{"id":301,"date":"2019-08-05T08:49:03","date_gmt":"2019-08-05T08:49:03","guid":{"rendered":""},"modified":"2019-08-07T11:24:36","modified_gmt":"2019-08-07T11:24:36","slug":"dicey-definition-parliamentary-sovereignty-0281","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/constitutional-law\/dicey-definition-parliamentary-sovereignty-0281.php","title":{"rendered":"Accuracy of Dicey\u2019s Definition of Parliamentary Sovereignty"},"content":{"rendered":"

Does
\nJackson [2005] UKHL 56 prove that Dicey\u2019s definition of Parliamentary
\nsovereignty is no longer accurate?<\/em><\/strong><\/p>\n

Parliamentary
\nsovereignty is the idea that Parliament are the supreme law makers who can
\nlegislate at will and that no one is above Parliament. Dicey provides his
\ndefinition of parliamentary sovereignty stating that \u201cThe principle of
\nParliamentary Sovereignty means that neither more nor less than this, normally,
\nthat Parliament\u2026. Has, under the English constitution, the right to make any
\nlaw whatever; and further, that no person or body is recognised by the law of
\nEngland as having a right to override or set aside the legislation of
\nParliament.\u201d[1]<\/a> This perspective was
\ndeemed highly important when discussing sovereignty as Dicey provided.<\/p>\n

It is also
\nimportant to establish what the Jackson Case[2]<\/a>
\nwas about. The 1911[3]<\/a> Act was passed which was
\ndeemed to be constitutionally sound. Under this Act, it passed the 1949[4]<\/a>
\nAct which bypassed the House of Lords consent. Under these two Acts it was made
\nillegal to hunt with dogs under the \u2018Hunting Act 2004\u2019[5]<\/a>.
\nAs this was passed under the two Acts, (1911 and 1949) it became a debatable
\ntopic whether this was a legitimate act that could be valid and enforceable as
\nit bypassed the House of Lords.  In
\nresponse to this, the claimants argued that the 1911 Act allowed secondary
\nlegislation to be produced. Another problem that arises was the fact that the
\n1949 Act, was legislated through the 1911 Act which retained the idea that this
\ntoo could not be used to pass laws as it was made via the 1911 Act which bypassed
\nthe House of Lords procedure.  <\/p>\n

Under the \u2018doctrine\u2019 of supremacy1<\/sup>, Dicey states that there were three key points of Parliamentary Supremacy. This was that Parliament can make any law, it cannot be overridden by any body and that Parliament cannot bind its successors, nor can it be bound by predecessors.1<\/sup> This was supported in the case of Mortensen[6]<\/a> demonstrating that Acts of Parliament breach international law.<\/p>\n

In respect
\nto the Jackson case, it became apparent that this definition that Dicey gave
\nwas becoming no longer accurate. This was particularly illustrated as the case
\nhighlighted that the process of illegalising hunting had resulted in
\n“extending the life of Parliament\u201d1<\/sup> which evidently is illegal
\nand exhibited that Dicey\u2019s doctrine was becoming inaccurate. The 1911 and 1949
\nAct was viewed as a great danger to Parliament as theoretically it allowed the
\nCommons to pass any law they wished. <\/p>\n

A key
\ndiscussion in the judgments of the Jackson case was the \u2018decay\u2019 of
\nParliamentary Sovereignty. Lord Hope gives reason that the dissolving of its
\nsovereignty is due to its \u201cown enacted measures.\u201d[7]<\/a>
\nThe reasoning given for this was due to the 1911 and 1949 Act allowing the
\nHouse of Commons to enact legislation without the approval of the House of Lords.
\nTherefore, this was seen as limiting and undermining the sovereignty of
\nparliament as another body held legislative power. This also demonstrated that
\nDicey\u2019s definition is no longer accurate as he states that no one has the right
\nto \u201coverride or set aside the legislation of Parliament.\u201d1<\/sup> But
\nclearly, the two Acts reject Dicey\u2019s idea that Parliament are the only
\nlegislative powers.  It was further
\nargued that these Acts allowed the House of Commons to potentially have the
\npower to enact any legislation and to make any changes to the constitution.
\nPreviously, as displayed in the case of Pickin[8]<\/a>,
\nLord Reid stated that the courts did not have the lawful power to void Acts or
\nto question validity.[9]<\/a>  <\/sup>In regard to this, Jackson (2005)
\ndisplayed an opposing view as it was seen that the courts could ignore the
\n\u201cenrolled Act\u201d[10]<\/a> which states that
\nlegislation must be applied without questioning Parliament. This further
\nillustrates that Dicey\u2019s definition is no longer accurate as Jackson had
\nchallenged the process.<\/p>\n

Bogdanor[11]<\/a>
\nargued that Jackson represented the idea that it was possible that the courts
\nwere using the 1911 and 1949 Act as a \u201cposition for future battles.\u201d Although
\nthis doesn\u2019t explicitly illustrate that Dicey\u2019s definition is no longer
\naccurate, it does display that the courts started to believe that they may have
\n\u2018power\u2019 over Parliament, which ultimately suggests that the sovereignty of
\nParliament has weakened. <\/p>\n

Overall, it is reasonable to conclude that although the definition Dicey gave was the \u2018principle\u2019 of Parliamentary sovereignty, this has become dated and is no longer accurate. This was confirmed in the Jackson case as it displayed in various ways that Dicey\u2019s definition was no longer accurate due to the facts that the 1911 and 1949 Acts allowed legislation to be enacted without the consent of the House of Lords. This ultimately contradicted the established doctrine of parliamentary sovereignty as the Jackson case displayed that Parliament had been overridden and were not the only body to enact legislation. The fundamental basis of Parliamentary sovereignty is that Parliament are supreme, the Jackson case established that there were limitations on this.  <\/p>\n

Bibliography<\/h4>\n