Doctrine Of Parliamentary Sovereignty Research Articles

Sovereignty and the Persistence of the Aesthetic

British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. As Loughlin and Tierney have recently argued, this approach obscures the political considerations which undergird the legal precept. In this article we argue that this approach misses a third, and essentially important, dimension to sovereignty. Law, politics and aesthetics all play equally important parts in constituting the essential structure of the concept. We elaborate this claim through a reading of some prominent accounts of sovereignty within the history of political modernity. At bottom, aesthetics is concerned with the ways in which the body's senses are stimulated and ordered; it therefore includes pictorial representation, ideation and imagination, as well as affect, instinct and habituated feeling. We argue that these different elements are usefully understood as all pertaining to a distinctive, and persistent, aesthetic dimension which is essential to the sovereignty concept.

Ripening time? The Welsh Labour government between Brexit and parliamentary sovereignty

The Welsh Labour government occupies a unique position in UK territorial politics, favouring neither the status quo nor independence for Wales while advocating a new settlement for the whole state. This article provides a detailed examination of its policy, focusing on its position on the doctrine of parliamentary sovereignty. Drawing from a range of documentary sources, we analyse the Welsh government’s constitutional proposals and its decision-making in the wake of the 2016 referendum on European Union membership. We argue that Welsh policy is defined by ambiguity. While it advances an alternative constitutional vision, it refrains from rejecting Westminster’s sovereignty outright. In the aftermath of the referendum, it sought to accommodate that sovereignty with its own constitutional claims through enhanced intergovernmental collaboration. In light of the Johnson administration’s centralising reforms, the strategy appears to have failed. Caught in the fractious politics of the Union, Welsh constitutional policy now faces an uncertain future.

Corporal Punishment: Law Reform Lessons for Australia from South Africa and New Zealand

This article compares the law reform methods employed by South Africa and New Zealand to eliminate the defence of ‘moderate and reasonable chastisement’ to a charge of common assault, to determine the best possible law reform strategy for Australian jurisdictions, within the context of its federal system of governance. South Africa and New Zealand banned corporal punishment on a national level, with South Africa prohibiting the use of corporal punishment by way of the judicial condemnation of the Constitutional Court in 2019, and New Zealand’s legislation to ban corporal punishment through Parliamentary processes in 2007. Corporal punishment in the home is still legal in Australia if administered by parents or those in loco parentis. This article focuses on the three Australian States that have enacted human rights legislation—Victoria, the Australian Capital Territory (ACT) and Queensland—and the impact of this legislation on judicial law reform. In this regard, the doctrine of parliamentary sovereignty is discussed in terms of its ability to limit public interest litigation’s viability to strike down inconsistent legislation. The article suggests that all three countries can learn from one another concerning the successes and/or failures of law reform. Furthermore, the article concludes by acknowledging that even though formal abolition is the norm in South Africa and New Zealand, corporal punishment remains widespread. Parents and those in loco parentis must be supported by continual education initiatives to bring about requisite social and cultural change.

‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/The Treaty of Waitangi in Aotearoa New Zealand

In 1840, some of the sovereign nations of Māori signed te Tiriti o Waitangi (the Māori language version of the Treaty of Waitangi) with the British Crown. Hone Heke was the first Māori leader of the northern nation of Ngāpuhi to sign, but by 1844 he was leading a significant revolt against British colonialism in Aotearoa New Zealand by chopping down British flagpoles erected on his lands. While Māori may have initially welcomed the intent of te Tiriti as a means for seeking British help to protect their international borders, the British prioritised the English version of the Treaty which recorded the transfer of sovereignty from Māori to the British. As the British transposed their dominant legal traditions of governance, including bringing to the fore their doctrine of parliamentary supremacy, Māori have been seeking their survival ever since. We extend this by focusing on why the doctrine of parliamentary sovereignty needs to adapt to the Treaty’s promise of bicultural power sharing.

