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The Supremacy of Parliament

Info: 2655 words (11 pages) Essay
Published: 26th Oct 2021

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Jurisdiction / Tag(s): UK Law

The parliament emancipation is based on the rule of law. [2] The supremacy of parliament is designated in two main parts which are the unlimited legislative sovereignty of parliament and second is the deficiency of any competing power in the state of accomplishing the overriding acts of assembly. It is been consider that parliament have the ultimate power to make anything possible. “Parliament can do anything or everything but make a man a woman or vice versa i.e. can do whatever they like to do which is naturally impossible. It is said “England could never be ruined but by a Parliament”. This perception of Burleigh is quoted by Blackstone in his commentaries [3] .

In addition to this Jack Beatson also mention in his article [4] that Blackstone will not accept his title because Blackstone describes the members of parliament “as the guardians of English constitution [5] ” which is also stated in the article. In Jack Beatson article it is stated that parliament position has been changed on January 1 1973 when United Kingdom became the member of European Union. Therefore it is clear that courts have observed that Sovereignty of Parliament has been limited [6] . It is been considered by Vernon Bogdanor in his book [7] that the entry of Britain in European Union have take out the old constitution with the new constitution. It is said that the new British constitution indicates the constitutional move from the principle of parliament sovereignty, to the dicey constitution to the human rights act 1998 which is stated in book “the cornerstone of the new constitution”. In this parliament sovereignty when the doctrine establishes as the quotation of Dicey law of the constitution reveals that it is the legal supremacy of statute which is quite not similar to the sovereignty of parliament. Parliaments may by statute make or unmake any law which courts are obliged to uphold and enforce it.

It is been said that parliament can no parliament can bind subsequent parliaments. It means that subsequent parliament can make amendments that it wants and there is no compulsion for it to take the place of the same assumption laid down by previous parliament. In a recent article by Alison young [8] argues that the courts could be provided with somewhat greater capability then the declaration of conflict to protect the convention rights without peril the orthodoxy of the legislative supremacy of parliament. However it was also argue that this could not be possible, since the act enable discourse to take place between courts and legislative. Due to that it gives more recognition to the claims of democracy than is possible through judicial decision making [9] .

Professor HLA Hart the concept of law 1961 holds that the rules of parliament sovereignty are a part of what he calls the “rule of cognition” in the legal system. It is been noticed that the rules of recognition is binding because of community acceptance particularly by its judges and officials. It is said that the rule of recognition sustaining our constitutional system is said to include the proposition that parliament cannot bind itself. There are two types of rules which are considered that are primary rules of obligation for example murder is against the law, and there are secondary rules of recognition.

The diceyan orthodoxy has both the positive and negative aspects of Dicey’s formulation of the sovereignty of parliament. As it is stated in the case of Cheney v Conn [10] it says in this case that what the statute itself enacts cannot be unlawful because what the statute says and provides is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that the parliament enactment the highest law in this country is illegal [11] . Lord Hoffmann said in the case of R v Lyons [12] that “the sovereign legislator in the United Kingdom is parliament. If parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the crown in breach of an international treaty or not”.

In the parliament sovereignty the enrolled bill rule establish in the case of Edinburgh and Dalkeith railway Co v Wauchope [13] . In this case it was stated that the limit of the courts function is to look at the parliament role. If the court examines that the act has been developed or passed with both Houses of Parliament and received royal assent the court has no power to explore in to the validity of act. It is been also said article 9 of bill of rights [14] “that freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament”.

As a matter of fact, parliament could amend or repeal the Statute of West Minister [15] . It was stated is its S.4 “No parliament shall extend or to be deemed to extend, to a dominion… unless it is expressly declared in that dominion has requested, and consented to the enactment thereof”. However as Lord Sankey said in the British Coal Corporation v The King [16] “that is theory and has no relation to realities” for in practice it would be the attitude of the dominion courts that would matter, rather than that of the British courts, when any questioning involving such as amendment came to be decided [17] . It is also been said by Herbert CJ [18] in a case that he stated if an act of parliament had a clause in it that it should never be repealed yet without any question, the same power that made it, may repeal it.

