Parliamentary Sovereignty And The Rule Of Law - Public Law

Parliamentary sovereignty and the rule of law: Dicey or not?

How does Dicey claim to achieve reconciliation between Parliamentary sovereignty and the rule of law?

• Parliament is the ultimate sovereign. The courts can interpret statute but they cannot strike it down. No one can go against Parliament’s laws.

• There are 2 limits to this power. The external limit (if people do not obey the laws then they have no power) and the internal limit (there is a moral mood in society that Parliament is affected by). Elections are also a limit.

• He reconciled his arguments by saying that laws of Parliament must be formal and thoughtful because they go through three arms of Parliament and the courts will interpret them when they become Acts. This forces them to consider the statutes carefully.

What criticisms have been made about his views?

• Equality before the law is too narrow. Not everyone is subject to the same law.

• If Parliament can pass any legislation, how does this protect the rule of law?

• Law is discretionary. Jennings argued that judges choose to persecute and the police choose to arrest. Does this make us all under the same law?

• He overstated the role of judges to overcome the deficiencies of the common law. They often wait for Parliament to legislate against the deficiencies and put in place statute to protect civil rights.

• He does not deal with the powers that Parliament can acquire in emergency and not remove.

• The rule of law is not a good way to protect human rights if the Parliament does not respect it.

• The freedoms of others can infringe on your rights. Just because the law does not tell you to do something, doesn’t mean you can do it. Often freedom can be achieved through the drafting of laws.

• Dicey’s theories are easily manipulated.

What do you think is needed to achieve the rule of law?

• There needs to be a greater idea of what liberty and justice are. The courts need to interpret correctly to preserve human rights. Democracy should be a limit on Parliament.

• Mason: A culture of compliance- psychological acceptance that the Constitution is the final word. Separation of powers. Written constitution. Responsible government. Entrenched limits to parliamentary sovereignty like referendum, police enforcement, bill of rights, judiciary must be independent and have judicial review and interpretation. Not all rights are written down.

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The Westminster Constitution:

• In the 1890s , AV Dicey’s writings clearly influenced the framers of the Australian Constitution.

AV Dicey, Introduction to the study of law of the Constitution (1885):

• Parliament is sovereign in the UK because there is not judicial review or constitutionality of legislation (makes his theories less applicable to Australia). Statutes are supreme over the common law.

• Parliamentary sovereignty is the right of parliament to make or unmake any law. It has the right to set legislation and no body or person is recognised by the law of England as having right to override it.

• Parliament means in the mouth of a lawyer.

• A law is any rule enforced by the courts.

• Elector’s power comes from their right to choose members of Parliament. Yet legally they have no control over Parliamentary laws.

• A large proportion of English law is made by judges. But they cannot exercise any power to repeal statute. Judicial legislation is subordinate to Parliamentary legislation.

• The exercise of authority by Parliament is controlled by two limitations.

  1. External limits. Statutes are not powerful if the subjects disobey or resist the laws.

  2. Internal limits. Power is exercised by Parliament under the circumstances in which they live. Law is the product of social conditions, determined by whatever determines society.

• The check on power comes from Parliament itself. Constraints are limits of the society and not legal limits. Society will not tolerate an abuse of power.

• Critiques: Dicey runs the risk of an elective dictatorship (Walker) and his critique is an attack on positivism saying that a satisfactory account of law must go beyond compliance with the purely formal rules for making law (Alans)

Geoffrey de Q Walker, Dicey’s dubious dogma of Parliamentary sovereignty (1985):

• In Dicey’s theory, Parliament had absolute power and no one could set Acts aside even if they trampled the Constitution, customs or moral values of people.

• His argument was floored. It was only supported by statutes never tested in court, references to Blackstone’s writing and the rejection of morality and international law.

• According to him, our Constitution led to an elective dictatorship.

Jeffrey Goldsworthy, The sovereignty of Parliament: history and philosophy (1999):

• The doctrine of Parliamentary sovereignty was not Dicey’s dogma but that of the political nation as a whole.

• The doctrine of Parliamentary sovereignty was accepted because there was the idea that an ultimate law making power was needed, with the consent of Parliament the king had absolute power to make law, Parliament was the land’s highest court, Parliament needed to make extraordinary measures to protect people in emergencies, new generations whould change law through their representation in Parliament, Parliament’s decisions reflected community collective wisdom, the king, Lords and Commons would check and balance each other, judges could not be trusted to nullify Parliamentary judgment and limiting Parliament’s power would have worse consequences than curing tyranny.

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TRS Allan, Law, liberty and justice: The legal foundations of British Constitution (1993):

• It is impossible for Dicey to reconcile an emphasis on the rule of law with the unlimited sovereignty of Parliament and the two notions are radically inconsistent.

• Parliamentary sovereignty is intricately linked to representative democracy and cannot be exercised in an undemocratic manner. A statute that threatened the central tenets of our democracy could not come from the doctrine of sovereignty.

AV Dicey On the Rule of Law (1885):

• Since Norman conquest there has been an authority with undisputed supremacy over the country. It used to be the crown but now the sovereignty has passed to Parliament.

• Today all persons are subject to the same law. The Constitution and Judicial decisions determine out rights.

• Rule of law has three meanings:

  1. Absolute supremacy of regular law as opposed to the influence of arbitrary power. All English can be punished for a breach of the law.

  2. Equality before the law. All officials must abide by the law with no exceptions. They are not dealt with differently.

  3. The Constitution is not the source but the consequence of the rights of individuals enforced by the courts. The rights of individuals are secured through Parliament and the Common law- this is inherent in the operation of the system and does not need to be grafted by a codified statement of rights.

• Critique: He argues a bill of rights is not needed because rights are inherently protected in the Westminster and common law system. But history does not show an inherent respect for rights. Also he is too unconcerned with the actual content of law and focuses his attention of the institutions in the system instead.

WI Jennings, the law and the Constitution (1959):

• Dicey claim that arbitrary power has been tamed by the law ignores the large amount of discretion actually exercised in the legal system.

• He ignores the issue of limits on power. His definition of the rule of law is too narrow and formulistic.

• The rule of law refers to law and order. It is a recognised principle but the degree of obedience differs between countries.

• A liberal tradition developed where people wanted a strong and powerful state. They do not want the burden of rulers prepared to...