The sovereignty of Parliament

  • Created by: phoebs.b
  • Created on: 10-04-18 16:51

AV Dicey, Introduction to the Study of the Law of the Constitution (1885) - parliamentary sovereignty means that Parliament has 'the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament'.

R (on the application of Miller) v Secretary of State for Exiting the European Union (2017) - affirmed Dicey's definition of parliamentary sovereignty. The Supreme Court also observed that the development of parliamentary sovereignty went hand in hand with the development of an independent judiciary, the role of which is to uphold and further the rule of law. Judges impartially identify and apply the law in every case brought before the courts. It is not open to judges to apply or develop the common law in a way which is inconsistent with the law as laid down by Acts of Parliament. Furthermore, the Supreme Court also recognised a close relationship between the development of Parliamentary sovereignty and the separation of powers. The Supreme Court observed that by the end of the twentieth century, the great majority of what had previously been prerogative powers, at least in relation to domestic matters, had become vested in the three principal organs of the state, the legislature (the two Houses of Parliament), the executive (ministers and the government more generally), and the judiciary (the judges). 

Jackson v Attorney General (2006) - the House of Lords had to decide whether the Parliament Act 1949, which amended the Parliament Act 1911, was invalid because it was passed without the consent of the House of Lords in accordance with the procedure contained in section 2 of the Parliament Act 1911. If the 1949 Act were invalid the Hunting Act 2004 would also be invalid. The House of Lords held that there is no constitutional principle, or principle of statutory interpretation, which prevents a legislature from altering its constitution in accordance with the provisions of a statute which empowers it to do so, for the purpose of altering the empowering statute. The speeches of Lord Steyn and Baroness Hale suggest that there may be some judicial support in this country for entrenchment clauses. Laws LJ found that Community rights prevail over the express terms of any domestic law, including primary legislation, made or passed after the coming into force of the 1972 Act, even in the face of plain inconsistency between the two. The purpose of the Parliament Act 1911 was to limit the power of the House of Lords to block the bill which had been approved by the House of Commons. The 1911 Act applies to any public bill subject only to the exceptions contained in the 1911 Act. 

Dr Bonham's Case (1610) - there were suggestions that the courts could question the validity of an Act of Parliament if it was against common right or reason, repugnant, or impossible to perform. 

Day v Savage (1615) - there were suggestions that the courts could…


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