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Lecture notes Constitutional and Administrative Law
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- University Of Leicester (LE)
lecture notes on parliamentary sovereignty
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Parliamentary Sovereignty: DICEYS DOCTRINE-traditional/dominant point of view. Right of Parl to make and unmake
law (change its mind). Parl can legislate on any topic. Can enact a law and create another
one that is inconsistent; contradict itself-no act of Parl is entrenched (not
fixed/protected/permanent). Can be unmade-1) pass a new law saying prev. act is repealed
(expressly repealed); 2) parl can ignore previous law and make a new law that contradicts
(flexibility since we can unmake law-not entrenched) POSITIVE limb (capabilities).However
the negative limb-NO ONE (no body/instit.) has right to override an act of Parl; courts are
main target of neg limb; courts cant strike down/set aside act of Parl.; they give effect to
law. Parl=on top of constit. structure. Acts of Parl cant be ignored. PARLIAMENT IS LEGALLY
UNLIMITED-legislate any topic and ?
Diceys doctrine analysed-Absence of legal limits:
o Political/moral limits-never enacted extreme laws (e.g. killing all blue eyes babies);
political suicide to support extreme laws (voting). Parl. has own conscious/morals-
wouldn’t get a majority. They can make laws like this but probably wont.
o Practical limits-e.g. cant influence laws of physics. PARLIAMENT CANT DO
EVERYTHING
o Enforcement limits-courts might not feel obliged to follow?
DICEYS DOCTRINE IN CASELAW-SUPPORTING HIS DOCTRINE
o Enrolled Bill Rule: Edinburgh & Dalkeith Rly Co v Wauchope (1852?) before Dicey’s
doctrine? Valid Act of Parl; all a court can do is look at Parliamentary role (list
doesn’t exist anymore); must give effect if its on list; Pickin v British Railway Board.
HoL decision in 1970’s?
o Parliament not limited by international law=Mortensen v Peters. Courts argues Act
of Parl shouldn’t matter if it breaches international law. International Court of
Justice. Case is about international law not EU; international law cannot limit Act of
Parl; Cheney v Conn-uk tax payer sought to avoid taxes, some being used to
manufacture nuclear weapons; argument failed and courts didn’t accept; if there
was act of Parl, courts must give effect.
o Doctrine of Implied Repeal-Vauxhall Estates v Liverpool Corporation; fixed level of
compensations, sought to entrench. Any Act seeking to change amount of
compensation will be ineffective in future, unchanged (one parl saying future parl’s
will have to abide) BUT PARL SEEKS TO REDUCE COMPENSATION TO LAND OWNERS
DUE TO GREAT DEPRESSION ETC. landowners argued they cant change it.; Ellen
Street Estates v Minister of Health. ?
Different theories of Parl Sov:
o CONTINUING VIEW-Each new P has absolute sov and isn’t bound by the enactments
of its predecessors. PARLIAMENT CAN DO EVERYTHING EXCEPT BINDING FUTURE
PARLIAMENTS/PREDECESSORS. Theory of continuing sov.
o ?self-embracing view?
o ‘New view’ of Parl Sov-manner and form theory. 2/3rds of majority in both parl. parl
can make any law, just has to follow certain procedure (refer to Han-Ru Zhou
‘revisiting the “manner and form” theory of parl sov’) Jennings-prince with supreme
power/power to enact law in proper legal form. Heuston: Parl can bind itself as to
composition and procedure (sometimes called manner and form) but not as to the
area of power. Problem with this view-what happens if procedure is very extreme;
substantive effects?
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