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Published: Fri, 02 Feb 2018
The doctrine of parliament sovereignty
Vernon Bogdanor recognizes a constitution as,
‘A code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and defines the relationship between these and the public’
Parliamentary sovereignty means “more or less, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament”
Post civil war, glorious revolution, bill of rights……………….
It is said that the Britain’s have an unwritten constitution, because unlike the constitution in America, south Africa or the proposed European constitution, it is referred to as an uncodified constitution in the sense that there is no single document that can be classed as Britain’s constitution.
In all states with a written constitution there has been a clear historical break with the past and a fresh constitutional start for example American war of independence, French revolution and the independence of the colonies. The absence of such a break in continuity in the British history explains the largely unwritten nature of the British constitution which is the result of a largely slow and peaceful process of evolution.
The constitution can be classified according to……………..
The written constitution is one contained within a single document or a single document or code. Defining the basic rule of state example united states of America it is the ultimate source legal authority, all actions of government and the legislature must conform to it, and any controvert will be both unconstitutional and unlawful. There is a supreme court to uphold and interpret constitution.
In uk the power is concentrated in the central government and this is known as unitary constitutions, the uk parliament at Westminster has ultimate law making power over all the constituent nations. Though some powers are devolved to Northern Ireland Scotland Wales and local government these powers remain subject to united kingdom parliaments ultimate control and can be withdrawn thereby as there is no written down constitution in the uk defining an controlling these powers , thus the uk parliament is sovereign. Where in federal states constitution, as per like in Australia, South Africa and sri lanka thus in federal states the written constitution is sovereign and their respective powers are defined and controlled by the constitution.
The sovereignty or supremacy of Parliament is the domain characteristic of the united kingdom constitution. The concept of parliament sovereignty was emerged as a result of the struggle between the king and the parliament, The bill of 1689 established the supremacy of parliament over the crown this concept was called the ‘ the constitutional monarch’ that is the monarch is only a symbol. Under the sovereignty there are two main authorities named legal and political sovereignty. Political theorists such as Thomas Hobbes, Rousseau, Thomas Paine.
Parliament can legislate in any matter where there are no limitations which mean that the courts cannot declare it as null and void. In the past Queen was the main legislative authority and was able to pass any law. This was known as the Queen in Parliament.
And also the concept that the parliament does not misuse its powers as a result of the conventions, but there is no hard and fast rule stating in the positive. Consequently, it is possible that the legislature might overlook this fact and use its powers in an unauthorised manner. Though this might be probable, its presumed that the parliament would not do so basically owing to the existence of the conventions
The statutes created by the legislature is said to be non- justifiable as they cannot be challenged in courts which was established in pickin v British Railways Broad. Further aspects of this doctrine is that the parliament cannot bind its successors as it was stated by Maugham LJ in Ellen street Estates v The minister of health,
Parliament may make any law that it wishes but independence of the judiciary is presented by Constitution Reform Act 2005, separation of powers should be exercised to separate powers and Rule of Law provides that no rule is above the law and that everyone must act according to the law.
The case of Queen v Liyanage and the others can be taken as a hypothetical example to illustrate the Parliaments unlimited legislative powers. This case originated from Ceylon, whereby a group of individuals – identified as Liyanage and the others, planned to overthrow the government headed by the monarchy. This fell into the ears of the government which led to their arrest. Thus, the government legislated retrospectively with the intention of convicting them. Subsequently, after their conviction, an appeal was made to the Privy Council who in turn acquitted them as they held the laws created by the Parliament to be null and void because the situation was such that the Ceylon government cannot legislate retrospectively. The important point to notice is that, had the same circumstances arisen in England, amendments or even further legislation made by the Parliament would be legal in view of the unlimited nature of Parliamentary sovereignty. Yet the Liyanage decision is a good example of Parliamentary use of its powers in an unacceptable manner which violates the fundamental principles of law. Such an exercise is perfectly legal in England though declared unconstitutional in Ceylon.
And also in the case of In the case of Gillian and Quilton v uk the two appellants applied to the house of lord in breach of their rights under the articles 5,8,10,11 of the human rights the house of loads dismissed their appeal and held that the police acted on authority under section 44 of the terrorism act, the appellants further took their case to the European court of justice, there the European court of justice held the section 44 of thr terrorism act was violated article 8 of human rights. Therefore the section 44 was not an adequate protection and that it abused the rights of the citizens.
