament are legally bound by this Act.
Self-imposed Limits on Sovereignty Today
4. Scotland
Scotland Act 2016, s1:
“The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements.”
“The Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.”
- Due to the current trajectory of legal development, one could assume that the courts would hold that the Westminster Parliament no longer has the power to unilaterally change Scottish devolution
Self-imposed Limits on Sovereignty Today
5. Human Rights Act 1998
Broad power of interpretation in s.3 to interpret legislation to render it ‘so far as possible’ compatible with Convention rights
Assuming that the Conservative government repeals the HRA, the judiciary has 20 years of experience in interpretation legislation.
Thus, the legal culture has changed, and it is unlikely that the judiciary would quickly change in nature.
Judges on Jackson
Lord Steyn:
“the supremacy of Parliament is still the general principle of our constitution. The judges created this principle.”
- If judges created this principle, it is in their power to modify it. They may want to modify it if Parliament’s sovereignty threatens ideas of constitutionalism
Lord Hope:
“the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based”
What is Entrenchment?
- Entrenchment can be understood as altering the composition or the procedures of a future parliament for this purpose, rather than limiting parliamentary authority
- Entrenchment might be though to be desirable to prevent fundamental constitutional characteristics and rights being repealed or amended at a later date
