PUBLIC LAW L4 - Parliamentary Sovereignty 1 - CHARACTER OF CONSTITUTION AND COMMON LAW Flashcards
What can the diceyan conception of parliamentary sovereignty be seen as? (1)
A primary element in forging the traditional character of the UK constitution.
What means that the UK has a potentially highly flexible constitution? (2)
The supreme authority of statute law and the apparent impossibility of entrenchment in constitutional basics.
What does parliamentary sovereignty enhance? (1)
The broadly political character of the UK constitution in which political ‘drivers’ of change tend to be more significant than fundamental legal constitutional rules.
What is the essence of Dicey’s theory on Westminster parliament? 91)
That is has unlimited legal powers.
What is entrenchment by ‘manner and form’? (2)
Parliament introducing procedural requirements to make it harder for subsequent parliaments to change the law. For instance, by requiring prior approval for repeal in a referendum or an enhanced ‘super-majority’ in parliament.
What is the orthodox diceyan view of sovereignty? (1)
While parliament could pass a statute that required a special procedure for its amendment or repeal, this amendment would not be binding on a successor of Parliament.
What has there be ongoing and unconcluded debate about? 91)
Whether ‘manner and form’ entrenchment of legislations is possible in UK constitution, based on comparison with commonwealth cases.
Describe the case of Trethowan. (5)
It is a commonwealth case that has led some academics to debate whether parliament can in fact bind itself. This case concerned the legislature of New South Wales Australia which has originally been created by UK parliament in 1923. In 1929. legislation was passed in NSW, which prohibited the abolition of the upper chamber without the required referendum. The privy council granted injunctions preventing royal assents because the bills had not been passed in the correct manner and the privy council held that the requirement to have a referendum was binding.
What did critics argue in regard to the case of Trethowan? (3)
Critics of ‘manner and form’ argued NSW was a creation of UK parliament and subordinate to it, it was not a sovereign legislature and its legal position was different to UK parliament. The possibility of ‘manner and form’ only therefore seems to apply to subordinate legislature, such as the devolved assemblies in the UK. This issue came into force in the European Union Act 2011, which introduced a referendum lock.
What was the referendum lock? (3)
A statutory framework requiring a referendum to be held before further amendments could be made to the founding treaties of the EU, this seemed to extend the pledge beyond the life of that parliament by creating a ‘manner and form’ requirement.
How has the traditional diceyan theory come under pressure? (3)
As a result of several significant legal and political developments. These have been brought about by parliament itself, through the passing of reforming constitutional legislation. parliament has imposed limitations upon itself as an institution which are binding but only for as long as subsequent parliaments wish them to be so.
Describe the case of Jackson V attorney general 2005.
It is one of the most significant cases which has highlighted and explored the potential friction between the principles of parliamentary sovereignty and the rules of law. It went all the way to HOL and was determined by a full judicial panel. Jackson’s argument essentially was that an act of parliament was wrong, relating to the hunting act 2004 banning hunting dogs, he argued that it was legally invalid because it had been made under the authority of the parliament act 1949, which he also contended was invalid. The law lords found that the 1949 act was a valid form of legislation and so the hunting act was valid and they did not accept Jackson’s argument.
What did Lord Hope address in Jackson obiter? (4)
Our constitution is dominated by the sovereignty of parliament. But parliamentary sovereignty is no longer, if it ever was absolute…it is no longer right to say thats its freedom to legislate admits of no qualification whatever. Step-by-step, gradually but surely, the english principle of the absolute legislative sovereignty of parliament which Dicey derived from Coke and Blackstone is being qualified.
What did Lord Steyn state in Jackson obiter? (4)
He expressed the view that parliamentary sovereignty was not uncontrolled in a more radical way. he suggested that, though parliamentary supremacy is still the ‘general principle’ of our constitution, Dicey’s ‘classic amount’ of parliamentary supremacy can now be seen as ‘put out of place in modern UK’. he mooted that the possibility of the passing of ‘oppressive and wholly undemocratic legislation’ and warned that the courts may have to consider whether to recognise such legislation, based on an alternative reading of the constitutional balance.
What is a notable area of tension between the courts and the executive that has occurred? (1)
When attempts have been made to ‘oust’ the courts rights to scrutinise governmental actions and decisions through judicial review.
