R. A. W. Rhodes, John Wanna, and Patrick Weller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199563494
- eISBN:
- 9780191722721
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199563494.003.0007
- Subject:
- Political Science, Comparative Politics, UK Politics
This chapter explores the dilemmas facing parliaments, especially their relations with the executive, and the changing patterns of representation. It focuses on five topics: the limits to ...
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This chapter explores the dilemmas facing parliaments, especially their relations with the executive, and the changing patterns of representation. It focuses on five topics: the limits to parliamentary sovereignty, scrutiny of the executive; the role of the opposition; changing patterns of representation; and the impact of territorial representation, notably federalism. There is a recurrent dilemma between whether parliament has fallen into decline with the rise of party government or whether it is better seen as a ‘theatre of action’, located in a web of political actors, not just elected representatives. Although parliaments have been shaped by party discipline and had their unqualified sovereignty challenged by rival sources of power, they remain central to responsible and representative government in Westminster.Less
This chapter explores the dilemmas facing parliaments, especially their relations with the executive, and the changing patterns of representation. It focuses on five topics: the limits to parliamentary sovereignty, scrutiny of the executive; the role of the opposition; changing patterns of representation; and the impact of territorial representation, notably federalism. There is a recurrent dilemma between whether parliament has fallen into decline with the rise of party government or whether it is better seen as a ‘theatre of action’, located in a web of political actors, not just elected representatives. Although parliaments have been shaped by party discipline and had their unqualified sovereignty challenged by rival sources of power, they remain central to responsible and representative government in Westminster.
Richard Rawlings, Peter Leyland, and Alison Young (eds)
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199684069
- eISBN:
- 9780191765865
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199684069.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Philosophy of Law
Sovereignty is a topic which is both of enduring interest and often hotly contested in the literature. This collection of essays builds on contemporary debates by taking up and exploring the ...
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Sovereignty is a topic which is both of enduring interest and often hotly contested in the literature. This collection of essays builds on contemporary debates by taking up and exploring the theoretical and practical implications of current challenges to established doctrines at domestic, European, and international level. Sovereignty is therefore approached in a non-compartmentalized way, so viewing it as neither a purely domestic/internal concept nor a wholly international/external one.Grounded firmly in the disciplines of law, the collection explores the twin elements of continuity and change in conceptions of sovereignty in recent times. Individual chapters, by leading writers, examine a series of cross cutting themes including: whether sovereignty is in transition, has been revised, or has remained the same; contemporary challenges to the distinctive constitutional tradition of Parliamentary sovereignty; territorial government and popular sovereignty; sovereignty, constitutional dialogue, and human rights; judicial capacities to place new constraints on sovereign power; contested conceptions of sovereignty issues in the EU; jurisdictional limits placed on sovereignty as part of the international order; the concept of territorial extension as a challenge to territorial sovereignty; and transnational challenges to states from multi-national enterprise and the global revolution in communications. At a time of very great testing of the institutional frameworks at every level, the book illuminates the enduring strength of sovereignty as a foundational concept and the continuing widespread appeal of sovereignty as an idea.Less
Sovereignty is a topic which is both of enduring interest and often hotly contested in the literature. This collection of essays builds on contemporary debates by taking up and exploring the theoretical and practical implications of current challenges to established doctrines at domestic, European, and international level. Sovereignty is therefore approached in a non-compartmentalized way, so viewing it as neither a purely domestic/internal concept nor a wholly international/external one.Grounded firmly in the disciplines of law, the collection explores the twin elements of continuity and change in conceptions of sovereignty in recent times. Individual chapters, by leading writers, examine a series of cross cutting themes including: whether sovereignty is in transition, has been revised, or has remained the same; contemporary challenges to the distinctive constitutional tradition of Parliamentary sovereignty; territorial government and popular sovereignty; sovereignty, constitutional dialogue, and human rights; judicial capacities to place new constraints on sovereign power; contested conceptions of sovereignty issues in the EU; jurisdictional limits placed on sovereignty as part of the international order; the concept of territorial extension as a challenge to territorial sovereignty; and transnational challenges to states from multi-national enterprise and the global revolution in communications. At a time of very great testing of the institutional frameworks at every level, the book illuminates the enduring strength of sovereignty as a foundational concept and the continuing widespread appeal of sovereignty as an idea.
