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Law - Public
May 2002 Zone B, Q1
To what extent, if at all, is Dicey's analysis of Parliamentary Sovereignity still accurate?
¡E View -> Q
¡E To what extent is Dicey's relevant?
¡E Dicey's orthodox/traditional theory of PS
¡E Finality rule - Pickins v BRB(Dicey's 2nd limb), Edinburgh v Dalkeith Railway
¡E Doctrine of Implied Repeal - Vauxhall Estates, Ellen St Estates
¡E Possible limitations? (Types of limitations? - Legislative capacity, Political and Procedural)
- Legislative capacity: Law making process
- Political: Technically Pt can still do what they want; but realistically?
- Procedural: Ranasingle, Harris, Trethowan(all persuasive)
Dicey's views is still relevant but his views must be seen in a contemporary context. There are 6 possible limitations that we will examine. Conclude that none of this 6 constitute a legal or a legislative legislation.
However, some of these challenges may clearly amount to political/social/practical limitations on a modern day Parliament. And this is particularly the case with the acts conferring Devolution, the HRA 1998, and the European Union.
To a certain extent today, Parliament is still supreme.
(Explain the 3 limbs of Dicey...)
a) Pt can make/unmake any kind law whatsoever
b) No body or persons may set aside law passed by Parliament
c) One Parliament cannot bind another
1) Statute of Wesminster 1931 ... S4
S4 -Pt should not legislate for a dominion country unless that country requires and consents to such legislation.
Madzimbamuto v Lardner Burke:
Passing the Southern Rhodesia Act without their consent. This is against S4. Thus, this is not a legitimate limitation and Pt is still supreme. The Dicey-an theory is also upheld here.
Although S4 could be a political limitation.
British Coal Corp v R, "Pt could as a matter of abstract law repeal or disregard S4 of the statute. But that is theory and has no relation to reality."
Blackburn v AG, L.Denning, "In legal theory, one Pt cannot bind another and no act is irreversible. But legal theory does not always march alongside political theory."
2) Acts of Union of Scotland(1707) & Ireland(1800)
(explain why the unions exist)
Today's UK Pt is said to be the fusion or the result of these 2 acts of Union. Under the 1707 Treaty of Union with Scotland, the Pt of Great Britain was created from the Pt of England, Wales and Scotland. A similar result was reached with Ireland in 1800.
There are 2 main arguments why it consists of a limitation:
a) The treaty required that laws could only be passed for Scotland if it was for the "Evident Utility" of the Scottish subjects.
b) The treaty also required the Union to last forever. This goes against the Dicey-an 3rd limb.
Similar arguments arose for Ireland in the Act of Union with Ireland in 1800.
However, the above arguments may be rebutted on the following grounds:
i) There have been examples of laws which have been passed which have not been for the evident utility for the Scots.
ii) Note that these acts may be repealed. They are not entrenched acts of Pt.
iii) A contemporary and recent example where Pt went against the provisions of the Act of Union with Scotland was through the Scotland Act 1998 because this act created a new and separate Pt for the Scots. (This is devolution)
iv) Note also that as far as Ireland was concerned, here to there was a departure from the Act of Union 1800 because in 1949, Ireland was split into 2. The North is still part of UK and the rest is now known as the Republic of Eire.
The process of devolution in 1998 was brought about by the Labour Govt and as a result of this, this has created a new constitutional settlement for the UK.
Scotland Act 1998...S29:
- S29: The Scottish Pt cannot make law if it relates to a "reserved matter" or if it is in breach of the restrictions in Schedule 4 or if it is incompatible with any convention rights or with Community Law.
S5 of the act defines "reserved matters" and it consists of a wide category of areas. Therefore, we can say that the Scottish Pt has very limited legislative powers.
Further, also take note of S28(7): "This does not affect the power of the Pt of the UK to make laws for Scotland."
Same arguments for Northern Ireland but there are more restrictions from Northern Ireland(look at S5, "...cannot legislate on 3 areas"):
a) Reserved matters
b) Excepted matters
c) Transferred matters
For Wales: Primary acts of Pt are still made by Westminster.
4) Manner + Form & Redefinition theory(Procedural Limitation)
ie where Pt has to follow a particular/manner/form/procedure. Refer to cases such as Ramasinghe(Ceylon), Harris(South Africa), Trethowan(Australia).
In all these 3 cases, the manner + form argument was a limitation in these 3 countries.
5) HRA 1998 -> S3, 4, 10, 19
S3(1): Casts a duty of Statutory interpretation 'so far as it is possible to do so.'
(Appears to violate Dicey's 1st and 3rd limb)
Does it affect PS? Dicey's 1st and 3rd limb...
But supremacy is still there because Parliament can still repeal HRA '98.
S3(1) must be balanced with S3(2)(b) and (c): "...if there is a conflict between Parliamentary acts and the HRA, the Parliamentary act is still valid..."
S4: Declaration of Incompatibility. It's the job of the relevant Minister to amend the act.
- Mental Health Review case(2001): Goes against Dicey's theories.
S10: There is a discretion on a minister to amend or not.
S19(1)(a): Minister must state that his own bill does not go against HRA. Where is PS then?
S19(1)(b): But if statement cannot be made, govt may still proceed with the bill.
6) European Union
ECA 1972: EU law became part of UK law.
S2(1): Direct application
S2(4): All acts passed after 1972 must be read in line with the 1972 act.
ECJ - Costa v Enel
- Van Gen En Loos
- Van Dugu v HO
UK - MaCarthy's
- Pickstone v Freeman
by Michael C on Wednesday, April 23, 2003