- Created by: Francesca Marks
- Created on: 30-03-15 12:50
Dicey's doctrine- 'the right to make or unmake any law whatsoever, and futher, that no person or body is recognised by the law of England as having a right to set aside the legislation of Parliament.'
Three limbs- 1) 'positive' limb- Parliament can make and unmake any law 2) 'negative' limb- no body can question an Act of Parliament 3) Theory of continuing sovereignty- no parlimanet can bind or be bound by another parliament.- but all can change laws and tradition.
Positive limb- Parliament changing the constitution- Declaration of Abdication Act 1936. Parliament changing its own composition or powers- Parliament Act 1911, Parliament Act 1949 and House of Lords Act 1999 (stopped the practise of hereditary peers).
Legislating contrary to International Law- Mortensen v Peters 1906 case where UK law conflicted with international law. 'For us, an Act of Parliament duly passed by the Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms.'- High Court of Justiciary.
Cheney v Conn- 1968- 'what the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known in this country. It is the law that prevails over every other form of law.'- Ungoed Thomas
Diceys negative limb
Dicey's negative limb- R v Jordan 1967. Race Relations Act 1965. Courts cannot question primary legislation. Parliament is supreme.
Enrolled bill rule- Edinburgh Dalkeith Railway Co v Wauchope 1842- 'all that a court of justice can do is to look at the Parliamentary roll: if from that it should appear that a bill has passed both Houses and recieved Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both houses.' You cant challenge on grounds of substance and procedural challenges arent allowed either.
British Railway Board v Pickin 1974- 'When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the statute book at all.' Lord Morris.
Diceys third limb
Dicey's Third Limb- The theory of continuing sovereignty 1) Parliament is created anew every time it meets. 2) each parliament enjoys the same legislative powers 3) no parliament can bind future parliament.
Doctrine of implied repeal- statutes at odds with each other- what should the court do? If statute is inconsistent with new one then it is implied repealed. This is different to express repeal. Express repeal means that something shall cease to have effect.
Vauxhall Estates v Liverpool Corporation 1932- Land purchased by Liverpool Council, amount of compensation available came under Act but not sure which one. Acquisition of Land Act 1919 or Housing Act 1925. 'The provisions of the Act or order by which the land is authorised to be acquired...shall... have effect subject to this Act and so far as inconsistent with this act those provisions shall cease to have or shall not have effect.'- S7 of Acquisition of Land Act 1919. This act had tried to bind future parliament and as no act can do this so 1925 Housing Act applied.
Ellen Street Estates v Minister of Health 1934- 'The legislature cannot, according to our constitution bind itself as to the form of subsequent legislation, and it is impossible for parliament to enact that in a subsequent statute dealing the with same subject matter there can be no implied repeal. If in a subsequent act parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.- Maugham
Origins of PS
Revolution of 1688 and the origins of Parliamentary sovereignty- Parliament has final say over content of law. Give final say to principle democratic institutions. If judges had it- as unelected- it would not be fair. Self correcting democracy.
Possible sources of PS? Statute or Common Law?
Statute? No- 'no statute can confer this power upon Parliament, for this would be to assume and act on the very power that is to be conferred.' Salmond. Legislates assuming this but has not brought it upon itself. 'There is no statute which says that the Courts must enforce without question Acts of Parliament'- William Wade.
Common law?- 'Parliamentary sovereignty is a construct of the common law. The judges created this principle'- Lord Steyn in Jackson v Attorney General. PS is a rule of judicial obedience. Have to obey no matter what the content.
Why did judges create a rule of judicial obedience? i) Pre 1688- before revolution ii) 1688 revolution.
Pre 1688- Charles I 1625- 1649, Civil War 1641-1651, Commonwealth, Protectorate, Restoration Charles II 1660-1685 and James II 1685-1688. It was monarchy v Parliament for powers. Still belief in divine rights of kings. Parliament were starting to claim more power. At this time Parliament wasnt supreme. James II wanted to bypass Parliament.