Iain Mclean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0007
- Subject:
- Political Science, Comparative Politics, UK Politics
Dicey's abandonment of parliamentary sovereignty and the rule of law. His partial rediscovery of them 1920.
Dicey's abandonment of parliamentary sovereignty and the rule of law. His partial rediscovery of them 1920.
Thomas Saalfeld
- Published in print:
- 2003
- Published Online:
- January 2005
- ISBN:
- 9780198297840
- eISBN:
- 9780191602016
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019829784X.003.0021
- Subject:
- Political Science, Comparative Politics
The ‘core’ of the Westminster chain of democratic delegation and accountability has remained tremendously stable in a country whose economic and political institutions have undergone considerable ...
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The ‘core’ of the Westminster chain of democratic delegation and accountability has remained tremendously stable in a country whose economic and political institutions have undergone considerable change since 1979. As a result of the electoral system, the voters’ aggregate choice, mediated by disciplined political parties, continues to have a very direct impact on the selection of the government of the day. Normatively, this may justify the fact that government, as the agent of Parliament and the electorate, faces few domestic political constraints. However, outside the core of the chain, British government has witnessed major changes in voting behaviour, the nature of government, and executive accountability.Less
The ‘core’ of the Westminster chain of democratic delegation and accountability has remained tremendously stable in a country whose economic and political institutions have undergone considerable change since 1979. As a result of the electoral system, the voters’ aggregate choice, mediated by disciplined political parties, continues to have a very direct impact on the selection of the government of the day. Normatively, this may justify the fact that government, as the agent of Parliament and the electorate, faces few domestic political constraints. However, outside the core of the chain, British government has witnessed major changes in voting behaviour, the nature of government, and executive accountability.
Brendan O'Leary
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199244348
- eISBN:
- 9780191599866
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199244340.003.0003
- Subject:
- Political Science, UK Politics
The chapter defends the Northern Ireland Agreement's consociational institutions. It notes that the Agreement also contains federal and confederal institutions covering all of Ireland and linking ...
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The chapter defends the Northern Ireland Agreement's consociational institutions. It notes that the Agreement also contains federal and confederal institutions covering all of Ireland and linking Ireland with Britain, and argues that both the internal and external dimensions were necessary parts of a durable settlement given the identities and aspirations of nationalists and unionists. The chapter stresses, in contrast to positions taken by Arend Lijphart and Donald Horowitz, the advantages of the particular proportional electoral system used in Northern Ireland. It also points to the dangers that Britain's tradition of parliamentary sovereignty poses to stable agreements between Britain and Ireland. Northern Ireland, the author argues, could and should have become a federacy as well as having consociational governance.Less
The chapter defends the Northern Ireland Agreement's consociational institutions. It notes that the Agreement also contains federal and confederal institutions covering all of Ireland and linking Ireland with Britain, and argues that both the internal and external dimensions were necessary parts of a durable settlement given the identities and aspirations of nationalists and unionists. The chapter stresses, in contrast to positions taken by Arend Lijphart and Donald Horowitz, the advantages of the particular proportional electoral system used in Northern Ireland. It also points to the dangers that Britain's tradition of parliamentary sovereignty poses to stable agreements between Britain and Ireland. Northern Ireland, the author argues, could and should have become a federacy as well as having consociational governance.
Iain Mclean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0015
- Subject:
- Political Science, Comparative Politics, UK Politics
Summary of previous discussion. Can Diceyanism be revived without Dicey? The case for Parliamentary sovereignty—but that must entail an elected Parliament. The case for counter‐majoritarianism. ...
