201467701
Question 2
A.V Dicey’s orthodox view of parliamentary sovereignty is that Parliament has
‘the right to make or unmake any law,’ and, further ‘no person or body is
recognised by the law of England as having a right to override or set aside the
legislation of Parliament.’ According to this definition, judges should always
remain committed to the doctrine of parliamentary sovereignty. However, in
recent times, it is becoming increasingly questionable whether the doctrine of
parliamentary sovereignty remains sustainable. This has resulted in cases where
parliamentary sovereignty has been adhered to, and alternatively where the
doctrine has been limited. As this is contradictory, it can be argued that the
approach to parliamentary sovereignty by the courts is unsatisfactory. However,
there is also an argument to suggest that limiting parliamentary sovereignty is
acceptable as it is now outdated, despite the fact that this is contradictory.
Firstly, courts in the UK do not have the ability to strike down or invalidate an
Act of Parliament, nor can they declare an Act to be unlawful or unconstitutional,
as Parliament is the sovereign lawmaker. Therefore, courts are bound to apply
legislation, however in doing so, Parliamentary sovereignty may be limited. In
the case of Jackson (2005), a challenge was posed to the Hunting Act 2004. There
was an underlying legal issue; the Parliament Act 1949 was passed using the
Parliament Act 1911 which was not an ordinary legislative process. It was
questioned whether this was lawful. In this case, obiter dicta from Lord Steyn was
significant in relation to the courts committing to parliamentary sovereignty. Lord
Steyn in Jackson (2005) said that ‘the classic account given by Dicey of the
doctrine of the supremacy of parliament, pure and absolute as it was, can now be
seen to be out of place in the modern United Kingdom.’ This shows that the courts
may find it difficult to strictly follow parliamentary sovereignty as it is no longer
compatible with the modern-day society. If the courts do find difficulty in
, 201467701
committing to the doctrine of parliamentary sovereignty, it’s application by
judges is likely to be contradictory which can be said to be unsatisfactory, as the
doctrine itself requires that is consistently adhered to. Also, within the obiter dicta
in the case of Jackson (2005) is a statement from Lord Hope saying, ‘our
constitution is dominated by the sovereignty of parliament. But parliamentary
sovereignty is no longer, if it ever was, absolute… 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 the absolute legislative sovereignty
of parliament... is being qualified.’ In this statement, Lord Hope is supporting the
importance of parliamentary sovereignty within the UK constitution, but in
agreement with Lord Steyn, he is contesting its position in the present time,
suggesting it is no longer sustainable. Moreover, Baroness Hale shares a similar
opinion to that of Lord Hope and Lord Steyn in the case of Jackson (2005), stating
that ‘the courts will treat with particular suspicion (and might even reject) any
attempt to subvert the rule of law by removing governmental action affecting the
rights of the individual from all judicial scrutiny,’ whilst still attesting to the fact
that parliamentary sovereignty is a ‘fundamental’ concept of the UK constitution.
Ultimately, their argument was rejected on the basis that it was not supported by
‘reasoning’ or ‘authority’, as T. Bingham raised. However, the judges in the case
of Jackson (2005) essentially put forward the argument that strictly committing
to the doctrine of parliamentary sovereignty is no longer necessarily the right
course of action, despite this being the accepted thing to do. Parliamentary
sovereignty remains, but Jackson (2005) posed a modern challenged to the
doctrine.
In contrast, there are many judges who would disagree with the opinion held by
the judges in the case of Jackson (2005); and still uphold the doctrine of
parliamentary sovereignty in cases. In the case of Mortesen v Peters (1906), Lord
Justice General said that ‘an Act of Parliament duly passed by Lords and
Question 2
A.V Dicey’s orthodox view of parliamentary sovereignty is that Parliament has
‘the right to make or unmake any law,’ and, further ‘no person or body is
recognised by the law of England as having a right to override or set aside the
legislation of Parliament.’ According to this definition, judges should always
remain committed to the doctrine of parliamentary sovereignty. However, in
recent times, it is becoming increasingly questionable whether the doctrine of
parliamentary sovereignty remains sustainable. This has resulted in cases where
parliamentary sovereignty has been adhered to, and alternatively where the
doctrine has been limited. As this is contradictory, it can be argued that the
approach to parliamentary sovereignty by the courts is unsatisfactory. However,
there is also an argument to suggest that limiting parliamentary sovereignty is
acceptable as it is now outdated, despite the fact that this is contradictory.
Firstly, courts in the UK do not have the ability to strike down or invalidate an
Act of Parliament, nor can they declare an Act to be unlawful or unconstitutional,
as Parliament is the sovereign lawmaker. Therefore, courts are bound to apply
legislation, however in doing so, Parliamentary sovereignty may be limited. In
the case of Jackson (2005), a challenge was posed to the Hunting Act 2004. There
was an underlying legal issue; the Parliament Act 1949 was passed using the
Parliament Act 1911 which was not an ordinary legislative process. It was
questioned whether this was lawful. In this case, obiter dicta from Lord Steyn was
significant in relation to the courts committing to parliamentary sovereignty. Lord
Steyn in Jackson (2005) said that ‘the classic account given by Dicey of the
doctrine of the supremacy of parliament, pure and absolute as it was, can now be
seen to be out of place in the modern United Kingdom.’ This shows that the courts
may find it difficult to strictly follow parliamentary sovereignty as it is no longer
compatible with the modern-day society. If the courts do find difficulty in
, 201467701
committing to the doctrine of parliamentary sovereignty, it’s application by
judges is likely to be contradictory which can be said to be unsatisfactory, as the
doctrine itself requires that is consistently adhered to. Also, within the obiter dicta
in the case of Jackson (2005) is a statement from Lord Hope saying, ‘our
constitution is dominated by the sovereignty of parliament. But parliamentary
sovereignty is no longer, if it ever was, absolute… 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 the absolute legislative sovereignty
of parliament... is being qualified.’ In this statement, Lord Hope is supporting the
importance of parliamentary sovereignty within the UK constitution, but in
agreement with Lord Steyn, he is contesting its position in the present time,
suggesting it is no longer sustainable. Moreover, Baroness Hale shares a similar
opinion to that of Lord Hope and Lord Steyn in the case of Jackson (2005), stating
that ‘the courts will treat with particular suspicion (and might even reject) any
attempt to subvert the rule of law by removing governmental action affecting the
rights of the individual from all judicial scrutiny,’ whilst still attesting to the fact
that parliamentary sovereignty is a ‘fundamental’ concept of the UK constitution.
Ultimately, their argument was rejected on the basis that it was not supported by
‘reasoning’ or ‘authority’, as T. Bingham raised. However, the judges in the case
of Jackson (2005) essentially put forward the argument that strictly committing
to the doctrine of parliamentary sovereignty is no longer necessarily the right
course of action, despite this being the accepted thing to do. Parliamentary
sovereignty remains, but Jackson (2005) posed a modern challenged to the
doctrine.
In contrast, there are many judges who would disagree with the opinion held by
the judges in the case of Jackson (2005); and still uphold the doctrine of
parliamentary sovereignty in cases. In the case of Mortesen v Peters (1906), Lord
Justice General said that ‘an Act of Parliament duly passed by Lords and
