- Created by: Calgary
- Created on: 11-05-12 23:29
Summary of traditional doctrine:
- Dicey: 'The sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions.'
- Parliament has right to make and unmake law. (positive aspect)
- No person/body outside parl is recognised as having right to override or set aside any leg of Parl. (negative aspect)
Limits of Doctrine:
- Although its often said that it would be unconstitutional for Parl to do certain things, it is not beyond its power to do so. Can't be held invalid by courts.
- Dicey recognised political limitations to Parl sov though.
How courts accept parl sov in practice: express and implied repeal:
- Express Repeal: where Parl explicitly states that an earlier law is to be invalidated.
- Implied Repeal: where 2 statutory provs are inconsistent with each other, the later provision prevails.
Traditional doctrine scrutinised:
- 3 meanings of positive aspect: 1) No law that Parl cant change, 2) No distinction between 'constitutional' and other laws and 3) Enactment of Parl cant be pronounced void on grounds that it conflicts with any principles of constitution.
- Negative aspect: Courts have no general power to challenge validity of Act of Parl.
Evidence for Sovereignty:
- Positive aspect evidence in what Parl has done historically.
- But this is not conclusive 'The supremacy of Parliament is a legal fiction, and legal fiction can assume anything.' Jennings.
- Negative evidence: 'it is not for the court to say that a parliamentary enactment, the highest law in the country, is illegal.'
Possible limitations on Sovereignty:
- Limitations based on substance of content of act
- Limitations as to form of measure passed by Parl or procedure used.
- Limitations imposed by Parl itself.
Possible limitations on content of legislation:
- 2 possible Lims: 1)statute conflicted with laws derived from other legal systems and 2) it contravened fundamental liberties or other constitutional principles.
Conflict with other legal systems:
- Uk has a dualist system of law - treaties entered into by UK do not form part of domestic leg
- Courts apply same principle even if treaty obligations at stake: Cheney v Conn 'What the statute itself enacts cannot be unlawful, because what the statute says and provides itself is the law, and the highest form of law that is known to this country.'
- Rule of interpretation that statutes not given extra-territorial effect, unless expressly provided or necessarily implied (Manuel v AG - act purporting to apply outside UK will be law within but probably ignored outside UK.)
Limitations based on constitutional principles:
- Pre-civil war authority that common law may held act of parl unlawful.
- In modern times courts have never refused to obey statute on such grounds (R v Jordan on act curtailing free speech, unsuccesful.)
- BUT courts impose strong presumption on Parl that it wont intend to violate certain principles. E.g non-retroactivity, depriving courts of jurisdiction (Antisiminc Ltd), protecting rights recognised as fundamental in comm law ('In the absense of express language or necessary implication to the contrary, the courts presume that even the most general words…