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Summary of previous discussion. Can Diceyanism be revived without Dicey? The case for Parliamentary sovereignty—but that must entail an elected Parliament. The case for counter‐majoritarianism. Strong entrenchment of EU law. Justified on pragmatic, not democratic, grounds. EU polices supranational public goods and bads, and therefore needs some supranational powers. Weak entrenchment of human rights law: the model for entrenchment of other constitutional laws. What is a constitutional statute?—the list in Thoburn. Discrete and insular minorities. Origin of the phrase in the United States; its applicability in United Kingdom. Comity between courts and parliament. How we the people of the United Republic might ordain to ourselves a constitution.Less
Summary of previous discussion. Can Diceyanism be revived without Dicey? The case for Parliamentary sovereignty—but that must entail an elected Parliament. The case for counter‐majoritarianism. Strong entrenchment of EU law. Justified on pragmatic, not democratic, grounds. EU polices supranational public goods and bads, and therefore needs some supranational powers. Weak entrenchment of human rights law: the model for entrenchment of other constitutional laws. What is a constitutional statute?—the list in Thoburn. Discrete and insular minorities. Origin of the phrase in the United States; its applicability in United Kingdom. Comity between courts and parliament. How we the people of the United Republic might ordain to ourselves a constitution.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0001
- Subject:
- Political Science, Comparative Politics, UK Politics
The context of the problem. Doctrine of parliamentary sovereignty defined by A. V. Dicey. But Dicey did not believe in it when he really disapproved of something Parliament had done. The Scottish ...
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The context of the problem. Doctrine of parliamentary sovereignty defined by A. V. Dicey. But Dicey did not believe in it when he really disapproved of something Parliament had done. The Scottish problem: 1707 was a treaty not a takeover. Public lawyers' and political scientists' approaches are contrasted.Less
The context of the problem. Doctrine of parliamentary sovereignty defined by A. V. Dicey. But Dicey did not believe in it when he really disapproved of something Parliament had done. The Scottish problem: 1707 was a treaty not a takeover. Public lawyers' and political scientists' approaches are contrasted.
Anthony Clarke and John Sorabji
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0003
- Subject:
- Law, Legal History
This chapter deals with the Constitutional Reform Act 2005 and how it reformed the office of Lord Chancellor, removing both the Lord Chancellor's judicial role and his role as Speaker of the House of ...
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This chapter deals with the Constitutional Reform Act 2005 and how it reformed the office of Lord Chancellor, removing both the Lord Chancellor's judicial role and his role as Speaker of the House of Lords. It created an independent Judicial Appointments Commission, and provided for the introduction of the formal legal, as opposed to constitutional, separation of the judicial and legislative functions of the House of Lords. The chapter analyses the further impact of these reform in changing the UK constitutional framework.Less
This chapter deals with the Constitutional Reform Act 2005 and how it reformed the office of Lord Chancellor, removing both the Lord Chancellor's judicial role and his role as Speaker of the House of Lords. It created an independent Judicial Appointments Commission, and provided for the introduction of the formal legal, as opposed to constitutional, separation of the judicial and legislative functions of the House of Lords. The chapter analyses the further impact of these reform in changing the UK constitutional framework.
Paul Seaward and Paul Silk
- Published in print:
- 2004
- Published Online:
- January 2012
- ISBN:
- 9780197263198
- eISBN:
- 9780191734755
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197263198.003.0005
- Subject:
- Political Science, UK Politics
This chapter examines the history of the House of Commons in Great Britain, discussing the nineteenth- and twentieth-century legacy of the House of Commons. It reveals that, by the end of the ...
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This chapter examines the history of the House of Commons in Great Britain, discussing the nineteenth- and twentieth-century legacy of the House of Commons. It reveals that, by the end of the twentieth century, the prestige and pre-eminence which Parliament possessed at its beginning was clearly no more. The first signs of a retreat from the principle of parliamentary sovereignty was the passage of the European Communities Act and the Factortame case.Less
This chapter examines the history of the House of Commons in Great Britain, discussing the nineteenth- and twentieth-century legacy of the House of Commons. It reveals that, by the end of the twentieth century, the prestige and pre-eminence which Parliament possessed at its beginning was clearly no more. The first signs of a retreat from the principle of parliamentary sovereignty was the passage of the European Communities Act and the Factortame case.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.001.0001
- Subject:
- Political Science, Comparative Politics, UK Politics
In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both ...
