Dicey's Parliamentary Sovereignty

ruth_sml
Mind Map by , created over 5 years ago

Mind Map on Dicey's Parliamentary Sovereignty, created by ruth_sml on 05/02/2014.

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ruth_sml
Created by ruth_sml over 5 years ago
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Dicey's Parliamentary Sovereignty
1 Parliament can legislate on any subject-matter
1.1 Examples
1.1.1 Contrary to international law: Mortensen v Peters [1906]. Parliaments can make or unmake any law.In Mortensen v Peters (1906) 14 SLT 227 the captain of a Norwegian fishing boat was convicted of an offence under the Herring Fisheries (Scotland) Act 1889 even though the Act regulated fishing outside the limit of Scottish waters recognised in international law. The case shows that the courts will recognise and enforce Acts of Parliament that apply outside UK territory.
1.1.1.1 Retrospective effect War Crimes Act 1991 Parliaments can legislate with retrospective effect.
2 Parliament cannot be bound by a predecessor or bind a successor
2.1 The doctrine of 'implied repeal: Each and every Parliament must be supreme in its own right. Consequently, no Parliament can be bound by a preceeding parliament, or bind a future one. The mechanism for securing this principle is known as the doctrine of implied repeal.
2.1.1 The doctrine of 'expressed repeal': This is where Parliament passes a new piece of legislation saying that the old one is repealed.
2.1.1.1 There can be no legislation entrenchment because the Uk parliament is soverign.
2.1.1.1.1 Examples
2.1.1.1.1.1 Under the traditional doctrine of Parliamentary Sovereignty, Parliament is free to make any laws it wishes and no other determinate body is able to override or set aside any Act of Parliament. Meaning, Parliament made laws would be superior than all the other sources of law and would remain in force even if the judges were to notice that the primary legislation is out of date. However, the Acts can be subject to being expressly and impliedly repeal. Implied repeal is where, if, any inconsistencies were to arise between the later statute and the former, then the later statute would impliedly repeal the former and the authority for it is Ellen Street Estates Ltd v Minister of Health (1934) [1] and Vauxhall Estates Ltd v Liverpool Corp (1932) [2] . But, constitutional statutes (Such as the Human Rights Act 1998) could only be expressly repealed. There is an added theory that Parliament is not bound by its predecessors or shall bind its successors.
3 No other body has the ability to override an Act of PArliament
3.1 The 'enrolled Act rule' No one can question the validity of an act of parliament. This was confirmed in the case of Cheney v Cann 1968.. " What the statue itself enacts cannot be unlwaful, because what the statue says is itself the law...". The rule of recognition 'The enrolled bill rule' - if an act appears in parliaent then it is an act of parliament. E.g - the case of Edingborough v Dalkeith Railway v Wauchope.
3.1.1 Examples
3.1.1.1 Edinburgh & Dalkeith Railway v Wauchope [1842] No one can set aside Parliament's laws - the courts and the "enrolled bill rule" The courts will not set aside an Act of Parliament. In Edinburgh and Dalkeith Railway v Wauchope [1842] UKHL J12 ,(1842) 8 ER 279, the owner of land over which a railway passed was granted in the private Act setting up the railway rights to payment dependent on the amount of goods and passengers carried over his land; but a later Act amended those rights. He tried to enforce payment on the original terms, arguing that the later amending Act could not be made applicable to him, since it affected his vested right, and had been introduced without due notice of its introduction being served on him.
3.1.1.1.1 Pickin v British Railways Board [1974] The approach was confirmed in British Railways Board v Pickin [1974] UKHL 1, [1974] AC 765. Again the case involved the owner of land affected by railway development, whose rights granted in one statute had been extinguished by a later private Act. He argued that in obtaining the enactment of the later Act the Board fraudulently concealed certain matters from Parliament and its officers and thereby misled Parliament. Again, the Lords rejected this.
3.1.1.1.2 This makes it clear that the courts will not "look behind" Acts of Parliament - they will simply apply any legislation which has passed both Houses and received Royal assent, regardless of whether proper Parliamentary procedure was followed, or for instance whether all MPs voted in the right lobby or whether tellers counted votes correctly. This is known as the "enrolled bill rule"
4 Limitation
4.1 In R Jackson v Attorney General [2005], it challenged the nvalidity of parliaments act.
4.1.1 In Madzimbamuto v Lardner-Burke 1969 - "It is often said that it would be unconstitutional for parliament to do certain things...for moral, political or other reasons." HOWEVER, "If parliament chose to do any of them, the courts could not hold the Act of Parliament invalid."
4.1.1.1 In Thorburn v Sunderland City Coucil 2002, A hierachy of statue was recognised. Constitutional statue were cosidered as not subject to implied repeal because they protect the special status of constitutional rights. Hence, such acts are to some extent entrenched and limit parliment supermacy in context of what it may legislate on. E.g,the European Communities Act 1972, The Human Rights Act 1998, the Acts of providing for Devolution.

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