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Parliamentary sovereignty - Essay Example

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The notion of Parliamentary Sovereignty has been central to democratic practice for a considerable period of time. In a democracy, the legislature is elected by popular vote and this has been a major feature of the English Constitution…
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Download file to see previous pages The notion of Parliamentary Sovereignty has been central to democratic practice for a considerable period of time. In a democracy, the legislature is elected by popular vote and this has been a major feature of the English Constitution. In the initial stages of democracy in Britain, liberty was at grave risk due to monarchical power.1 As a consequence of the doctrine of Parliamentary Sovereignty, the Parliament was empowered to enact or rescind any law whatsoever. In addition, no individual or organisation was permitted by English Law to set aside or overrule legislation enacted by Parliament. In R (Jackson) v Attorney General,2 Lord Hope stated that Parliamentary Sovereignty was not absolute. Thereafter he referred to the enactment of the 1972 European Communities Act and the 1998 Human Rights Act which had effectively diminished the power of Parliament to legislate.3 There was disagreement among their Lordships, regarding the ruling in R (Jackson) v Attorney General. This divergence in view related to whether the process detailed under section 2 of the Parliament Act 1911 and 1949, could be employed by the House of Commons to extend the life of Parliament beyond 5 years. The decision in the Jackson case apparently supports this view. Most of the members of the House of Lords were against this conclusion.4 However, they were signally unable to substantiate it in a manner that was consistent with promoting the supremacy of Parliament. In particular, Lord Hope highlighted the fact that the notion of absolute legislative sovereignty of Parliament that had been derived by Dicey from Blackstone and Coke was undergoing gradual change. However, in his judgement in this case, Lord Hope refrained from explicitly declaring that the courts lacked the power to question the validity of legislation for the reason that the latter was incompatible with union legislation.5 However, Lord Hope was of the opinion that union legislation was a tangible constraint on Parliamentary Sovereignty. As per Lord Hope, the doctrine of Parliamentary Sovereignty was central to the Constitution. However, due to certain developments, Parliamentary Sovereignty was not absolute. Consequently, it would be incorrect to contend that Parliament’s freedom to legislate is unrestricted.6 In addition, Lord Hope stated that the rule of law, which was implemented by the courts, was the decisive controlling factor, and that the Constitution was founded on this element. Furthermore, Parliamentary Sovereignty would be rendered a hollow doctrine, if the general public refused to acknowledge legislation enacted by it, on the grounds that it was extremely offensive and incongruous. The fulcrum of the British Constitution is the doctrine of Parliamentary Sovereignty. Dicey, wrote extensively on the doctrine of Parliamentary Sovereignty and deemed it to be the underlying feature of British political institutions, as well as the very bedrock of constitutional law.7 As per Dicey, parliament can repeal or enact any law and the judiciary cannot hold a statute to be invalid for the reason that it breaches legal or moral principles.8 Thus, every fundamental law, with the exception of the principle of Parliamentary Sovereignty, can be altered by Parliament. One of the critical features of the rule of sovereignty is that no parliament has the power to bind its successors. Thus, there is no avenue, whereby a parliament can ingrain an Act of Parliament.9 In other words, every Act of Parliament can be repealed by subsequent legislation. Dicey was a strong proponent of the thought that the Rule of Law would be affected by discretionary power, as the latter would ultimately result in arbitrary decisions. This has been criticised by some scholars, who have contended that discretion is inevitable in a modern state, if a wide range of regulatory and welfare duties have to be carried out.10 All the same, several important values are incorporated in the Rule of Law, such as access to justice, accountability, certainty, due process, efficiency, ...Download file to see next pagesRead More
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