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In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both how people actually behave and how they ought to behave. In fact, it fails to do either; it is not a correct description and it has no persuasive force. The book goes on to offer a reasoned alternative. The position that still dominates the field of constitutional law is that of parliamentary sovereignty (or supremacy). According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: monarch, Lords, and Commons. The people elect only one of those three houses. This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. V. Dicey has little to offer those who really want to understand the nature of the constitution. Instead, greater understanding can be gleaned from considering the ‘veto plays’ and ‘credible threats’ available to politicians since 1707. He suggests that the idea the people are sovereign dates back to the seventeenth century (may be fourteenth century in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since 1972, and perhaps since 1920. He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church. This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like.Less
In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both how people actually behave and how they ought to behave. In fact, it fails to do either; it is not a correct description and it has no persuasive force. The book goes on to offer a reasoned alternative. The position that still dominates the field of constitutional law is that of parliamentary sovereignty (or supremacy). According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: monarch, Lords, and Commons. The people elect only one of those three houses. This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. V. Dicey has little to offer those who really want to understand the nature of the constitution. Instead, greater understanding can be gleaned from considering the ‘veto plays’ and ‘credible threats’ available to politicians since 1707. He suggests that the idea the people are sovereign dates back to the seventeenth century (may be fourteenth century in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since 1972, and perhaps since 1920. He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church. This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like.
Iain Mclean and Alistair McMillan
- Published in print:
- 2005
- Published Online:
- February 2006
- ISBN:
- 9780199258208
- eISBN:
- 9780191603334
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199258201.003.0011
- Subject:
- Political Science, UK Politics
This chapter discusses the policy implications of the weakening of Unionism. It considers the pressures on the Conservatives (historically the principled Unionist party, but whose advantage is now ...
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This chapter discusses the policy implications of the weakening of Unionism. It considers the pressures on the Conservatives (historically the principled Unionist party, but whose advantage is now served by such centrifugal factors as the advantage of having PR elections in the devolved territories), and on Labour (historically the party that has needed the Union for its centralist social policy, but which no longer needs Scottish and Welsh seats as much as it did); the fragility of union without unionism. It raises the question of whether Parliament or the people is sovereign.Less
This chapter discusses the policy implications of the weakening of Unionism. It considers the pressures on the Conservatives (historically the principled Unionist party, but whose advantage is now served by such centrifugal factors as the advantage of having PR elections in the devolved territories), and on Labour (historically the party that has needed the Union for its centralist social policy, but which no longer needs Scottish and Welsh seats as much as it did); the fragility of union without unionism. It raises the question of whether Parliament or the people is sovereign.
Akash Paun
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780197266465
- eISBN:
- 9780191879609
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197266465.003.0003
- Subject:
- Political Science, UK Politics
This chapter argues that the UK territorial constitution rests upon a profound ambiguity about its central principles. Parliamentary sovereignty remains at the core of how the English understand ...
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This chapter argues that the UK territorial constitution rests upon a profound ambiguity about its central principles. Parliamentary sovereignty remains at the core of how the English understand their constitution. Yet in Scotland, Wales and Northern Ireland, alternative doctrines have flourished, especially since devolution, which conceded the right of each nation to determine its own form of government (popular sovereignty) and established a non-majoritarian system of power-sharing and cross-border governance in (Northern) Ireland. These developments imply that the UK is a voluntary ‘family of nations’ not a unitary state. Yet Westminster has never formally conceded this point and devolution could in theory be reversed by a simple parliamentary majority. Constructive ambiguity has been retained. However, the historic tendency to allow constitutional theory and practice to diverge may be unsustainable in the light of the EU referendum result and the wider mood of English political disaffection that Brexit has tapped into.Less
This chapter argues that the UK territorial constitution rests upon a profound ambiguity about its central principles. Parliamentary sovereignty remains at the core of how the English understand their constitution. Yet in Scotland, Wales and Northern Ireland, alternative doctrines have flourished, especially since devolution, which conceded the right of each nation to determine its own form of government (popular sovereignty) and established a non-majoritarian system of power-sharing and cross-border governance in (Northern) Ireland. These developments imply that the UK is a voluntary ‘family of nations’ not a unitary state. Yet Westminster has never formally conceded this point and devolution could in theory be reversed by a simple parliamentary majority. Constructive ambiguity has been retained. However, the historic tendency to allow constitutional theory and practice to diverge may be unsustainable in the light of the EU referendum result and the wider mood of English political disaffection that Brexit has tapped into.
