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Workshop 9.2 - Limitations on parliamentary sovereignty - Coggle Diagram
Workshop 9.2 - Limitations on parliamentary sovereignty
Context
Westminster Parliament has unlimited legal powers.
No substantive or procedural limitation can in theory therefore apply to its legislative powers.
A number of legal and constitutional developments have taken place which have arguably diluted the purity of the Diceyan doctrine.
Procedural limitations
One issue is whether it is possible for Parliament to introduce procedural requirements to make it harder for subsequent parliaments to change the law.
This ideas is known as entrenchment by manner and form.
The Diceyan view is that Parliament could pass a statute that made it harder to amend or repeal legislation but this would not be binding on a successor parliament.
Additionally, the courts would not consider a challenge to the subsequent incompatible statute because of the enrolled bill rule laid down in Pickin v British Railways Board [1974]
Commonwealth cases - Attorney General for New South Wales v Trethowan [1932]
This concerned the legislature of New South Wales, Australia, which had originally been created by the UK Parliament in 1823.
In 1923, legislation was passed in NSW which prohibited the abolition of the upper chamber of the legislature without referendum approval.
The next year, the legislature passed two Bills designed to abolish the upper chamber without holding the required referendum.
The Privy Council granted injunctions preventing royal assent from being granted to the bills because they weren't passed in the correct manner.
Critics of the manner and form argument have pointed out that NSW legislature was not a sovereign legislature so its legal position is different from that of the UK's.
The possibility of manner and form entrenchment only seems to apply to subordinate legislatures, such as the devolved assemblies.
In Jackson v Attorney General [2005] Lady Hale said that "if the sovereign Parliament can redefine itself downwards... it may very well be that it can also redefine itself upwards. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed.
Legislative independence
One of the most notable challenges to the notion of Westminster omnipotence has been the ending of the Empire and partial erosion of the Union.
There has always been a different conception of the powers of Westminster in Scotland to that held in England and Wales.
The theory behind is that the Acts of Union were not created by the UK Parliament but by the original English, Scottish and Irish Parliaments. Hence the Acts created a new UK Parliament that did not have unlimited sovereignty.
The dominions
Dominion status was given to recognise a number of semi-independent states under the British Empire.
The Dominions' constitutions were established by UK Acts of Parliament. A convention developed that no new UK Act affecting a dominion would be passed without their permission.
This was confirmed in s 4 of the Statute of Westminster 1931.
Impact on Westminster sovereignty
Granting dominion status caused significant conceptual challenges to the original diceyan doctrine of parliamentary sovereignty.
Westminster Parliament had effectively legislated to reduce its own sphere of political theory.
Legal authority of Westminster?
The problem for the courts has been reconciling the undoubted political diminution of Westminster authority with the orthodox legal principle in Dicey's theory.
Some judges have stated that political change has not diminished the unlimited legal authority of Parliament.
Others have emphasised that political and legal authority operates on entirely different planes.
Impact of devolution
In the past autonomous powers given by Westminster have been suspended or taken away.
Direct rule from Westminster was imposed on NI from 1972-1998 after the province has been run by its own Government in Stormont from 1921.
Layers of local government have also bee abolished. For example, Thatcher abolished the Greater London Council in 1986.
Nevertheless, in the absence of more dramatic political events the political acceptance of devolution in Scotland and Wales means that it is very difficult to see how the original devolution would be reversed.
This is a political limitation on the authority of Westminster in Parliament rather than a legal one. Parliament can still unmake this law in Diceyan theory but in practical terms it takes the orthodox theory into abstract territory.