lOMoARcPSD|11697329
Parliamentary Sovereignty
1) Express and Implied repeal/Entrenchment
• Dicey’s orthodox theory:
a) Positive aspect – Parliament can legislate on any subject matter
whatsoever as it 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 nobody who can override an Act of Parliament
and declare it invalid.
- As 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 House of Lords 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 continuing
sovereignty’.
- The judiciary also has suggested there are limits on Parliamentary
legislative power. Lord Steyn in Jackson v A- G (2005) obiter noted that,
because parliamentary sovereignty was a common law construct, ‘it is not
unthinkable that circumstances could arise where the courts may have to
qualify a principle established on a different hypothesis of
constitutionalism. In exceptional circumstances involving an attempt to
abolish judicial review or the ordinary role of the courts, the Appellate
Committee of the HL or the new Supreme Court may have to consider
whether this is a constitutional fundamental which even a sovereign
Parliament acting at the behest of a complaisant House of Commons
, lOMoARcPSD|11697329
cannot abolish’ – so courts have the right to assume that Parliament did
not intend to act unconstitutionally?
• Enrolled bill rule – Pickin
- As long as the Act, whether private or public, has been passed through
the proper procedure (both Houses + the Royal Assent), the courts will
not have the power to disregard it or to question and inquire into how it
was introduced into Parliament. They stick to their role of interpreting
legislation.
- Also, Jackson – confirms that the courts may define what is a valid Act
of Parliament and that the definition may encompass Acts passed by
consent of the Lords and Commons, or the Commons alone. There
was ‘no constitutional principle of statutory construction which might
prevent a legislative altering its constitution by enacting alterations’.
• Express and Implied Repeal
- Dicey: On occasions where language has been embodied in a statute
that purported that a particular statute could not repealed or altered by
the future Parliament, the endeavour is bound to fail. Each Parliament
retains full sovereign power to pass legislation as it sees fit; doctrines of
express and implied repeal ensure that it is possible.
- Express repeal – a later Act expressly states that it repeals the
provisions of the earlier Act.
- Implied repeal – a later Act does not state that it expressly repeals the
earlier
Act, however, its provisions clash on the same subject matter with an
earlier Act – the courts will always give primacy to the later intention of
Parliament and the provisions of the later Act will prevail, in so far as
they are inconsistent with the earlier Act.
- **Vauxhall Estates confirmed by Ellen Estates -> In the latter case
Maugham LJ confirmed that the legislature cannot bind itself as to
the form of subsequent legislation – Parliament cannot enact that in
a subsequent legislation dealing with the same subject matter there
can be no implied repeal. The effect must always be given to the latest
intentions of Parliament.
• Entrenchment as to the subject matter
- Could be problematic; consider something like a Bill of Rights which
encompasses constitutional rights of persons – Parliament could repeal
that expressly or impliedly at a later stage; with no entrenchment in
theory. Consider HRA 1998 – it has fundamental rights encompassed,
but it is not entrenched, at least not legally. Even not politically, since
conservatives and labour have both proposed its repeal.
- It’s often argued that, owing to their content and fundamental
importance, Acts of Union of 1706 and 1800 cannot be repealed and
have special status, i.e., are legally entrenched against repeal –
Parliamentary Sovereignty
1) Express and Implied repeal/Entrenchment
• Dicey’s orthodox theory:
a) Positive aspect – Parliament can legislate on any subject matter
whatsoever as it 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 nobody who can override an Act of Parliament
and declare it invalid.
- As 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 House of Lords 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 continuing
sovereignty’.
- The judiciary also has suggested there are limits on Parliamentary
legislative power. Lord Steyn in Jackson v A- G (2005) obiter noted that,
because parliamentary sovereignty was a common law construct, ‘it is not
unthinkable that circumstances could arise where the courts may have to
qualify a principle established on a different hypothesis of
constitutionalism. In exceptional circumstances involving an attempt to
abolish judicial review or the ordinary role of the courts, the Appellate
Committee of the HL or the new Supreme Court may have to consider
whether this is a constitutional fundamental which even a sovereign
Parliament acting at the behest of a complaisant House of Commons
, lOMoARcPSD|11697329
cannot abolish’ – so courts have the right to assume that Parliament did
not intend to act unconstitutionally?
• Enrolled bill rule – Pickin
- As long as the Act, whether private or public, has been passed through
the proper procedure (both Houses + the Royal Assent), the courts will
not have the power to disregard it or to question and inquire into how it
was introduced into Parliament. They stick to their role of interpreting
legislation.
- Also, Jackson – confirms that the courts may define what is a valid Act
of Parliament and that the definition may encompass Acts passed by
consent of the Lords and Commons, or the Commons alone. There
was ‘no constitutional principle of statutory construction which might
prevent a legislative altering its constitution by enacting alterations’.
• Express and Implied Repeal
- Dicey: On occasions where language has been embodied in a statute
that purported that a particular statute could not repealed or altered by
the future Parliament, the endeavour is bound to fail. Each Parliament
retains full sovereign power to pass legislation as it sees fit; doctrines of
express and implied repeal ensure that it is possible.
- Express repeal – a later Act expressly states that it repeals the
provisions of the earlier Act.
- Implied repeal – a later Act does not state that it expressly repeals the
earlier
Act, however, its provisions clash on the same subject matter with an
earlier Act – the courts will always give primacy to the later intention of
Parliament and the provisions of the later Act will prevail, in so far as
they are inconsistent with the earlier Act.
- **Vauxhall Estates confirmed by Ellen Estates -> In the latter case
Maugham LJ confirmed that the legislature cannot bind itself as to
the form of subsequent legislation – Parliament cannot enact that in
a subsequent legislation dealing with the same subject matter there
can be no implied repeal. The effect must always be given to the latest
intentions of Parliament.
• Entrenchment as to the subject matter
- Could be problematic; consider something like a Bill of Rights which
encompasses constitutional rights of persons – Parliament could repeal
that expressly or impliedly at a later stage; with no entrenchment in
theory. Consider HRA 1998 – it has fundamental rights encompassed,
but it is not entrenched, at least not legally. Even not politically, since
conservatives and labour have both proposed its repeal.
- It’s often argued that, owing to their content and fundamental
importance, Acts of Union of 1706 and 1800 cannot be repealed and
have special status, i.e., are legally entrenched against repeal –
