Parliamentary Sovereignty Essay Plan Final PDF

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Critically assess potential limitations on the classic Diceyan concept of parliamentarysovereignty Essay PlanParliamentary sovereignty: Recognised in 19th century, emerged from civil war. A Dicey: Traditional deinition, contains three main principles: 1. Parliament is supreme law-making body, may en...

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Critically assess potential limitations on the classic Diceyan concept of parliamentary sovereignty Essay Plan Parliamentary sovereignty: Recognised in 19th century, emerged from civil war. A.V Dicey: Traditional definition, contains three main principles: 1. Parliament is supreme law-making body, may enact laws on any subject matter. (positive limb) 2. No person or body, including court of law, may question validity of parliamentary enactments. (negative limb) -Edinburgh v Wauchope [1842]: held no court can inquire into manner an act was introduced. 3. No parliament may be bound by a predecessor or bind a successor. Supported by: Pickin v BRB [1974], Cheney v Conn [1968]: not limited by international law. Enactment of European Communities Act 1972 (ECA). -Membership brought requirement domestic courts give EU Law priority over conflicting rules of national law. -S2(4) ECA 1972: statues “have effect subject to.. foregoing provisions of section...” -Limitation on Dicey’s vision that laws enacted by Parliament cannot be overruled. -Parliament avoided legislating in conflict with European Law (Lister v FDD [1990]). -Failed in Factortame [1991]: HOL ruled conflict between statutory provisions, s2(4) not impliedly repealed by later act. Wade: Revolution occurred in Factortame: Judges departed from Parliamentary sovereignty. -Decision allows argument sovereignty in Diceyan sense has been replaced by another: EU law rather than UK parliament is now pragmatically ‘supreme’. Elliot: “Public Law for everyone”: Parliament still sovereign, remains capable of overriding EU law by revoking priority of 1972 Act (Brexit / Referendum 2016). Doctrine of Implied Repeal -Later act takes precedence, conflicting parts are repealed: supports Dicey’s theory no parliament is bound by a predecessor. -Undermined within Thoburn v SCC [2002]: Lord LJ’s Judgements develop idea of a “constitutional statute”: prevails over other legislation, could not be repealed, such as: ECA 1972. -Further challenges Dicey’s concept no parliament can bind its successors. -Also confirmed in HS2 [2014]. Devolution: Asymmetrical -Devolved power to Northern Ireland, Scotland, Wales through devolution acts (Northern Ireland Act 1998, Scotland Act 1998, Government of Wales Act 2006) -Since 1999 Westminster parliament no longer sovereign over domestic affairs. -Sewell Convention – British Parliament cannot discuss without express permission of Scotland. Miller [2017]: Legal enforceability of the Sewell Convention. Undermines Dicey: “may enact... on any subject matter”. -S28(7) Scotland Act 1998: argue continued sovereignty, ability to repeal devolution settlements, theoretically still “supreme law-making body”. -Political reality: Difficult to interfere with devolved matters. Blackburn [1971]: “freedom once given cannot be taken away…”: Limitation upon Parliamentary Sovereignty. Human Rights Act 1998 S3: Powers of interpretation: “which is compatible with Convention rights” Ghaidan v Godin-Mendoza [2002]: “Court departed from intention of Parliament which enacted legislation” -Referred to Parliaments general intention, does not undermine validity of Parliaments enactments. S4: Declaration of incompatibility. (Cannot strike down an Act of Parliament). -Does not affect validity of the incompatible legislation: Parliament may refuse to act upon S4. -Therefore, does not present a challenge to Dicey’s definition that “Parliament is supreme lawmaking body’. Rule of Law AG v Jackson [2005] Lord Steyn and Hope. ““The rule of law is the ul mate controlling factor on which our cons tu on is based”

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Critically assess potential limitations on the classic Diceyan concept of parliamentary sovereignty Essay Plan “Rule of Law ultimately controlling factor” -Ultimately Rule of Law can take precedent over Parliamentary sovereignty: more important. Conclusion. Dicey’s definition affected by Parliament itself through legislation (membership of EU, Devolution). Legal theory: has remained intact- Right to withdraw from ECA 1972. Political reality- Controversial, Parliament is continuously developing- Dicey’s definition arguably outdated.

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