In 1885, in his book ‘The law of the Constitution’, Professor Dicey wrote that the uncodified constitution of the United Kingdom was underpinned by two principles, The Sovereignty of Parliament and The Rule of law. (A Dicey, An introduction to the study of the law of the constitution, 10th ed, 1959). The sovereignty of parliament is considered the founding principle of the constitution that can effectively supersede the Rule of law however it is clear that the two principles are interlinked and that the UK constitution is unable to function effectively if parliament and public officials do not respect the Rule of law. (The Rule of law and its underlying values, Jefferey Jowell) In this essay I will consider the Diceys definition of the Rule …show more content…
Judicial review is the means by which the high court exercises a supervisory jurisdiction over the decisions and actions of the inferior courts, tribunals or other public bodies. Richard Gordon, ‘Judicial review: Law and procedure’, (3rd Edition). Before Judicial review there was no effective way to supervise the administration and the British people had no way of seeking redress for grievances caused by actions of public authorities. (The Curious Origins of Judicial review’, T.T Arvind, Lindsay Stirton, 2017) The Minister of Justice commented that ‘Judicial review can be characterised as Diceys rule of law in action’.(Judicial review proposals for reform consultation paper sep 2015). If a public body abuses its power by acting outside the boundaries or not adhering to certain procedures it can be subjected to a judicial review claim by a member of the public. Effectively the rule of law is acting as a constraint on governmental power.(The Rule of law and its underlying values, Jefferey Jowell) The main requirements or grounds for judicial review were set out by Lord Diplock in Council of civil service unions v Minister for the civil service. They include legality, requiring officials to act within the scope of their decision making powers. The second ground is procedural impropriety which requires that fairness must be shown to those affected by the decision. Fairness was mentioned by Lord Bingham as one of the features of the Rule of law. The third requirement is irrationality or unreasonableness. .(The Constitution of the United Kingdom, Peter Leyland). In Bromley v Greater London Council a new policy decision by the Greater London Council was declared unlawful by the House of Lords and had to be repealed. This is a key example of a how judicial review reflects the rule of law as government officials as well as civilians
then prepares its reports. If a change to the law is decided on then a
What is judicial review? It was established after which court case? Explain the case briefly.
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.
To give conventions justiciable entitlement would be taking away from the highly advantageous flexibility that the UK Constitution has attained from remaining uncodified. Further, the large volume of conventions may provide a difficulty in enforcing them within the courts. In contrast, it could be argued that codifying select conventions may bring certainty to many unclear areas, such as defining the Ministerial Code partly did, thus providing an easier structure for conventions to be enforced legally. However, conventions are merely seen as a moral and political obligations, and should not upon breach have legally enforceable consequences. The argument against whether the court should enforce conventions will be supported and discussed in this essay.
overrule UK laws but here we see that it does. So we can say that
Exploring To Which Extent the Parliament is Supreme There are two sides to this argument, one obviously defending that Parliament is Supreme in the law making process, and has utmost authority, the other stating the constraints on Parliament and there it is not supreme. Within Britain, parliament is the supreme law making body. The idea behind this is that the people select parliament and, therefore, the people make the law. We describe this as PARLIAMENTARY SOVEREIGNITY, That is to say that Parliament is the highest power in the land, and shall not be challenged. An example that shows parliamentary supremacy is Cheney .vs.
An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
One of the most influential and celebrated scholars of British consistutional law , Professor A.V Dicey, once declared parliamentary soverignity as “the dominant feature of our political insitutions” . This inital account of parliamentray soverginity involved two fundamental components, fistly :that the Queen-in-Parliament the “right to make or unmake any law whatever” and that secondly “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” . However this Diceyian notion though an established principle of our constitution now lies uneasy amongst a myriad of contemporary challenges such as our membership of the European Union, the Human Rights Act and a spread of law making authority known as ‘Devolution’. In this essay I shall set out to assess the impact of each of these challenges upon the immutability of the traditional concept of parliamentary sovereignty in the British constitution.
Acts of Parliament as Public Law Acts of parliament are considered to be the highest form of law in England. The reason for this is constitutional. Under England's unwritten constitution, parliament is seen as sovereign. As a result, its enacted will, in the form of Acts of parliament, cannot be challenged in the courts. However, in practice there are legal, political and moral limitations on this sovereignty, which will be discussed in some detail in the following pages.
The test of standing for an individual who looks for a review has been depicted as requiring a; specific legal right, legal right, real interest, special interest of sufficient interest. According to Cane and McDonald (2012, pg. 177), there are at least two ways for contemplating the law of standing and the elements of standing principles. The first approach can be known as the ‘interest based grievance model of standing’. This emphasises on the individual’s interest’s mirrors the perspective that the main role of judicial review is the protection of individuals against the ill use of government’s force. The second way to deal with the subject of standing can be described as the ‘enforcement model.’ On this approach, the applicant standing is dictated by asking whether they are a suitable individual to uphold the norms of administrative law. In noting this question, the court may have respect to the personality and capabilities of the candidate.
The concept of ‘the rule of law’ has been discussed by many. Professor Geoffrey Walker in his 1988 paper wrote ‘…most of the content of the rule of law can be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it’.
... judiciary will then be able to apply the rules as parliament intended them to be applied. The sovereignty of parliament disbars the judiciary from reforming or creating law. However, the lack of parliamentary time for debate and areas of law where there is uncertainty about what was intended does provide the judiciary with the opportunity to change, develop and amend the law in the UK through the process of statutory interpretation. In addition to this judge's can refer cases to the European Court of Justice in order to have an influence on law reform in the UK.
To begin, we must understand the meaning of the rule of law and why the UK courts implement this constitutional principle in day to day practice. British jurist and constitutional theorist A.V. Dicey paved the way for much of our understanding of the rule of law we know today; giving a strong starting point for academics such as Lord Bingham and Joseph Raz whom later on developed the formal and substantive theories of the rule of law. Dicey has three key principles: no punishment unless there is a breach of the law; Law should not be exercised arbitrarily; and there should be a consistency in the creation of law. Dicey simply means that an individual should be aware of laws which apply to them, they are free to act as they please, whether they
The rule of law, simply put, is a principle that no one is above the law. This means that there should be no leniency for a person because of peerage, sex, religion or financial standing. England and Wales do not have a written constitution therefore the Rule of Law, which along with the parliamentary Sovereignty was regarded by legal analyst A.C Dicey, as the pillars of the UK Constitution. The Rule of Law was said to be adopted as the “unwritten constitution of Great Britain”.
It should be noted that the United Kingdom operates an unwritten constitution which implies that its laws are contained in Acts, conventions and legislation; this made the parliament the supreme