However the United Kingdom governments response was that the police will continue to use their powers under section 44 which allowed them to stop and search people under reasonable suspection of terrorism and further that these powers will be used under special occasions under public gathering, in crowded places on specific operation.
It is evident by considering the above scenario that the United Kingdom government is not bound by the European court of justice or any third party though the European court of justice was held to be a limitation on sovereignty in reality therefore parliament sovereignty prevails.
In Burham oil V lord advocate the company sought compensation from the government for the destruction of certain oil installations during the war period. House of lords held that the company was entitled to be compensated. But the effect of the decision in burmah oil was subsequently nullified by the passage of war damage act 1965, which had been promised by the government if it was defeated in the courts, abolished the rights at common law compensation in respect of damage to or the destruction of property in the name of crown during war time. This episode demonstrates the ease with which an inconvenient judicial decision can overcome by a legislatively supreme parliament. Therefore it is evident that the doctrine of parliament sovereignty can be used in an oppressive or a tyrannical way.
According to AV Dicey the political sovereignty lies with people and when it’s entrusted to the State it has the ability to exercise legal sovereignty. Dicey says that the British Parliament is sovereign and in propounding this theory he deals with three principles
Professor AV Dicey, stated three notions about the rule of law. According to his view the first rule is “that no man is punishable or can be lawfully made to suffer in body or goods in an ordinary legal manner before the ordinary courts of the land.” Dicey stated that no person can be punished by using arbitrary or retrospective penal laws. But in Burmah Oil Company v Lord Advocate (1965)the House of Lords awarded compensation for the oil tanks that were destroyed in the World War 2.
There are certain legal limitations put against Parliament because it is sovereign but it cannot be challenged by courts. This unlimited convention is based on ‘Parliament respect rule of law.’
. Dicey’s second notion is that “any person whether a man or a woman should be treated equally in courts.” Dicey further stated that every person should be provided with equal rights and liberties. But Sir Ivor Jennings argued that no two people can be equal before the law and states that it is impossible. Similarly when you take rule of law and parliamentary sovereignty it cannot be treated in the same way which means rule of law alone is not sufficient. Allan brings out this clearly by stating that judicial review in Government Communication Head Quarters (1985) case where jury indicating the importance of the rule of law over providing sufficient evidence. In third point, which is the most complexed one he says “people should have their fundamental liberties which are essential for their personal conducts.” They should have their own common law rights which are given to them by the government. So to establish better protection they introduced Human Rights Act 1998.
Therefore in all these instances there is definite indication that Parliament has used its sovereignty to its own advantage overlooking the fact that justice is done
post 2005 reforms, rule of law, human rights act 1998…..
But however the united kingdom constitution started changing between 1970 and 2005 especially during 1997 and 2005 this was because of the devolution to Scotland and whales, devolution to Northern Ireland the constitutional reforms act and the human rights act of 1998.
the enactment of the Human Rights act 1998 incorporating the European court of human rights has made a remarkable change to the sovereignty of Parliament. n community and Union became members in the EU Act 1972 by becoming a member of the Parliament had to surrender its unlimited law making power to a certain extent.
the sovereignty issue concerning the act of union with Scotland has been argued in Mac Cormick v Lord Advocate (1953) where lord cooper stated that ; he has not found in the act any provision that parliament of great Britain hold be “absolutely sovereign” to alter the treaty at will.
Although the british constitution is called unwritten there are numerous written sources therefore it is more accurate to describe the constitution to not codified meaning that not all the rules written or unwritten have ever been consolideated into one single document or code. Which we can refer to as the ‘constitution’
Constitutional law is the supreme law of the country Is enacted through the sovereignty of the parliament,and the British constituotion is not unwritten it is uncodified.
nd therefore it can be found in a variety of documents Magna Carta of 1215, The Magna Carta was signed in June 1215 between the barons of Medieval and king John “Magna Carta” is Latin and means “Great Charter”.
the Act of Settlement of 1701.
Laws and Customs of Parliament; political conventions Case law; constitutional matters decided in a court of law.
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