The Shibboleth of Sovereignty

Sovereignty is the central tenet of modern British constitutional thought but its meaning remains misunderstood. Lawyers treat it as a precise legal concept – the doctrine of parliamentary sovereignty – but commonly fail to acknowledge that that doctrine is erected on a skewed sense of what sovereignty entails. In particular, they do not see that the doctrine rests on a particular political conviction, that the British state depends on a central authority equipped with an unlimited power. These two facets of sovereignty are now so deeply intertwined in legal consciousness that they cannot easily be unravelled and this becomes the main barrier to thinking constructively about Britain’s constitutional arrangements. This article substantiates these claims by explaining how the doctrine came into being, demonstrating how it is tied to a deeper political conviction, showing that its political underpinnings have been considerably weakened over the last century, and indicating how its re-working is the precondition of constitutional renewal.

The significance of a philosophical approach in constitutional adjudication with reference to the Prince case

The entrenchment of a Bill of Rights in a supreme Constitution in South Africa means that constitutionalism will become central in a new emerging jurisprudence. The constitutional requirement that the courts promote “the values which underlie an open and democratic society based on freedom and equality2 implies that the interpretive task will be radically different from what it was under the doctrine of parliamentary sovereignty. The duty imposed on the courts by section 39(1)(a) and 7(1) will compel them to make value choices and to make those values explicit through clear and transparent articulation.
 

The End of Democracy and the Beginning of Juristocracy? Does the Supreme Court Pose an Additional Limitation to Parliamentary Sovereignty?

This article identifies briefly the main limitations to the doctrine of Parliamentary Sovereignty and scrutinizes whether the Supreme Court poses an additional threat to this doctrine.

The UK's Fundamental Constitutional Principle: Why the UK Parliament Is Still Sovereign and Why It Still Matters

It has become almost trite to observe that the position of the doctrine of parliamentary sovereignty as the fundamental principle of the UK constitution is increasingly subject to challenge. Yet ev...

Intention, Supremacy and Judicial Review

Two competing theories have emerged as providing the constitutional basis for judicial review in the English courts: the ultra vires theory and the common law theory. Both attempt to rationalise the operation of judicial review in a way which is consistent with the doctrine of parliamentary sovereignty. They differ in their conceptions of what the doctrine requires. It is inherent in the ultra vires theory that sovereignty requires adherence to Parliament's assumed intent whereas under the common law theory it simply requires adherence to Parliament's legislation. The supporters of the former theory submit that we must assume Parliament intends the standards of good administration to apply to statutorily derived public power; indeed, that this is the only plausible assumption to make. I examine these claims. I argue that we cannot accurately ascribe any intention to Parliament and, consequently, we cannot claim that a particular assumption about Parliament's intent is the only one we can plausibly make. I also challenge the argument that we must assume Parliament intends the standards of good administration to apply to statutorily derived public power. I contend that this assumption is only necessary if sovereignty does indeed require adherence to Parliament's presumed intent but that this is not how we usually think of the doctrine; rather, parliamentary sovereignty is traditionally taken to prohibit the courts from acting contrary to Parliament's legislation, not its intention. Finally, I argue that reliance on legislative intent brings possible disadvantages.

