Parliamentary sovereignty has traditionally been the cornerstone and leading authority of the UK’s unwritten constitution related to all tenets of legality. Whilst parliamentary sovereignty remains a supreme and guiding constitutional principle, its power is no longer absolute as a result of the UK’s membership in the European Union, the creation of the European Communities Act 1972 and devolution settlements. The repercussions of these changes have not only resulted in various controversial cases such as Factortame, but have in addition led to a dynamic change in the relationship between the judiciary and Parliament. The judiciary is no longer forced into subservience as the creation of the Human Rights Act 1988 and Constitutional Reform Act 2005 have created a new settlement changing the nature of constitutional authority in the UK. The CRA 2005’s creation of the Supreme Court granted the judiciary greater independence and provides a clear separation of powers, embodying the democratic principle of the rule of law.
In contrasting the historical and paramount account of Parliament sovereignty by A.V. Dicey to the present, it is clear that changes have taken place in regards to both adjudication and practice: “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament, thus defined has, under the English constitution, the right to make or unmake any law, whatever; 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”. Based on this definition, it is clear that parliament’s power is no longer absolute and is therefore limited as a result of The ECA 1972 and devolution settlements such as N...
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...gina v Secretary of State for Transport, Ex parte Factortame Ltd. and Others (No. 2) [1991] 1 A.C. 603, 658-659 (Lord Bridge)
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A more sudden, but perhaps equally profound event is the adoption in 1982 of the Canadian Charter of Rights and Freedoms. Whereas before the adoption of the Charter Canadian legislatures were supreme, having power without limit within their jurisdictions, they now have debatable supremacy within altered jurisdictions. Moreover, although no powers or rights have been explicitly ‘reserved’ to the people, supporters of the charter nevertheless appear to give Canadians hope that the possibility may exist.
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This paper will argue that the Supreme Court of Canada has adopted a quasi-legislative approach in its decision making as a result of the Charter of Rights and Freedoms, 1982. Quasi-legislative is defined as having a partly legislative character by possession of the right to make rules and regulations, having the force of law (Merriam-Webster). In this paper, it is useful to define quasi-legislative as the court’s ability to influence policy, be it innocent or motivated, through charter enf...
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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.
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
The English legal system is complex and there are many ways in which it can be influenced, this essay will explore some of the different, more obvious ways the law can be changed and what this shows in relation to the quote above. First the essay will discuss the different ways the law can be created and changed and who enables and controls those changes, with my primary examples being the common law and legislation for the judicracy and Parliament respectively, then the essay will cover to what extent these powers enable the judicracy to change and create law in relation to Parliament and if it could be discribed as "opportunistic and piecemeal".
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On one hand, political constitutionalists argue that parliamentary sovereignty is the underlying principle in the British constitution as power and law making are bo...
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