1688 Glourious Revolution and Bill of Rights- New relationship between Parliament and Monarchy. Monarchy became subordinate to Parliament. Courts adhered to acts of Parliament. Can only change Parliamentary sovereignty by constitutional revolution.
Rule of recognition- 'the rule of judicial obedience is in one sense a rule of common law, but in another sense, which applies to no other rule of common law, it is the ultimate political fact upon which the whole system of legislation hangs.' William Wade. It is a common law rule but not one which can be changed easily as it is the foundation of the system.
Challenges to dicey
Challenges to Dicey's doctrine- 1) historical challenges 2)theoretical challenges 3) european legal supremacy.
Challenge 1- the acts of union- Act of Union with England Act 1707 and Act of Union with Scotland 1706. These acts have special legal status and are a little bit like fundamental law. Parliaments law making abilities are prevented by Acts of Union. Could say that later parliaments were born unfree and never enjoyed legislative supremacy.
MacCormick v Lord Advocate 1953- designation of new queen Elizabeth 2. Some scots raised an issue with her being 2 as she was not the second Elizabeth in Scotland. Royal titles act was not applicable with Acts of Union so their argument was rejected. Sympathetic to the Scottish argument 'considering that the acts of union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of GB must inherit all the peculiar characteristics of the English parliament, as if all that happened in 1707 was that the Scottish representatives were admitted to the Parliament of England. That is not what was done.'
Manner and form argument, constitutional sovereignty and parliament acts 1911 and 1949-
Before 1911- HoL had the right to reject Bills like the commons.
After 1911 Parliament Act- 1) abolished lords rights to reject money bills (Lloyd George had his taxes budget blocked and so wanted this to happen) 2) replaced power of rejection with power to delay for 2 years.
Constitutional crisis. Lords used to have veto but got rid of it. And they used to have equal power but no longer do.
Parliament Act 1949- Reduced power of delay from two years to one year. This was passed under the 'bypass' procedure in the Parliament Act 1911.S2ss1 This procedure means that a bill can bypass opposition in the HoL (cant be used for bills to extend life of parliament) It was feared HoL would block bills to nationalise iron and stell and so commons passed this under the bypass proceudre.
Legislation passed under bypass procedure- Government of Ireland Act 1914, Welsh Church Act 1914, Parliament Act 1949, War Crimes Act 1991, Sexual Offences Amendment 2000, Hunting Act 2004
Jackson v Attorney General 2005- claimants challenged the validity of the Parliament Act 1949, which if invalid, woudl have in turn invalidated the Hunting Act 2004. Indirectly deals with Parliamentary sovereignty. Ruled the Hunting Act was lawful.
1) the delegation argument- a body that has been delegated power cannot without express permission enlarge its own powers.
2) the 'two step' argument- special exceptions in s2(1) where bypass procedure cannot be used. If it is possible to amend s2(1) then you can use 2 steps to do what is explicitly forbidden under S2(1). Step 1- legislate to remove the restriction in s2(1) and Step 2- enact the bill you want. Still cant extend parliamentary terms this way. Parliament Act 1949 couldnt use bypass act as only made by commons. Couldnt use bypass procedure to change bypass procedure.
3) the 'modest changes' argument - Does s2(1) Parliament Act 1911 contain an implied limit that (HC and Monarch) can only make modest and not constitutionally significant modification using the bypass procedure (without the consent of HoL)?
Significance of Jackson? 1) supporting evidence for 'manner and form' argument? 2) obiter supporting idea of constitutional sovereignty rather than parliamentary sovereingty?
Manner and form argument- Parliamentary sovereignty includes the power of Parliament to bind itself as to the manner and form in which legislation is passed (procedural entrenchment). Changes from continuing parliamentary sovereignty to self embracing. Can bind itself through legislative enactments. 1)Parliamentary sovereignty is a common law rule 2) because statute is legally superior to common law Parliament can redefine PS by enacting legislation that provides for procedural entrenchment. 3) courts are bound to apply this new rule. (Jackson).
Diceys Continuing sovereignty- no parliament can be bound by any other parliament- see doctrine of implied repeal, Vauxhall Estates and Ellen Street Estates.
