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Parliamentary Sovereignty Notes

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A more recent version of these Parliamentary Sovereignty notes – written by Oxford students – is available here.

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Parliamentary Sovereignty Should Parliament be sovereign?

In theory Parliament can enact any sort of unjust law it wants. Political constitutionalists would argue that such moves would be met by extreme civil disobedience and so Parliament would not act like that. Legal constitutionalists believe the court needs to prevent the legislature from acting like this.

Legal constitutionalism allows for a tyranny of the majority argument to be presented. This is inherently undemocratic, but thoroughly important!
We rely on the majority to have a moral code, but if they do not then should someone intervene?

Note that the judiciary in other countries are very political.

Parliamentary Sovereignty

Parliament is legally sovereign. Parliament can make and unmake any law that it so wishes - in theory. On the flip side, nobody can legally ignore an Act of Parliament (Dicey defined it in the positive and negative).

Can Parliament bind its successors? This is the big question, raised by HLA Hart. Parliamentary sovereignty as a constitutional fixture

Parliament can always repeal a previous Act. They can do so through express or implied appeal. Any legal provision that an Act cannot be repealed is without legal effect. o Express - they say they're repealing the Act o Implied - they legislate on something already legislated on. The new legislation supersedes the old. Doctrine endorsed in Ellen Street Estates v Minister of Health. The continuing theory

Adheres to Dicey's view. Parliament can make or unmake any law, nor can it bind its successors.

Sovereignty is either continuing - a kind that cannot be undone - or self-embracing, in which case Parliament can surely undo its own sovereignty by altering the rule of recognition as we see it in the UK (put forward by Hart).

Wade argues for continuing sovereignty: o Parliament's power was acquired during the Glorious Revolution in 1688, after Parliament had been fighting with the monarch for constitutional primacy. The monarch and the courts agreed that they

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