#14670 - Principles Of Constitutional Law - GDL Constitutional and Administrative Law

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Basic theories of democratic society

• Rousseau:

  • “Man is born free, but he is everywhere in chains”

  • Physical freedom relinquished for civil freedom – the ‘sovereign’ as the collective with single, general will that aims for common good

  • The sovereign is legislative, the executive needed to administer – these two are in constant friction

  • Political legitimacy comes from social contracts

  • The sovereign should practice direct democracy through general assemblies

• Locke:

  • Democracy as a contract.

  • No divine right of Kings.

  • The State of Nature was complete liberty – though pre-political it was not pre-moral (natural law – everyone is equal)

  • Men sought civil government for the protection of property. In making the social contract, they have consented to be ruled by the will of the majority. They gain laws, judges & the executive to enforce laws, and can no longer take justice into their own hands.

  • Tyranny is a ruler reverting to the State of Nature & collapses the compact (separated powers) meaning self-defence is permissible again

• Hobbes: submission to an absolute authority to escape the horror of the State of Nature

Strengthening democratic rule:

• Mueinik: “bridge away from a culture of authority...to a culture of justification”

• Jennings: Parliamentary sovereignty is fettered by the political reality that they must serve the public if they wish for re-election

• Bill of Rights 1686: reorganised the constitutional balance in favour of democratic Parliament and took it away from the “pretended power” of the executive Crown (NB: now largely repealed)

• Parliament Acts 1911 & 1949: stripped Lords’ right to veto

• House of Lords Act 1999: removed majority of hereditary Peers

Parliamentary sovereignty

Edinburgh & Dalkeith Railway v Wauchope

Private Act for benefit of railway passed without notice as required by Standing Orders

Held: the court was not able to comment as the enrolled bill rule stipulates that a court must defer to Parliament once an Act has been passed

• Lord Campbell: “look to the Parliamentary roll...no court of justice can inquire into the manner in which it was introduced into Parliament”

Duport Steels: plain and unambiguous statutory wording must be accepted by the courts

• Lord Diplock: if judicial power were “judge’s sense of what is right...society will then be ready for Parliament to cut the power of the judges”

Pickin v British Railway Board

C bought some disused railway land which contained railway line that, by virtue of statute, reverted back to adjoining landowners. The railway however claimed ownership under a private Act which cancelled the reversion clause. C sought declaration that the railway Board had mislead Parliament & their standing orders had not been complied with

Held: the court is not entitled to disregard an Act of Parliament or investigate its validity

Separation of Powers

• Montesquieu: “government should be set up so that no man need be afraid of another”.

  • The separation of powers & functions was in response to the feudalistic Estates structure in France, which represented classes of people.

  • He felt nobility in...