Parliamentary Sovereignty Flashcards
(15 cards)
What is constitutional law?
Stranded desert island theory, establishes the political system of society. A set of rules and processes concerning public power and accountability – the laws and rules that create power.
The Miller case
About the powers the PM has, the powers the monarch has in suspending Parliament. Also the role of courts in hearing legal challenges.
Dissolution and Calling of Parliaments Act 2022
Changes the rules relating to timing and process of calling a national general election, re-empowering PM and monarch, excludes courts and HoC.
What is PS?
About the nature and scope of its legislative or law-making power
Traditional understanding
Dicey’s two part definition – the right to make or unmake any law whatever, and no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
Part 1 – Parliament has the legal authority to make any law whatsoever;
includes far-reaching const. changes like an Act of Parliament requiring all blue eyed babies to be put to death
Part 2: UK courts cannot strike down or invalidate an Act of Parliament, or declare it unconst. or unlawful
clear and consistent line of case law from 1842 where courts reject this
PS is a legal rule, but authority is rooted in English history…
Build up to English Civil War
British Railways Board v Pickin (1974)
Abandoned railway land, courts rejected any challenge to an Act of Parliament in very strong terms
R (Jackson) v Attorney General (2005)
In this case, they hear the full argument and decide the case on its own merits, and three judges question the existence of PS
Why do we still have PS?
Legally unlimited law-making power….but power still constrained by politics, democracy, morality… etc
Virtue of PS
Ensures constitutional primacy of democratic decision-making
HoC within Parliament is now only directly elected part of UK central government
Functions of PS
A central, organising principle…structure/hierachy of sources organised by ref to PS….
A const. focal point…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….
One final uncertainty
Can Parliament use its limited power to limit future Parliaments? Or can PS be used to limit future PS? Dicey says no, others say maybe.
Conclusions
PS is a legal doctrine at the core of the constitution, it has a democratic justification, there are signs that the traditional approach (Pickin) may be changing (Jackson)