Ancillary Powers of Constitutional Courts

I. Introduction Observers of the global judicialization of politics have noted the spread of constitutional courts around the world, which made their appearance in early twentieth-century Europe1 and became seemingly required practice thereafter in Asia, Africa, and Latin America.2 The paradigmatic power of these courts is constitutional review, in which a court evaluates legislation, administrative action, or an international treaty for compatibility with the written constitution. It is natural that writers on the new constitutional courts have concentrated attention on judicial review, for it is here that the courts' lawmaking power is at its apex. Relatively free of the threat of correction from other political actors, courts exercising judicial review are rather obviously policy-making bodies. But in their understandable eagerness to assess new systems of review, scholars have paid little attention to the other functions of constitutional courts - functions that potentially alter the status and effectiveness of the bodies. This Article is concerned with what we call the ancillary powers of constitutional courts - those powers that fall outside the prototypical constitutional-review function described above. Perhaps because of the prominence of constitutional courts and their function of reviewing legislation and government action, constitution drafters have given new courts a wide range of other tasks ranging from impeachment to certifying states of emergency. Just as Martin Shapiro has argued that scholars of American law and courts have paid too much attention to judicial review,3 scholars of the new constitutional courts also risk an incomplete understanding of courts as political institutions if they ignore these other powers of constitutional courts, which often place the courts in the midst of politically charged controversies. This Article is a first attempt to call attention to these powers as a set. It describes the powers, documents trends over time, and speculates as to the political consequences of assigning courts tasks beyond judicial review. We do not mean anything pejorative by labeling these powers ancillary. As a historical matter, the earliest constitutional power of courts was that of judicial review.4 The powers considered here arise later as a historical matter, and hence can be labeled ancillary in this sense. Furthermore, none of the powers considered here is seen as essential to the definition of a court as a constitutional adjudicator. The defining function of a constitutional court is constitutional review, and other powers may be bundled with that function, but need not be. As we will see, the ancillary powers vary in the extent to which they require the court to refer to a constitutional text, and some of them do not involve the constitution even nominally. But paradoxically, the involvement of courts in ancillary tasks has the potential to undermine their ability to conduct effective constitutional review, precisely because it pulls them into political conflicts. The Article is organized as follows: We begin with a review of the recent literature on constitutional review and judicial lawmaking. We then describe the evolution of some of the ancillary powers of constitutional courts around the world, both as provided by constitutional texts and as exercised in practice. We conclude by speculating on the tension that emerges between lawmaking and dispute resolution in the exercise of these ancillary powers. II. Constitutional Review and Judicial Lawmaking A. The Spread of Constitutional Review Constitutional interpretation is arguably an essential function of written constitutions, but for much of the history of written constitutions the task was primarily assigned (if at all) to the legislature in accordance with the doctrine of parliamentary sovereignty.5 The American experience with Marbury v. Madison6 was, however, emulated in several Latin American constitutions in the nineteenth century7 and in other countries, such as Norway, where courts announced the power to review legislation for constitutionality. …

It Takes Two to Tango - Have They Learned Their Steps?

The paper examines the reponse of New Zealand's Parliament to landmark human rights decisions. It also discusses the general debate on human rights in Parliament. Conversely it examines the courts' attitude towards the doctrine of parliamentary sovereignty. The paper' s thesis is that a dialogue between the New Zealand courts and Parliament exists.

Uncertainty in the Rule of Recognition and in the Doctrine of Parliamentary Sovereignty

Uncertainty in the Rule of Recognition and in the Doctrine of Parliamentary Sovereignty

ADMINISTRATIVE LAW FOR “LIVING PEOPLE”

Public power has exercised Sir David Williams throughout his distinguished career. He has emphasised his writing that administrative law, by which such power is controlled, is subject perpetual motion, constantly changing emphasis, content, and approach.1 In this, he echoes Bagehot's view of the English constitution.2 And indeed the control of public power through judicial review lies at the heart of the area of law we call constitutional. Felix Frankfurter thought that in administrative law we are dealing pre-eminently with law the making; with fluid tendencies and tentative traditions.3 Recent constitutional shifts have illustrated the point. They have shaken the fig leaves. Of the frenzy of academic repositioning that has followed, Sir David has simply said it was inevitable that as a by-product of the new constitutional developments, the literature on judicial restraint and judicial activism will grow haze of genuine anxiety.4 As to how judges might meet such anxieties controversial cases, his earlier advice presumably still applies. It depends each case, he says, on sense and good timing.5 Good luck, Judge! Mine is jurisdiction where similar constitutional shifts have occurred. In New Zealand, we too have no single written constitutional instrument. Indeed, it is widespread misconception that we have no constitutional law or that if we do it begins and ends with the doctrine of parliamentary sovereignty. Our Constitution Act does not purport to be constitutive. Enacted 1986 to repeal the Imperial Statute of 1852 which had originally conferred representative government, it simply recognises that the Parliament consists of the Sovereign right of New Zealand and the House of Representatives. The Parliament continues to have full power to make laws.6 There is separate

