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Essay on parliamentary sovereignty
Limitations of parliamentary sovereignty
Limitations of parliamentary sovereignty
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Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
The case of Jackson v Attorney General scrutinised the relationship between the rule of law and parliamentary sovereignty in a fresh manner, suggesting that there were restrictions to sovereignty where constitutional fundamentals were at risk . The courts were asked to examine whether the Hunting Act 2004 and Parliament Act 1949 were legal Acts of Parliament, on procedural grounds. It was argued that they did not comply with the legislative requirements mentioned in the Parliament Act 1911, and hence were invalid. Under the Act, it was an offence to hunt wild mammals with dogs except within limited conditions. The Bill was passed using a process under the Parliament Acts of 1911 and 1949, without the approval of the House of Lords.
Refusing to make the declaration, the House of Lords upheld that the 1949 Act has been sanctioned validly using the 1911 Act, and that the Hunting Act had been approved using the modified process. It was affirmed...
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... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
T Mullen, 'Reflections on Jackson v Attorney General: questioning sovereignty' (2007), per Lord Hope.
Ibid at [159] per Baronnes Hale.
Ibid at [102] per Lord Steyn.
Larkin, ‘Debunking the idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709 2, p 61.
H W R Wade ‘The Basis of Legal Sovereignty’ (1995) 172 Cambridge Law Journal 186.
T Bingham, The Rule of Law (Allen Lane, London, 2010), p 162-165.
Ibid, p 168.
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
Jackson v Attorney General [2005] at [102] per Lord Steyn.
A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed 1964) 40.
Ibid, p 114.
The ideology of parliamentary sovereignty represents a constitutional order that acknowledges the necessary power of government, while placing legal limits and conditions upon its excise due to the Rule of Law, developed by the judiciary in cases such as Pickin v British Railways Board [1974] AC 765. The Diceyan theory represents a definition of parliamentary sovereignty. A general summary recalls that,
Gunther, G. (1991). Constitutional Law. Twelfth Edition. New York: The Foundation Press, Inc. pp. 1154-1161.
Kanovitz, J. R. (2010). Constitutional Law (12th ed.). (E. R. Ebben, Ed.) New Providence, NJ,
—. The Spirit of the Laws. Ed. J.V. Prichard. Trans. Thomas Nugent. London: Bell & Sons, Ltd., 1914.
Parliamentary Sovereignty is one of the most significant factors of the Constitution of the United Kingdom, and makes the Parliament the most powerful legal force, who dominates themselves. It involves the legal relationship between the courts and the Parliament, and has remained a traditional value for many centuries, and its doctrine is what makes their system different from other widely held states. However, although the parliament has its strength, it also has some lack of power to control and amend those Acts of the European Union, who tend to override them; such as the European Communities Act 1972, and the Human Rights Act 1998. This paper is going to define and compare the impacts of both Human Rights Act 1998 and the European Communities Act 1972, by showing both similar and contrasting effects on the doctrine of parliamentary sovereignty.
Reece H., ‘The paramountcy principle Consensus or construct?’ [1996] 49 Current Legal Problems p. 267-304
We live in a very diverse society, observance of the rule of law is the best way that can guarantee that our basic human rights are preserved, successful government at home is operating and a fair progress on the international level is maintained. Basic principles of the rule of law go back to Dicey’s theory, which states that there should be an absolute supremacy of regular law, no one should be above the law and that the Constitution is the result of the ordinary law of land. There is no clear meaning of the rule of law; therefore it is essential that the government maintains the basic principles of the rule of law that were established by the philosophers who feared the concentration of power in one’s hands, on order to prevent tyranny. Rule of Law cannot exist without a transparent legal system, the main components of which are a clear set of laws that are freely and easily accessible to all, strong enforcement structures, and an independent judiciary to protect citizens against the arbitrary use of power by the state, individuals or any other organisation. Only if each branch has influence and retraining functions on each other, can the parliamentary machine function properly and give the effect of the rule of law without imposing any tyrannical or arbitrary power by a specific institution, which would infringe the main principles of the rule of law. The issue would arise if there would be very weak separation of powers with a strong concept of parliamentary sovereignty at the same time. The power of judicial review ensures that officials act within the scope of their legal powers and that individuals have an effective way of obtaining remedies if their rights were violated. Although UK is said to have an efficient system of...
Hobson, Charles F. The Great Chief Justice, John Marshall And the Rule Of Law. University Press Of Kansas: Wison Garey McWilliams & Lance Banning, 1996.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
Sueur AL, Sunkin M and Murkens J, Public Law: Text, Cases, and Materials 2e (Oxford University Press 2013)
Parliamentary sovereignty is a vital principle in the U.K constitution, which demonstrates that there are no legal limitations for parliament when creating/ending any legislation. The extent of impact Parliamentary sovereignty has is that nothing can override the legislation of parliament and it is impossible to bind future parliaments. However, these principles put forward by a constitutional law theorist Dicey, arguably do present political limits to parliamentary sovereignty. When the European law was incorporated in the U.K, parliamentary sovereignty was abdicated to the EU which prioritised European law. Thus, parliament had abdicated its power to another body which is referred to as the transfer of powers. To overcome the issue of EU Supremacy and parliamentary sovereignty the European Communities Act 1972 was passed in order to avoid conflicting views.
Leslie G. Scarman, ‘Codification and Judge-made Law: A problem of co-existence’ [1967] 42(3) Indiana Law Journal http://www.repository.law.indiana.edu/ilj/vol42/iss3/3 accessed 12 February 2012
In contrast to the United States and various other jurisdictions, the doctrine of parliamentary sovereignty in England basically means that it is not allowed for courts to provide judicial review...
Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.
Although Parliament does not usually make law, it has the important role of scrutinising Bills. This involves close inspection and proposed amendments made by both the House of Commons and the House of