The Doctrine of Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy

by Michael Gordon

Overview

In the UK, the status of the doctrine of parliamentary sovereignty in the country's contemporary Constitution is much contested. Changes in the architecture of the UK Constitution, diminishing academic reverence for the doctrine, and a more expansive vision of the judicial role all present challenges to the relevance, coherence, and desirability of this constitutional fundamental. At a time when the future of the sovereignty of Parliament may look less than assured, this book develops an account of the continuing significance of the doctrine. It argues that a rejuvenation of the manner and form theory is required to understand the present status of parliamentary sovereignty. Addressing the critical challenges to the doctrine, it contends that this conception of legally unlimited legislative power provides the best explanation of contemporary developments in UK constitutional practice, while also possessing a normative appeal that has previously been unrecognized. This modern shift to the manner and form theory is located in an account of the democratic virtue of parliamentary sovereignty, with the book seeking to demonstrate the potential that exists for Parliament - through legislating about the legislative process - to revitalize the UK's political Constitution. (Series: Hart Studies in Constitutional Law) [Subject: Constitutional Law, Administrative Law, Politics]

Product Details

ISBN-13:	9781849464659
Publisher:	Hart Publishing UK
Publication date:	02/28/2015
Series:	Hart Studies in Constitutional Law
Pages:	262
Product dimensions:	6.40(w) x 9.20(h) x 1.10(d)

Table of Contents

Acknowledgements vii

Summary Table of Contents ix

Introduction 1

Part I What is the Sovereignty of Parliament?

1 The Function and the Virtue of Parliamentary Sovereignty 13

I Introduction 13

II Challenging the Sovereignty of Parliament 16

III The Function of Parliamentary Sovereignty 21

IV The Virtue of Parliamentary Sovereignty 32

V Conclusion 55

2 The Manner and Form Theory of Parliamentary Sovereignty 57

I Introduction 57

II Development and Definition of the Manner and Form Theory 59

III Objections to the Manner and Form Theory 75

IV Conclusion 107

Part II Understanding Modern Challenges to the Sovereignty of Parliament

3 The Non-Critical Challenges: Devolution, the Human Rights Act and Common Law Constitutionalism 111

I Introduction 111

II Devolution 114

III The Human Rights Act 120

IV Common Law Constitutionalism 126

V Conclusion 149

4 UK Membership of the European Union 151

I Introduction 151

II Parliamentary Sovereignty v EU Supremacy(?) 152

III A European Revolution? 154

IV A Constructionist Alternative 159

V The Challenge of Thobum 164

VI 'Continuing' Parliamentary Sovereignty Preserved? 169

VII Justifying a Manner and Form Understanding of the ECA 177

VIII Thoburn's Shadow 183

IX Conclusion 191

5 Jackson 193

I Introduction 193

II Jackson: Two Diceyan Difficulties 194

III The Common Law Constitutionalist Reading of Jackson 201

IV Jackson as a Development of the Principle of Legality? 206

V Minimalist Interpretations of Jackson 217

VI Implications of a Manner and Form Reading of Jackson 224

VII Jackson's Aftermath: Axa 230

VIII Conclusion 236

6 The European Union Act 2011 239

I Introduction 239

II The Nature of the European Union Act 2011 240

III Contradictory Messages on Sovereignty? 246

IV Legal Effectiveness of the Referendum Locks 250

V Constitutional Effect of the European Union Act 2011 264

VI Conclusion 277

Part III The Virtue and the Function of the Manner and Form Theory

7 A Democratic Justification of the Manner and Form Theory 283

I Introduction 283

II The Need for a Normative Justification of the Manner and Form Theory 284

III Democracy, Political Constitutionalism and Parliamentary Sovereignty 293

IV A Democratic Justification of the Manner and Form Theory 302

V A Potential Contradiction: Process, Politics and Democracy… and the Courts? 317

VI Conclusion 321

8 The Potential Utility of the Manner and Form Theory 323

I Introduction 323

II The State of the UK's Political Constitution 325

III Using the Manner and Form Theory Democratically 330

IV Manner and Form and Constitutional Reform 336

V The Seeds of Destruction? Legally Unlimited Legislative Power and Parliamentary Sovereignty 352

VI Conclusion 356

Index 359