The Constitution as Higher Law

The doctrine of parliamentary sovereignty appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are carefully circumscribed by their respective constitutions. Nevertheless, the nature of the British constitutional order is remarkably similar to that of the written constitution. This is because the doctrine of parliamentary sovereignty, contrary to Dicey's view, does not consist in a single dominant idea but in a number of related and mutually supporting principles. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. In the United Kingdom, as elsewhere, the proper subject matter of constitutional law is the higher law that makes possible the operation of legislative, executive and judicial institutions under a public order of rules.

Should Britain Have a Written Constitution?

The question ‐ ought Britain to have a written, more properly, a codified constitution ‐ is perhaps wrongly put. The real question ought to be ‐ why should Britain not have such a constitution… She is, after all, one of just three democracies without one.There are two reasons why Britain has lacked a constitution. The first is that, historically, Britain never had a constitutional moment; the second is the doctrine of parliamentary sovereignty. Today, however, Britain finds herself engaged in the process of gradually converting an uncodified constitution into a codified one. There is undoubtedly a case in principle for enacting a constitution, but perhaps it ought to wait until the process is completed.There is, moreover, a tension between two types of codified constitution ‐ a lawyer's constitution which would be long and highly detailed, and a people's constitution which would be short, but, inevitably, broadly‐worded, and therefore open to interpretation by the courts.

The Doctrine of Parliamentary Sovereignty in Comparative Perspective

For the German-trained lawyer, the process of coming to terms with the constitutional law of the United Kingdom can be disconcerting. This disorientation arises principally because the study of constitutional law on the other side of the English Channel seems to lack an appropriate object to deal with. State order in the United Kingdom is not based on a definitive constitutional document created at a particular point in history which would be in any way comparable to the German constitutional document, the Basic Law (Grundgesetz). In spite of this, as Helmut Weber so aptly noted in a talk before the Centre for British Studies of Berlin's Humboldt University, “British textbooks on constitutional law […] are no less numerous and no less comprehensive than German textbooks onVerfassungsrecht”. This observation is not in the least surprising. Even though it may be disputed that a UK constitution exists in the narrower and more common continental European sense of the term, it cannot be denied that the learned discourse forming the body of constitutional scholarship in the United Kingdom is regarded by jurists not only in Europe, but in all corners of the globe, as an important standard for the scholarly examination of their own constitutional systems. This is certainly due in large measure not only to the centuries-old traditions of English constitutional law, but also to its striking intellectual depth and variety.

Scotland and parliamentary sovereignty

The authority of the classic Diceyan approach to parliamentary sovereignty has, as is well known, been called into question as a result of the UK's membership of the EU and human rights legislation. However, this paper focuses on the implications of Scottish devolution for the orthodox doctrine of parliamentary sovereignty. The constitution, and the legislative supremacy of Westminster within it, remains a controversial political issue in Scotland. Accordingly, rather than hypothesising inductively from constitutional doctrine, consideration is given to the nature of the interaction between the socio-political forces which underlie Scottish devolution and the concept of parliamentary sovereignty. It is contended that the foundations of the Scottish political order have shifted in a way which is already presenting significant challenges. Moreover, looking to the future, the pressure on the orthodox Diceyan approach is likely to intensify over time. In this context, it is questionable whether constitutional conventions of the sort which are already evolving or the possible development by the courts of more formal constitutional norms will, in the long term, be able to reconcile parliamentary sovereignty with Scottish political reality. Indeed, it is argued that — from a Scottish perspective at least — the viability of classic, Diceyan parliamentary sovereignty as a meaningful constitutional doctrine will be called into question in the years to come.

