Hi, looking at an essay question which is for a week or so away but decided to battle through and get a start.
This is the question :
“As a judge I am very conscious of the proper reluctance of the courts to intervene in issues of the validity of Acts of Parliament. I should be most unwilling to decide this or any other case in a way which would endanger that tradition of mutual respect.”
(R (Jackson) v. Attorney General  UKHL 56, , per Lord Carswell)
Explain whether, given this statement by Lord Carswell, we may properly conclude that the judiciary pose no threat to the principle of Parliamentary Sovereignty.
The main problem which I have is structure and whether or not I have missed anything important out.
The Plan so far is:
Origins of Parliamentary Sovereignty-basically stating the obvious
Meaning of- Blackstone,Dicey positive/negative rules
Evdidence of- jurisprudence, Dr Bonham's case etc
Distinction between legal and political sovereignty- internal/external limits
Courts and PS
Boundaries-limited to statutes, express/implied repeal, enrolled bill rule
What can Sov. Parliament do- freedom to make any kind of law, cannot be overridden, legislate for any place,
Cant bind Successors- dead hand,types of limitation
Problem raised in Jackson
....and Conclude referencing back to Q.
I think i will base the entire discussion around the case of Jackson and refer back to the points of law as they arise in the case?
Now feel more confused now that I have written this out than I did previously...
ANY COMMENTS APPRECIATED, thanks in advance
Public Law Essay Help Watch
- Thread Starter
- 05-12-2010 12:42
- 05-12-2010 15:56
I think perhaps you should mention that the quote they have given you actually gives you the answer. I would split the quote into sections and discuss them in turn.
e.g. "as a judge" - that the concept of PS is surely different depending on who is viewing it. That Parliament thinks it supreme, but the word "reluctance" destroys that idea from a legal view point; implying that the courts can and will intervene when necessary.
And you could have a field day on the "tradition" element of the quote...
- 05-12-2010 19:08
Your answer seems to be an outline about parliamentary sovereignty. What you need to do is answer the question: Do the courts pose a threat to the principle of parliamentary sovereignty? You then need to explain why. You need to figure out whether they do, or do not, pose a threat. The points you outline go towards that, but every sentence in your answer should be tailored to the specific question.
Bear in mind, also, that Carswell is but one judge and others might disagree with him. In particular, look at the obiter dicta in Jackson that deal with whether a court could under other circumstances overrule an Act of Parliament. (See esp. Lord Steyn at , and Lord Brown , but cf Baroness Hale .
You also ought to consider Factortame, the ECA 1972, and Thoburn. Does a judicial application of EU legislation, and the disapplication of an Act of Parliament, count as a threat to parliamentary sovereignty? Is it a threat form the judiciary, or from somewhere else?
Focus your outline on the specific question, not on trying to say everything you know about parliamentary sovereignty. Pick a side, and make a strong argument for it. Explain why the alternative side is wrong.