5481412
Descrição
FlashCards por Dina Storz, atualizado more than 1 year ago
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Criado por Dina Storz
mais de 8 anos atrás
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| Questão | Responda |
| Jackson v attorney general 2005 UKHL | 1.the Parliament act 1911 and Parliament act 1949 2.the Jackson case – the basics 3.Jackson – the key issues and holdings 4.Jackson: the far-reaching Dicta Jeffrey Jowell Lord Hope, "sovereignty in question – view from the bench" WG Hart Legal Workshop (28 June 2011) |
| the Parliament act 1911 and Parliament act 1949 | Section 2 (1) of the Parliament act 1911: 2 (1) "if any public bill (other than a money bill or a bill containing any provision to extend the maximum duration of parliament beyond five years) is passed by the House of Commons in three successive sessions (whether of the same parliament or not), and, having been sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that bill shall, on its rejection for the third time by the House of Lords, unless the House of Commons direct to the contrary, be presented to his Majesty and become an act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill: provided that this provision shall not take effect unless two years have elapsed between the day of the second reading in the first of the sessions of the Bill in the House of Commons and the date on which it passes the House of Commons on the third of those sessions" |
| the Parliament act 1911 and Parliament act 1949 continued | Question: is an act passed under this provision in "act of Parliament" or a form of delegated legislation that is controllable by judicial review? Parliament act 1949: this bill amends the PA 1911 to the effect that the Lords can reject the bill twice in two successive sessions, and provided one year has elapsed, the Commons can present the bill for Royal Assent. |
| The Jackson case – the basics | Facts: the hunting act 2004 was enacted using the Parliament act 1949, which was itself enacted under the procedure provided by the Parliament act 1911. Claimants' argument: (1) acts adopted under the Parl Acts subordinate or delegated legislation; subordinate legislatures cannot stand on their powers ('delegatus non potest delegare'); (2) general words in section 2(1) should not be interpreted as allowing changes to fundamental principles of law such as identity of the sovereign. Held: the 1949 and 2004 acts were valid. |
| Jackson - the key issues and holdings | 1. is the question of the validity of an Act of Parliament justiciable? yes (unanimous) 2.is legislation passed under the Parliament Acts 'delegated legislation'? no (unanimous): Wade and Hood Phillips were wrong 3.would a bill to prolong the life of Parliament adopted through the Parliament Acts be recognised as a valid act of Parliament? No – Lord Bingham, Nicholls, Steyn, hope, Carswell, Brown and Lady Hale no view expressed - Lords Walker; Lord Rodger implied that it could be recognised as such 4.with a bill to amend the Parliament Acts, passed through its procedure with an aim to prolong the life of Parliament, the accepted as a valid act of Parliament? no – Lord Nicholls, Steyn, hope, Carswell, Lady Hale: you cannot do in two steps what you cannot do in one yes – Lord Bingham 5.are there any other amendments to the 1911 act that would be regarded as "too fundamental" to allow to pass through the procedure in the Parliament Acts? various answers given a) no limits: Bingham b) 1 exception: as per point 4 c) maybe more: Carswell, Brown |
| Jackson: the far-reaching dicta | The possibility of manner and form legislation |
| Jackson: the far-reaching dicta quote Lord Steyn | Lord Steyn: "we do not in the United Kingdom have an uncontrolled constitution as the attorney general implausibly sat. In the European context the second factor Factortame decision 1991 made that clear. the settlement contained in the Scotland act 1998 also point to a divided sovereignty. Moreover, the European commission on human rights as incorporated into law by the human rights act 1998, created a new legal order. One must not assimilate the European commenting on human rights with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect civil rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by dici of the doctrine of the supremacy of Parliament, pew and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. |
| Jackson: the far-reaching dicta quote Lord Steyn continued | "if that is so, 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 House of Lords or new Supreme Court may have to consider whether this is constitutional fundamental which even a sovereign parliament acting at the behest of a complacent House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion." |
| Jackson: the far-reaching dicta quote Lord Hope 104 | "My Lords, I start where my learned friend, Lord Steyn, has just ended. a constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920]. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step-by-step, gradually but surely, the English principle of absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified. |
| Jackson: the far-reaching dicta quote Lord Hope 105 | "For the most part these qualifications are themselves the product of measures enacted by Parliament. Part I of the European communities act 1972 is perhaps the prime example. Although Parliament was careful not to say in terms that could not enact legislation which was in conflict with community law, that in practice is the effect of section 2 (1) when read with section 2 (4) of that act. The direction and section 2 (1) that community law is to be recognised and available law and is to be given legal effect without further enactment, which is the method by which the community treaties have been implemented, concedes the last word in this matter to the courts. The doctrine of the supremacy of community law restricts the absolute authority of Parliament to legislate as a once in this area. |
| Jackson: the far-reaching dicta quote Lord Hope 106 | "It has been suggested that some provisions of the acts of union of 1707 are so fundamental that they lie beyond Parliament's power to legislate. Lord President Cooper in MacCormick v Lord Advocate 1953 reserved his opinion on the question whether the provisions in article XIX of the Treaty of union which purport to preserve the Court of session and the laws relating to private right which are administered in Scotland are fundamental law which Parliament is not free to alter. [...] |
| Jackson: the far-reaching dicta quote Lord Hope 107 | "Nor should we overlook the fact that one of the guiding principles that were identified by dicey at page 35 was universal rule or supremacy throughout the constitution of ordinary law. Owen Dixon, "the law and constitution" 1935 was making the same point when he said that it is of the essence of supremacy of the law that the court shall disregard as unauthorised and void the acts of any organ of government, whether legislative or administrative, which exceed the limits of the power that organ derives from the law. In its modern form, now reinforced by the European Convention on human rights and the enactment by Parliament of the human rights act 1998, this principle protects individual from arbitrary government. The rule of law in force by the court is the ultimate control in fact on which a constitution is based. The fact they were lordships have been willing to hear this appeal and to give judgement upon it is another indication that the courts have a part to play in defining the limits of Parliament's legislative sovereignty." |
| Jackson: the far-reaching dicta quote Lady Hale 159 | "the concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything. The courts will, of course, decline to hold that Parliament has interfered with fundamental rights and lesser has made its intentions crystal clear. The courts will treat with particular suspicion (I even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from or judicial scrutiny. Parliament has also, for the time being at least, limited powers by the European communities act 1972 and, in a different way, by the human rights act 1998. it is possible that other qualifications may emerge in due course. In general, however, the constraints upon what Parliament can do are political and diplomatic rather than constitutional. |
| Jeffrey Jowell p. 571 re Jackson | "the dicta in Jackson go further than any judicial pronouncement to date suggest that the absolute sovereign authority of Parliament is no longer acceptable as a prime constitutional principle" p. 571 |
| Lord Hope, "sovereignty in question – a view from the bench" WG Hart Legal Workshop ( 28 June 2011) Quote | "my point in Jackson, and I think the point that Lord Steyn was making too, is that the ultimate safeguard against such abuses of the legislative power of Parliament lies in the power of the judges. After all, other countries such as the USA, Canada and Germany believe that rights are better protected when judges, rather than politicians, have the last word. It does no harm to our unwritten constitution for the judges to indicate to the executive arm of government that should not assume that the sovereignty of Parliament, over which as control, is entirely unlimited. The absence of a general power to strike down legislation which it has enacted does not mean that the courts could never fashion a remedy used in an exceptional case where the survival of the rule of law itself is threatened because there will ultimate guardians of it was being removed from them." |
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