ST. GERMAN ON REASON AND PARLIAMENTARY SOVEREIGNTY

In the late-nineteenth century, Dicey defined with clarity the modern doctrine of parliamentary sovereignty, identifying both its positive aspect, that Parliament is legally empowered to make any law, and its negative aspect, that no court, institution or person is legally empowered to set Acts of Parliament aside. The historical genesis of this modern understanding of parliamentary sovereignty was, and continues to be, controversial. In his recent study of parliamentary sovereignty, Jeffrey Goldsworthy suggests that the sixteenth-century lawyer Christopher St. German, author of Doctor and Student as well as a series of publications relating to the Henrician Reformation, was likely “the first English writer to propound a comprehensive theory of parliamentary sovereignty”— a controversial claim given St. German's insistence that any “statute” made against the law of nature or reason is “voyd”.4 However, Goldsworthy appears to be supported by an impressive list of historians.

Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention

Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law.

The Channel Tunnel and English National Identity

The Channel Tunnel and English National Identity Brian Richardson (bio) Eve Darian-Smith, Bridging Divides: The Channel Tunnel and English Legal Identity in the New Europe (University of California Press) I will never think of Kent in quite the same way. In addition to being a county in England, Kent is also a legal, psychological, and inter-national/state/community entity that has also been an historical source, a legal and political ideal, and a point of demarcation. As Darian-Smith notes, the county and the channel, or at least their mythical existence, have been important aspects of English national identity. As a result, the building of the channel tunnel, which creates a fixed link between England and France, raises profound issues “of law, identity, and territory” (page 8). The discussion of English identity in Bridging Divides focuses on the complex, and often contradictory, existence of Kent, an existence which has been at the center of recent debates over the Channel Tunnel and the changing relationships between Britain and the European Community. Darian-Smith has chosen a very appropriate and timely topic to weave together several themes in English national identity — the garden, the island, the common law — with contemporary concerns for the political imaginary, post-colonialism, and symbolic geography. The debates over the channel tunnel bring together a wide range of competing political, national, and legal ideals, which focus attention on the problems and possibilities that are emerging with the European Community, and by extension with the reorganization of political structures throughout the world. And what her discussion encourages us to do, in the end, is to rethink the terms of the political debates, specifically when they either reaffirm the nation-state or resolve the nation-state into a global/local model. The emerging organizations and contests are not so easily contained: there are bureaucratic structures, material structures, and a host of other factors: psychological, historical, national, and so on, which all help form the terrain on which specific contests are engaged and ideals articulated. As she notes in her introduction, Inasmuch as the Tunnel is grounded in English and French national, regional, and local contexts, it is also a significant feature in the emerging pan-European political, economic, and cultural spheres. (page xiii) Kent, by representing the English side of the channel, has always been an important point of transit between England and the continent (or France, the distinction is never very clear). But with the channel the English also saw a natural distance between the island, their island, and the continent. The distance was both geographical and existential. The channel helped the English think of themselves as English. The connection between territory and national identity is best seen in Darian-Smith’s contrast between English common law, which is connected back to a local identity that has existed since time immemorial, and continental law, which is exemplified by the Napoleonic Code. One of the key concepts sustaining England’s ideology of freedom and its linkage to the state territory was the doctrine of parliamentary sovereignty. Having no codified legal system, English common law derived its legitimacy from having existed since time immemorial, thus predating sovereign authority. (page 31) The common law is important for Darian-Smith’s discussion insofar as it is through common law that the English nation is strongly connected to a specific place as well as extended back through time. It may be objected here that the author’s account of “England’s ideology” is simplified. While common law is clearly an important element of the English political order, there are also alternatives, such as can be found in many key English political theorists (Hobbes, Locke, Bentham, Mill and so on), where common law is at the very least subject to rational analysis, if not the activities of other players, such as the king and the contemporary political body. While this may be true — she does not even mention most of the key English political theorists — it may also be tangential to her argument. What she is primarily concerned with are the ideological commitments of contemporary England, and in particular of the inhabitants of Kent whom she has interviewed and interacted with. For them...