Alec Stone Sweet
- Published in print:
- 2000
- Published Online:
- April 2004
- ISBN:
- 9780198297710
- eISBN:
- 9780191601095
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297718.001.0001
- Subject:
- Political Science, Comparative Politics
Advances the thesis that legislative processes are increasingly influenced by constitutional judges and the discursive practices of constitutional adjudication. Parallel to this process, the ordinary ...
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Advances the thesis that legislative processes are increasingly influenced by constitutional judges and the discursive practices of constitutional adjudication. Parallel to this process, the ordinary judiciary has been carving out wide‐ranging powers of judicial review for itself, seeking to alter statutes deemed unconstitutional. As Stone Sweet argues forcefully, these phenomena have combined to undermine parliamentary sovereignty and to transform the very nature of European government and society. These arguments are illustrated by the detailed comparative examination of five pivotal cases: France, Germany, Italy, Spain, and the EU.The discussion of the immediate subject matter takes place, embedded into a wider set of concerns: what are the sources and consequences of judicial power? Why is judicial rule making often basic to institutionalization and political change? Already a classic in the ongoing debate about constitutional politics, this book offers important contributions to the literature on new institutionalism, rational choice theory, and the new constitutionalism in Continental legal theory.Less
Advances the thesis that legislative processes are increasingly influenced by constitutional judges and the discursive practices of constitutional adjudication. Parallel to this process, the ordinary judiciary has been carving out wide‐ranging powers of judicial review for itself, seeking to alter statutes deemed unconstitutional. As Stone Sweet argues forcefully, these phenomena have combined to undermine parliamentary sovereignty and to transform the very nature of European government and society. These arguments are illustrated by the detailed comparative examination of five pivotal cases: France, Germany, Italy, Spain, and the EU.
The discussion of the immediate subject matter takes place, embedded into a wider set of concerns: what are the sources and consequences of judicial power? Why is judicial rule making often basic to institutionalization and political change? Already a classic in the ongoing debate about constitutional politics, this book offers important contributions to the literature on new institutionalism, rational choice theory, and the new constitutionalism in Continental legal theory.
Simon Evans and Julia Watson
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0010
- Subject:
- Law, Human Rights and Immigration
This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, ...
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This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.Less
This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.
Jeffrey Goldsworthy
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199248087
- eISBN:
- 9780191705199
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199248087.003.0010
- Subject:
- Law, Constitutional and Administrative Law
This chapter shows that the philosophical criticisms against parliamentary sovereignty are based on a defective understanding of the foundations of legal systems, and consequently of the relationship ...
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This chapter shows that the philosophical criticisms against parliamentary sovereignty are based on a defective understanding of the foundations of legal systems, and consequently of the relationship between parliamentary authority and the common law. It defends the orthodox understanding that the doctrine of parliamentary sovereignty is currently part of the constitutional law of the UK, Australia, and New Zealand. If it were not, there would be no need to debate the merits of a Bill of Rights: judges would already have authority to invalidate legislation they regard as inconsistent with fundamental rights.Less
This chapter shows that the philosophical criticisms against parliamentary sovereignty are based on a defective understanding of the foundations of legal systems, and consequently of the relationship between parliamentary authority and the common law. It defends the orthodox understanding that the doctrine of parliamentary sovereignty is currently part of the constitutional law of the UK, Australia, and New Zealand. If it were not, there would be no need to debate the merits of a Bill of Rights: judges would already have authority to invalidate legislation they regard as inconsistent with fundamental rights.
Iain Mclean and Alistair McMillan
- Published in print:
- 2005
- Published Online:
- February 2006
- ISBN:
- 9780199258208
- eISBN:
- 9780191603334
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199258201.003.0001
- Subject:
- Political Science, UK Politics
The UK is not a unitary state because it depends on two constitutional contracts — the Acts of Union of 1707 and 1800. Therefore, UK Unionism is not like, for instance, French Jacobinism. The 1707 ...
