Parliamentary Sovereignty pt 1 Flashcards
(34 cards)
what specific part of Parliament does PS concern
-legislative / law making power
who has a famous/ influential two part definition of PS
Dicey
what is Dicey’s famous and influential 2 part definition of PS
PS= parl has
(i) the right to make or unmake any law whatever; and,
(ii) no person/body has the right to override or set aside the legislation of Parliament.
what are the 2 parts of Dicey’s definition
-PS means P has, under the English constitution:
(i) the right to make or unmake any law whatever; and, further, that
(ii) no person or body is recognised by the law of England as having a right
to override or set aside the legislation of Parliament.
explain the first part of Dicey’s 2 part definition of PS
-P has legal authority to make any law whatsoever, including:
-making far-reaching constitutional changes (lec7+8)
give 3 theorist examples of how far reaching the scope of Parliaments legal authority to make any law whatsoever
-L.Stephen 1882 states an Act of Parliament requiring all blue eyed babies be put to death would be allowed
-W.I Jennings 1959 says they could make smoking on the streets of Paris a criminal offence
-could prohibit Everton FC from being relegated in Premier League
explain the second part of Dicey’s 2 part definition
-UK courts cannot invalidate or strike down an Act of Parliament or declare it unconstitutional or unlawful
-courts reject this possibility throughout case law since 1842 eg Wauchope 1842
-even international law is subject to an Act of Parliament eg Mortensen v Peters (1906)
what is a case example for the courts rejecting the possibility of striking down an Act of Parliament/ declare it unconstitutional or unlawul
Wauchope (1842)
what is a case example for international law being subject to Acts of Parliament
Mortensen v Peters (1906)
Cheney v Conn (1968)
what is the start of historical development of PS
-build up tp English Civil War (1642-46)
-can royal power override Parliament’s legislation
what are the conflicting views in the build up to the English Civil War (1642-46)
-Coke CJ, The Case of Proclamations (1611) “ the King hath no prerogative, but that which the law and land allows him”
-(The Case of Ship Money (1637) it is said ‘the King may give laws to his subjects, and this does not detract from him, when he does it in Parliament’
how does the English Civil War 1642-46 end
-Parliament wins against the Crown and Charles I executed Jan 1649 after trial in Parliament
what is the timeline from 1649-1701 on how PS developed
-1649-1660 England as a (Republican) Commonwealth
- 1653-1660 Instrument of Government – a sort of ‘written constitution’
-1660 Restoration of Monarchy
- 1688 ‘Glorious’ Revolution – changing monarch to William & Mary
- Parliamentary Limitation of Crown (Bill of Rights 1689) and Control Over Line of Succession Act 1701
summarise the English Civl War 1642-1646
-in war between Parliament and the Monarchy, Parliament wins which sets precedent with courts that parliament is sovereign
give 3 main points on the traditional understanding of PS
(i) The legally unlimited legislative power of the UK Parliament
(ii) Based on history of Parliament taking power over the Crown
(iii) Not a rule created by judicial decisions, but a legal and political reality recognised in case law
what is the first key case law on PS
British Railways Board v Pickin [1974] A.C.
765
what are the facts of British Railways Board v Pickin [1974] A.C.
765
Pickin owned land next to railway and would obtain the adjacent land if abandoned
- British Railways Act 1968 passed that right to the BRB
- Pickin argued Parliament had been fraudulently misled into passing Act, and that he had not been notified of his loss of rights
what did Lord Reid argue in Pickins case
-‘The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution,
-but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.’
-basically idea of overruling Act of Parliament is strange and obsolete idea, not happening
what does Lord morris say in Pickins case
- courts hearing arguments challenging validity of AoP ‘would be dangerous and impermissible.
-function of the courts to administer the laws which P has enacted - When an enactment is passed there is finality unless it is amended or repealed by P
-courts can debate the correct interpretation of the enactment: there must be none as to whether it should be on the Statute Book at all
what is the second key case for PS
R. (Jackson) v Attorney General [2005]
what are the facts of R. (Jackson) v Attorney General [2005]
-Hunting Act 2004 passed banning hunting with dogs
- 2004 Act passed using the Parliament Act 1949 process without approval of HoL
- Jackson challenged validity of the 1949 Act process, because that was not approved by HoL
- if 1949 Act process was invalid, so was Hunting Act 2004
what does Lord Bingham say in Jackson (2005)
-The 1949 Act and the 2004 Act are Acts of Parliament of full legal effect
what is the outcome of Pickins (1974) and Jackson (2005)
-both failed to overrule an Act of Parliament
what does Lord Steyn say in Jackson (2005)
-argues Dicey’s view of PS as absolute may be out of place in the modern constitution
-PS is still the general principle of constitution as a construct of common law/ principle created by judges
-since judges made that principle they may have to qualify a differing principle
-“a new SC may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complainant House of Commons cannot abolish.’
