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Workshop 9.1 - Historical background and theory - Coggle Diagram
Workshop 9.1 - Historical background and theory
Historical background
The Glorious Revolution marked the most significant long-term turning point in English constitutional history.
The coup against James II and his replacement by William III marked the final end of absolutist monarchy.
This was reflected in the key provisions of the Bill of Rights 1689 and later in the Act of Settlement 1701.
These founding pieces of legislation effectively enshrined the sovereignty of Parliament as an institution.
Statute made by Parliament became the highest form of law.
Evolution of parliamentary authority
Monarchs continued to have considerable political power well into the 19th century and the country remained a oligarchy for a considerable period.
There were three electoral Reform Acts in the 19th century, during which the franchise expanded gradually. It wasn't until 1928 that both men and women over 21 could vote on a equal basis.
The doctrine of parliamentary sovereignty is associated with Professor Dicey's writings in the 1880s.
Dicey's theory
There are 3 key elements to Dicey's theory:
1) Parliament is the supreme law making body
2) No Parliament may be bound by a predecessor or may bind a successor
3) No person or body may question the validity of an enactment of Parliament
Supreme law-making body
Dicey means that there are no substantive limitations on the legislation that Parliament may enact (he is referring to the absence of legal imitations - he acknowledged political limits).
Parliament can pass legislation that affects of alters part of the constitution.
No substantive restrictions on Parliament
Parliament can also legislate contrary to fundamental rights.
This point was made by Lord Hoffman in 2000 in the ex parte Simms case where he set out his legality principle.
Parliament can also legislate contrary to international law
Parliament can also pass legislation with retrospective effect.
No entrenchment
When Dicey said that no Parliament may be bound by a predecessor or bind a successor, he was referring to the absence of entrenchment as a constitutional safeguard in the UK constitution.
The UK's constitution does not possess any formal arrangements to entrench its constitutional fundamentals.
Constitution can be drastically changed by a single Act of Parliament. This could happen through new law or repeal of existing law.
Express repeal
This is when legislation is passed that expressly states an intention to replace an earlier Act.
This happens when there is a drive to consolidate and simplify legislation.
Implied repeal
This is when a new Act is partially or wholly inconsistent with a previous Act. If so, the previous Act is repealed to the extent of inconsistency.
This implicit repeal arises from the presumption that Parliament would not intend two incompatible statutes to be given effect at the same time. It would intent to give effect to the later statue - the most recent expression of its will.
Effect of implied repeal
Parliament cannot bind its successors so as to prevent a statute from being impliedly repealed.
This is a reflection of the traditional view that sovereignty takes a continuing form and that each new Parliament should have equal freedom to create new legislation.
This theory came from the cases of Vauxhall estates v Liverpool Corporation [1932] and Ellen St Estates v Minister of Health [1934]
Here the defendants were told that their compensation was to be assessed according to the Housing Act 1925.
They argued that their compensation should be calculated according to the (more generous) Acquisition of Land Act 1919 because this Act had expressed that it was to prevail over any other statutes (trying to prevent future implied repeal).
The courts denied that the 1919 Act was intended to have that effect as Parliament is not able to bind its successors. Therefore the 1925 Act was applied.
Validity of acts of Parliament
Law created by Parliament is supreme.
Acts of Parliament are the highest form of law, so neither the manner in which legislation is passed, nor the substance of the law, should be reviewable by the courts.
UK courts are not able to quash or invalidate primary legislation.
Diceyan theory doesn't allow for JR of any alleged procedural irregularity in the way that statue had gone through Parliament during the legislative process.
Enrolled bill rule
This means that is a bill has been enrolled (become an Act of Parliament) then it is impossible to go behind that.
Any departure from normal procedure during the passage of the bill cannot be corrected by the courts.
Parliamentary sovereignty and the character of the constitution
Parliamentary sovereignty can be seen as a primary element in forging the traditional character of the UK constitution.
The UK has a potentially highly flexible constitution.