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The UK is not a unitary state because it depends on two constitutional contracts — the Acts of Union of 1707 and 1800. Therefore, UK Unionism is not like, for instance, French Jacobinism. The 1707 Acts are still in force. Although most of Ireland left the UK in 1921, the 1800 Act has profoundly affected UK politics. Northern Ireland is the relic of the 1800 Act. Neither is the UK a federal state. Scotland and Northern Ireland do not have powers comparable to an American or an Australian state. Therefore, UK Unionism is not like Australian anti-federalism. When there have been subordinate parliaments (Northern Ireland 1921-72 and intermittently since 1999; Scotland and Wales since 1999), the supremacy of Westminster has been asserted by statute. There is a severe tension between the Diceyan concept of parliamentary sovereignty. Northern Ireland is a ‘federacy’, i.e., a self-governing unit whose constitution must not be unilaterally altered by the UK government. As England is the overwhelmingly dominant partner in the union state, English scholars, like the English population in general, have often been insensitive to these nuances. It is tempting to see England as simply the colonial oppressor of its three neighbours, getting by force the security or the economic advantage that it could not get by agreement. This picture fits Ireland reasonably well, Wales less well, and Scotland hardly at all. Even Ireland has always contained a substantial proportion of Unionists.Less
The UK is not a unitary state because it depends on two constitutional contracts — the Acts of Union of 1707 and 1800. Therefore, UK Unionism is not like, for instance, French Jacobinism. The 1707 Acts are still in force. Although most of Ireland left the UK in 1921, the 1800 Act has profoundly affected UK politics. Northern Ireland is the relic of the 1800 Act. Neither is the UK a federal state. Scotland and Northern Ireland do not have powers comparable to an American or an Australian state. Therefore, UK Unionism is not like Australian anti-federalism. When there have been subordinate parliaments (Northern Ireland 1921-72 and intermittently since 1999; Scotland and Wales since 1999), the supremacy of Westminster has been asserted by statute. There is a severe tension between the Diceyan concept of parliamentary sovereignty. Northern Ireland is a ‘federacy’, i.e., a self-governing unit whose constitution must not be unilaterally altered by the UK government. As England is the overwhelmingly dominant partner in the union state, English scholars, like the English population in general, have often been insensitive to these nuances. It is tempting to see England as simply the colonial oppressor of its three neighbours, getting by force the security or the economic advantage that it could not get by agreement. This picture fits Ireland reasonably well, Wales less well, and Scotland hardly at all. Even Ireland has always contained a substantial proportion of Unionists.
T.R.S. Allan
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199267880
- eISBN:
- 9780191707728
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199267880.003.0007
- Subject:
- Law, Constitutional and Administrative Law
The rule of law is absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined. The supremacy of the rule of law entails recognition of a ...
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The rule of law is absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined. The supremacy of the rule of law entails recognition of a fundamental division of sovereignty. The common law, which today holds the existence of a free and democratic society as its basic tenet, must be viewed as built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts. This chapter discusses judicial review of administrative action, the moral foundations of H. L. A. Hart's ‘rule of recognition’, the evolution of the rule of recognition citing human rights and European law, and the constitutional limits of parliamentary sovereignty.Less
The rule of law is absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined. The supremacy of the rule of law entails recognition of a fundamental division of sovereignty. The common law, which today holds the existence of a free and democratic society as its basic tenet, must be viewed as built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts. This chapter discusses judicial review of administrative action, the moral foundations of H. L. A. Hart's ‘rule of recognition’, the evolution of the rule of recognition citing human rights and European law, and the constitutional limits of parliamentary sovereignty.
Anthony Mason
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0009
- Subject:
- Law, Human Rights and Immigration
This chapter outlines the measures implemented for the protection for human rights available in New Zealand, Australia, and Hong Kong. It examines the influence of jurisprudence from the United ...