Jennings self embracing sovereignty- Parliament can bind itself as to the manner and form in which legislation is enacted (dicta in Jackson?)
Constitutional sovereingty not parliamentary sovereignty? There are legal limits on Parliament that can be derived from the rule of law, and in exceptional circumstances the courts might be able to strike down an act of parliament. Constitution is fundamental laws but arent written. Rule of law is most important rule of constitution, not PS. Enforceable limits in court on parliament.
Parliamentary sovereignty- Parliament is sovereign, can make or unmake any law and no body can strike down parliament acts. (PS is the most important constititonal principle).
Constitutional sovereignty- constitution is sovereign, parliament is subordinate to the constitution, Courts, in exceptional circumstances, can strike down acts of P. (Rule of law is most important constitutional principle. 'The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.'- Lord Hope in Jackson. ' The classic account given by Dicey of the supremacy of parliament, pure and absolute as it was, can now be seen to be out of place in the modern UK' - Lord Steyn in Jackson.
1) can make or unmake any law? - was Parliament born unfree? MacCormick. 2) no body can question an act of parliament- what about ideas of constitutional sovereignty? (Jackson) 3) no parliament can bind itself- Manner and form arguement (Jackson)
European legal supremacy-
Primacy of european law, s2(1) and 2(4) of European Communities Act 1972, Factortame litigation, 'Constitutional Statutes- Thoburn v Sunderland CC and Supreme Court in HSN2.
'The community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights.' -Van Gend en Loos.
'The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the treaty carries with it permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the community cannot prevail.' - Costa v ENEL.
1973- UK joined the European Union. Dualist legal system, domestic and international law are separate. Have to bring international law into domestic law by Parliament Act. S2(1) European Communities Act 1972- 'all such rights power, liabilites, obligations and restrictions from time to time, arising by or under the treaties, are without further enactment to be given legal effect in the UK' bringing directly enforceable EU law into domestic effect.
S2(4) European Communities Act 1972- 'passed or to be passed, other than one contained in this part of this act, shall be construed and have effect subject to the foregoing provisions of this section 2(1) and 2(2).' has to have effect whenever passed which brings EU community law into direct effect. Binding sucessors. Lister v Forth Dry Dock, Pickstone v Freemans, and Garland v British Rail Engineering.
Factortame 2- case concerning conflicting english law with EU law. Substantive question- were relevant provisions of the MSA 1988 contrary to European Law? Procedural question- do courts have the power to grant interim releif the effect of which would be to suspend operation of Act of Parliament?' 'whatever limitation of its soveriegnty Parliament accepted when it enacted the EC act of 1972 was entirely voluntary.'Duty of courts to 'override any lrule of national law found to be in conflict with any directly enforceable rule of Community law.' Lord Bridge.
Construction- Parliament is presumed not to intend statutes to override European Law. Inconsistencies between UK law and European Law are to be resolved in favour of the latter unless Parliament has expressly indicated to the contrary.
Revolution- Factortame is a judicial revolution. Parliament has sucessfully bound itself. PS sovereignty is the ultimate political fact and this has now been changed.
Thoburn v Sunderland CC- ordinary statutes v constitutional statutes eg acts that are fundamental importance in shaping the consitution and or governing relations between the state and its citiziens. Dicey said all acts have same status. Said no inconsistency in this case. Implied repeal may be no more than a general rule subject to exceptions. May not apply latest statutes. Hierarchy of statutes.
R(HSN2 Action Alliance) 2014.
Constitutional significance- Magna Carta 1297, Bill of Rights 1689, Union with Scotland Act 1707, HRA 1998, Scotland Act 1998 and European Communities Act 1972.
Make or unmake any law- What about acts of union (MacCormick)? What about factortame? What about consitutional sovereignty? (Jackson)
Nobody can question an Act of Parliament- What about factortame? What about constitutional supremacy (Jackson)?
No Parliament can be bound- What about EC act 1972? What about constitutional statutes? What about manner and form argument?