The Principle of Parliamentary Sovereignty - Research Paper Example

 To understand the concept of parliamentary sovereignty, one needs to look at it in a historical context. It took almost more than nine hundred years for the Parliament to emerge as an institution in the United Kingdom, which led to the emergence of the House of Commons and the House of Lords. It was in the fifteenth century that Henry V placed the two houses on the same footing, with the House of Commons representing the general citizenry while the House of Lords represented the nobility. However, it was in 1689, when with the passing of the Bill of Rights it was assured that the Parliament not only had a supremacy over the Crown but was also vested with the power and the authority to legislate and abolish laws. It were the subsequent Parliament Acts passed in 1911 and 1949, which not only curtailed the amending powers of the House of Lords in the sphere of monetary bills, but also shrunk the time limit beyond which it could delay any bill.1 In the contemporary context, the Parliament comprises of the House of Commons comprising of the MPs elected by the people and the House of Lords comprising of the Lords, Law Peers and the crown. So the concept of parliamentary sovereignty in the UK needs to be taken in a historical and evolutionary perspective, which metamorphosed and developed over a long period of time. Parliamentary sovereignty is a politico-legal principle enshrined within the constitution of the United Kingdom. To put it simply, the concept of parliamentary sovereignty connotes that the Parliament stands to be the supreme legal authority in the United Kingdom, which alone has the power to bring into existence or abolish any law.2 In general, the courts in the UK do not have the authority to overrule the laws enacted by the Parliament. Besides, no Parliament in the UK can enact any law or laws that cannot be amended, changed or abolished by any Parliament in the future. Though parliamentary sovereignty stands to be an utterly important principle in the UK constitution, in practice it qualifies to be labelled a double edged sword. In a historical perspective, the principle of parliamentary sovereignty gave precedence to the will of the citizenry over the writs of the Crown and the nobility. However, there is no dearth of modern legal historians, who interpret the principle of parliamentary sovereignty as the utter failure of the English Law to come out with a due process as in the US constitution, aimed at protecting the infringement of the human rights and privacy of the citizens by the Parliament and the State. The principle of parliamentary sovereignty was held high in Jackson v Attorney-General by Lord Bingham3. Jackson v Attorney-General was a pivotal House of Lords case that bring to fore the legality of the Parliament Acts 1911 and 1949 in the context of banning fox hunting by passing the Hunting Act 2004. The Hunting Act 2004 was passed while ascribing to section 2 of the Parliament Act 1911, which was amended by section 1 of Parliament Act 1949, in the sense that the Act was passed sans the consent of the House of Lords after the expiry of the proscribed delay. In that sense, Jackson v Attorney-General stood to be an important case lying within the scope of the principle of the parliamentary sovereignty.4 Within the sphere of the parliamentary sovereignty, Jackson v Attorney-General raised the question raised the questions regarding the validity of all the legislations passed under 1949 Parliament Act as the appellants argued that the Hunting Act passed under the 1949 Parliament Act was invalid, because the parent act was passed while ascribing to the 1911 Act, a privilege that the 1911 Act never intended to allow. Since the Enrolled Bill Doctrine enunciated that the courts of law could not look into the procedural aspects of a passed legislation, the bigger question that this case raised was that whether it was allowable to courts to challenge an Act passed by the Parliament. Lord Hope put an end to this controversy by referring to the principle of pre-enactment practice when he said that: “The political reality is that of a general acceptance by all the main parties and by both Houses of the amended timetable which the 1949 Act introduced. I do not think that it is open to a court of law to ignore that reality . . . the restrictions of the exercise of the power of the House of Lords that the 1949 Act purported to make have been so widely recognised and relied upon that these restrictions are, today, a political fact. It is no longer open to the courts, if it ever was, to say that the Act was not authorised by section 2(1) of the 1911 Act.” 5 Here Lord Hope certainly ascribed to the claims of political history to extend relevance and credibility o a political practice. Lord Hope and other judges definitely referred to both the historical background relevant to the enactment of 1911 Act and the subsequent political practices associated with the interpretation of this Act, thereby declaring the 1949 Act to be valid.6 Doing so, Lord Hope upheld the views of Dicey, as per whom the Parliament stood to be supreme and sovereign in the matters of enacting laws as it is the electorate who vest authority in the MPs to enact laws. To put it in a concise manner, a thorough analysis of the opinion of Lord Hope in the case under consideration leads to the conclusion that the Parliament Act 1949 is valid as it accrued validity not as per the will of the citizenry, but also as per the historical practices and interpretations. References Bromhead, PA, The House of Lords and Contemporary Politics (Routledge & Paul 1958) Earlsferry, Rodger, The Courts, The Church and the Constitution (Edinburg University Press 2008) Freeman, MDA, Legal Theory at the End of the Millennium (Oxford University Press 1998) Jackson v Attorney-General [2005] UKHL 56 Mullen, Tom, ‘Reflection on Jackson v Attorney Journal: Questioning Sovereignty’ 2007 Legal Studies 27(1) Read More