818423
Dicey's Parliamentary Sovereignty
- Parliament can legislate on any subject-matter
- Examples
- 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.
- Retrospective effect War Crimes Act 1991 Parliaments can legislate with retrospective effect.
- Retrospective effect War Crimes Act 1991 Parliaments can legislate with retrospective effect.
- 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.
- Examples
- Parliament cannot be bound by a predecessor or bind a successor
- 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.
- The doctrine of 'expressed repeal': This is where Parliament passes a new
piece of legislation saying that the old one is repealed.
- There can be no legislation entrenchment because the Uk parliament is soverign.
- Examples
- 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notice that the primary legislation is out of date.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.
- 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.
- Examples
- There can be no legislation entrenchment because the Uk parliament is soverign.
- The doctrine of 'expressed repeal': This is where Parliament passes a new
piece of legislation saying that the old one is repealed.
- 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.
- No other body has the ability to override an Act of PArliament
- 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.
- Examples
- 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.
- 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.
- 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"
- 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.
- 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.
- Examples
- 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.
- Limitation
- In R Jackson v Attorney General [2005], it challenged the nvalidity of parliaments act.
- 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."
- 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.
- 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.
- 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."
- In R Jackson v Attorney General [2005], it challenged the nvalidity of parliaments act.
Want to create your own Mind Maps for free with GoConqr? Learn more.