WK 3 - Parliamentary sovereignty Flashcards
• Explain the meaning and implications of the constitutional principle of parliamentary sovereignty • Describe the three different views on parliamentary sovereignty • Evaluate parliamentary sovereignty vis-à-vis the other constitutional principles of the separation of powers and the rule of law in UK’s constitutional arrangements
Basic definition of parliamentary sovereignty
Parliament can (un)make any law and no other state body (including courts) can set these laws aside
Orthodox view of parliamentary sovereignty - positive limb
AV Dicey - ‘Parliament has the right to make or unmake any law
Orthodox view of parliamentary sovereignty - negative limb
‘No person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’
How does AV Dicey describe parliamentary sovereignty?
‘The very keystone of the law of the constitution’
Establishes relationship between legislature and judiciary
Explain ‘no entrenchment’ in regards to Parliamentary sovereignty
- Courts are required to apply the most recent Acts of Parliament in any given subject
- Express + implied repeal - makes entrenchment possible
Explain ‘self-embracing’ sovereignty
Parliament can enact ANY legislation, including any laws destroying sovereignty
What is the only thing Parliament legally cannot do?
Entrench legislation
Historical basis of parliamentary sovereignty
Political agreement between the monarch, Parliament, and the courts following the Glorious Revolution of 1688
How does sovereignty continue?
Political agreement is ongoing
In what way can Parliament bind itself?
Parliament can bind itself as to the matter and form in which it makes law
Is there a limit on subject matter in law-making?
No
How can Parliament bind itself as to matter and form of law-making? Give examples.
- Special procedures can be created for legislation, such as a Bill on particular subject requiring a referendum, special majority in both houses
If a Bill is not passed following special procedure…
- An injunction could be sought from courts to prevent further passage, or
- Monarch justified in refusing Royal Assent, or
- If Bill passed, courts could declare enactment void
Is there much judicial recognition of manner and form theory?
Limited judicial recognition
Define the manner and form theory
- Parliament has unlimited legislative authority
- Can pass/change legislation in any way it wishes
Give an example of judicial recognition of manner and form theory
Jackson - obiter by Baroness Hale and Lord Steyn
What kind of restraints are there on parliamentary sovereignty?
Practical constraints & legal constraints
Practical constraints on sovereignty
Practical constraints & legal constraints - uncontroversial
For example, although one could make it illegal to smoke on the streets of Paris, it’s not easily enforceable
Legal constraints on sovereignty
- Traditionally, there were none
- TRS Allan
- John Laws
Legal constraints: Explain TRS Allan
- Challenges historical basis for parliamentary sovereignty
- Argues it’s based on democracy
- If Parliament attempts to destroy democracy by legislation, courts will not enforce it
- Principle of democracy legally limits Parliament’s powers
Legal constraints: Explain John Laws
- Basic rights are ‘higher-order’ law
- Parliament legally cannot legislate in violation of these
