parliamentarysovreigntynotes
Topic 1
Parliamentary sovereignty revision notes
1) Express and Implied repeal/Entrenchment
Dicey’s orthodox theory:
a) Positive aspect – Parliament can legislate on any subject matter whatsoever as its sees fit, can make or unmake any laws and it is not bound by its predecessors nor binds its successors; parliamentary enactment must be obeyed by the courts; there is no law which Parl. cannot change
b) Negative aspect – there is no body which can override an Act of Parliament and declare it invalid
Confirmed by Lord Reid in **Madzimbamuto -> it is often said that it would be unconstitutional, for moral or political reasons, for Parliament to do certain things...However, that does not mean that Parliament does not have the right (or power) to do such things....If Parliament chooses to do so, the courts cannot hold its Acts invalid.
Dicey argued Parliament’s authority to be not only unlimited, but also illimitable, for attempts to bind future Parliament would be unsuccessful.
Parliamentary sovereignty – a merely legal conception/not a political one
It is the dominant characteristic of political institutions from a legal point of view
It should be distinguished from political considerations, as it is not concerned with the politics of the making of legislation, or with political dominance in the state.
Legal authority and political realities should not be confused – Dicey recognised this. Parliamentary sovereignty denotes only the absence of legal limitations, not the absence of all limitations
Is there a limitation on the laws that Parliament may pass?
Dicey noted there was one -> that ‘Parliament cannot bind its successors or be bound by its predecessor; i.e. ‘it cannot detract from its own continuing sovereignty’
The judiciary also have suggested there are limits on Parliamentary legislative power. Lord Steyn in Jackson v A- G (2005) obiter noted that, owing to the fact that parliamentary sovereignty was a common law construct, ‘it is
Parliamentary sovereignty revision notes
1) Express and Implied repeal/Entrenchment
Dicey’s orthodox theory:
a) Positive aspect – Parliament can legislate on any subject matter whatsoever as its sees fit, can make or unmake any laws and it is not bound by its predecessors nor binds its successors; parliamentary enactment must be obeyed by the courts; there is no law which Parl. cannot change
b) Negative aspect – there is no body which can override an Act of Parliament and declare it invalid
Confirmed by Lord Reid in **Madzimbamuto -> it is often said that it would be unconstitutional, for moral or political reasons, for Parliament to do certain things...However, that does not mean that Parliament does not have the right (or power) to do such things....If Parliament chooses to do so, the courts cannot hold its Acts invalid.
Dicey argued Parliament’s authority to be not only unlimited, but also illimitable, for attempts to bind future Parliament would be unsuccessful.
Parliamentary sovereignty – a merely legal conception/not a political one
It is the dominant characteristic of political institutions from a legal point of view
It should be distinguished from political considerations, as it is not concerned with the politics of the making of legislation, or with political dominance in the state.
Legal authority and political realities should not be confused – Dicey recognised this. Parliamentary sovereignty denotes only the absence of legal limitations, not the absence of all limitations
Is there a limitation on the laws that Parliament may pass?
Dicey noted there was one -> that ‘Parliament cannot bind its successors or be bound by its predecessor; i.e. ‘it cannot detract from its own continuing sovereignty’
The judiciary also have suggested there are limits on Parliamentary legislative power. Lord Steyn in Jackson v A- G (2005) obiter noted that, owing to the fact that parliamentary sovereignty was a common law construct, ‘it is