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This chapter outlines the measures implemented for the protection for human rights available in New Zealand, Australia, and Hong Kong. It examines the influence of jurisprudence from the United Kingdom and European Court of Human Rights on those systems, and traces the conditioning effect of the doctrine of legislative supremacy on the development and implementation of rights instruments in New Zealand and Australia.Less
This chapter outlines the measures implemented for the protection for human rights available in New Zealand, Australia, and Hong Kong. It examines the influence of jurisprudence from the United Kingdom and European Court of Human Rights on those systems, and traces the conditioning effect of the doctrine of legislative supremacy on the development and implementation of rights instruments in New Zealand and Australia.
Neil Walker
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199684069
- eISBN:
- 9780191765865
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199684069.003.0002
- Subject:
- Law, Constitutional and Administrative Law, Philosophy of Law
This Chapter argues that much of the contemporary confusion and controversy over the meaning and continuing utility of the concept of sovereignty stems from a failure to distinguish between ...
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This Chapter argues that much of the contemporary confusion and controversy over the meaning and continuing utility of the concept of sovereignty stems from a failure to distinguish between sovereignty as a deep framing device for making sense of the modern legal and political world on the one hand, and the particular claims which are made on behalf of particular institutions, agencies, rules, or other entities to possess sovereign authority on the other. The Chapter begins by providing a basic account of the difference between sovereignty as framing and sovereignty as claiming; it continues by analyzing why and how our understandings and uses of sovereignty have altered in the contemporary wave of globalization; and concludes with thoughts about the distinctive ways in which the evolving state of sovereignty framing and claiming plays out in the specific context of the UK and its external and internal legal and constitutional relations today.Less
This Chapter argues that much of the contemporary confusion and controversy over the meaning and continuing utility of the concept of sovereignty stems from a failure to distinguish between sovereignty as a deep framing device for making sense of the modern legal and political world on the one hand, and the particular claims which are made on behalf of particular institutions, agencies, rules, or other entities to possess sovereign authority on the other. The Chapter begins by providing a basic account of the difference between sovereignty as framing and sovereignty as claiming; it continues by analyzing why and how our understandings and uses of sovereignty have altered in the contemporary wave of globalization; and concludes with thoughts about the distinctive ways in which the evolving state of sovereignty framing and claiming plays out in the specific context of the UK and its external and internal legal and constitutional relations today.
Alison L Young
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199684069
- eISBN:
- 9780191765865
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199684069.003.0005
- Subject:
- Law, Constitutional and Administrative Law, Philosophy of Law
This Chapter investigates whether Parliament should be able to bind its successors as to the manner and form in which it enacts legislation. First, it evaluates the argument of Jeffrey Goldsworthy ...
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This Chapter investigates whether Parliament should be able to bind its successors as to the manner and form in which it enacts legislation. First, it evaluates the argument of Jeffrey Goldsworthy that this should be so, provided that these restrictions do not restrict the substantive law-making powers of Parliament. Secondly, the Chapter provides a normative justification against empowering Parliament to bind its successors and, adopting a different focus to Jeffery Goldsworthy, looks at the extent to which sovereignty entails the ability to determine the sphere of one’s own competences. It is argued that, when understood in this light, it is more descriptively accurate and normatively justifiable to regard sovereignty as shared between Parliament and the courts and that to empower Parliament to bind its successors is normatively undesirable as it could upset the delicate balance of powers in the UK constitution.Less
This Chapter investigates whether Parliament should be able to bind its successors as to the manner and form in which it enacts legislation. First, it evaluates the argument of Jeffrey Goldsworthy that this should be so, provided that these restrictions do not restrict the substantive law-making powers of Parliament. Secondly, the Chapter provides a normative justification against empowering Parliament to bind its successors and, adopting a different focus to Jeffery Goldsworthy, looks at the extent to which sovereignty entails the ability to determine the sphere of one’s own competences. It is argued that, when understood in this light, it is more descriptively accurate and normatively justifiable to regard sovereignty as shared between Parliament and the courts and that to empower Parliament to bind its successors is normatively undesirable as it could upset the delicate balance of powers in the UK constitution.