In addition to this the procedure for enactment of statute is that a bill must be read and passed three times by each Houses, which are Commons and Lords and after it will receive a royal assent. Since the parliament Act 1911, the Commons and Crown have adored the limited competency to legislate without the consent of Supreme Court. In the case of Jackson v Attorney General [19] has argued that that 1911 Act had established a delegated body comprising Commons and Monarch only with limited law making powers. The 1911 act sought to limit the powers of Supreme Court. These arrangements were amended by the Parliament Act 1949, which abridge the length by which the Supreme Court may delay the bill from two years to one year. For example S.1, Money bills to become Acts of Pm without need for Lord consents. In book it is stated [20] that 1949 act was passed using the 1911 Act procedure. Jackson [21] argued under the Hunting Act 2004 and Parliament Act 1949 that 1949 act was not assented to by lords that it extends law-making powers of Commons and Royal prerogatives which is unlawful. Jackson [22] also argued that if 1949 act is unlawful so all the other acts which made under it are also unlawful which includes the Hunting Act 2001. HL also stated that 1911 Act procedure could be used to amend the 1911 act itself. Therefore it can be said that 1911 act can alter the act itself.

Moreover when Jackson argued that there is a delegated legislation body that have to make law without counting the Supreme Court, this argument was rejected by Lord Bingham that he said “lay not in authorising a new form of sub-primary legislation but in a new way of enacting primary legislation” [23] . The Supreme Court has some critical dangers due to these both Acts. The 1911 and 1959 acts could be used to make the fundamental changes in the constitution that could crumble checks and balances in constitution (e.g. abolishing judicial review). However by Steyn [24] he stated “the classic account given by Dicey of the supremacy of parliament, pure and absolute as it was cannot been seen as put of place in the modern United Kingdom… in exceptional circumstances involving the attempt to abolish judicial review or ordinary role of the courts may have to consider whether this is constitutional fundamental which even a sovereign parliament… cannot abolish”.

As it is said earlier that supremacy of parliament is also based on the rule of law. As Lord Woolf said in his article [25] that the two main principles upon which the rule of law depends is the supremacy of parliament in its legislative capacity and the other that the courts are final arbiters as to the interpretation and application of law [26] . Under the Dicey’s conception [27] the rule of law means the absolute supremacy of regular law which connect the impact of arbitrary power and excludes the existence of arbitrariness, of prerogative or even wide of discretionary authority on the part of government. That the government under law is to be that Englishmen are ruled by the law, and by the law alone, a man may with us be punished for a breach of law but he can be punished for nothing else [28] . Secondly it also meant that equality of all men before the law as administered by the ordinary courts.

It can be seen that the fundamental principles of the British constitution were parliamentary sovereignty and the rule of law which can look through the supervision of Dicey. However this issue has been objected by Jan-Erick lane which he did not fully understand the concept of this model. He argued if parliament has sovereignty then how it could be bound by the rule of law…? If the rule of law is the foundation of state, then how can parliament claim a power not bound by any legal restrictions [29] ? It is said that the rule of law in Government under law requires an independent and impartial judiciary and also that the judgements of the judiciary should be implemented and respected. The rules of law had been made to follow through which parliament; government had made which for example was not followed in the case of Entick v Carrington [30] where a guard did not follow the law under government.

In another sense the rule of law also favours the Parliament sovereignty. The rigidity of law constantly hampers the action of executive. It is considered that under some certain contingency acquires the right to exercise the discretionary power. It has been argued that Dicey was apprehensive of the danger implicit in discretion, saying that the rule of law excluded wide discretionary on the part of the government [31] . The courts are denied by the Government of any sort of discretionary power. Kanneth Culp Davis [32] has argued about the discretionary that elimination of all discretionary is both impossible and undesirable. If discretionary power is conferred is a wide and unqualified term there is a risk then it said “that it must concede to Dicey, that its exercise may be infected by uncertainty, inconsistency or even perversity” [33] .

Joseph Raz [34] had said that “A non-democratically legal system based on the denial of human rights on extensive property on racial segregation, sexual inequalities and religious persecution may, in principle, conform the requirements of the rule of law better than any of legal system of the more enlightened western democracies. Raz also argued and said that “people should be ruled by the law obey it, that the law should be like this that people will able to be guided by it” [35] . In his further view he also said that the courts should have review powers over the implementation of other principles.

To conclude the Supremacy of the Parliament has some of the limitations which courts are not able to transfer the responsibilities which considered to be upheld and analyse it. The Parliament Sovereignty has many drawbacks and the confinements which are not be inalienable. Thus the supremacy of the rule of law calls forth exertion of the Parliament Sovereignty and leads to its being exercised in a spirit of legality.

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