Parliamentary Sovereignty PDF

PUBLIC LAW I – SOURCES OF POWER Parliamentary Sovereignty Dr Tarik Olcay University of Dundee Week 3  LEARNING OBJECTIVES Explain the meaning and implications of the constitutional principle of parliamentary sovereignty Describe the three diff...

PUBLIC LAW I – SOURCES OF POWER Parliamentary Sovereignty Dr Tarik Olcay University of Dundee Week 3  LEARNING OBJECTIVES 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  PARLIAMENTARY SOVEREIGNTY What is it about? Who has the ultimate say as to what the law is in the UK Democracy Political / legal constitutionalism Basic definition: Parliament can make and unmake any law and no other state body (including courts) can set these laws aside.  THE ORTHODOX VIEW AV Dicey Positive limb ‘Parliament has the right to make or unmake any law whatever’ 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’ ‘the very keystone of the law of the constitution’; establishes relationship between the legislature and judiciary  PARLIAMENTARY SOVEREIGNTY AS CONSTITUTIONAL FIXTURE No entrenchment Courts are required to apply the most recent Act of Parliament in any given subject Express & implied repeal – makes entrenchment impossible Self-embracing sovereignty Parliament can enact any legislation, including making laws that would destroy parliamentary sovereignty Continuing sovereignty The only thing Parliament legally cannot do is to entrench legislation Historical basis: political agreement between the monarch, Parliament, and the courts following the Glorious Revolution of 1688; political agreement is ongoing, hence continuing sovereignty  THE MANNER AND FORM THEORY Whilst no limits on subject matter in law-making, Parliament can bind itself as to the manner and form in which it may make laws Special procedures can be created for legislation, such as a Bill on a particular subject requiring a referendum, special majority in both Houses of Parliament Then, if any special procedure is not followed in passing a Bill an injunction could be sought from courts to prevent further passage of the Bill, or the monarch would be justified in refusing Royal Assent, or if the Bill has been passed, courts could declare the enactment void. This view has limited judicial recognition e.g. Jackson – obiter by Baroness Hale and Lord Steyn  UNINTENDED CONSTRAINTS ON PARLIAMENTARY SOVEREIGNTY There are practical constraints – uncontroversial can make smoking on the streets of Paris an offence – but unenforceable Are there also legal constraints on what Parliament can do? Traditional view: no TRS Allan: challenges historical basis for parliamentary sovereignty and argues that it is based on democracy – if Parliament attempts to destroy democracy by legislation, courts will not enforce it. The principle of democracy legally limits Parliament’s power John Laws: basic rights are ‘higher-order’ law. Parliament legally cannot legislate in violation of these. Far from accepted but voiced as likely courses of action by some theorists and judges