The Principle of Parliamentary Sovereignty and Judicial Supremacy in the UK - Coursework Example

The Principle of Parliamentary Sovereignty and Judicial Supremacy in UK Essay Number of Words The Principle of Parliamentary Sovereignty and Judicial Supremacy in UK With the institutionalization of the constitution in the United Kingdom, Legislative supremacy is adept by firmly following the notion that Parliament does not apply its independence. Set up by the legislative arm of government in a domineering and totalitarian way. Judiciary independence depends on how the other arms of government maintain a dependent working atmosphere that allows them to work separately without any influence from other sources. It ensures that the rule of law is fully enforced and consistently. These separations allow for the three arms of government to be as a check and balance on the others. United Kingdom having unwritten constitution necessitates a likelihood of the parliament to abuse its power in a manner that it is not right considering the power of the law. The possibility of it happening is narrow to zero when relying on the Legislature that it cannot do it due to it adhering to the rule of law. According to Geoffrey Marshalls, he believes that the most universal and undeniable fact of the UK constitutional structure is that legislative never uses it decisive and independent influence of parliament in a totalitarian manner. This declaration seen as an elusive account though there is a plainly believe that the rule of law and constitutional followed procedures. These rises three ultimate queries. To start with how the agreement reached upon, secondly, it is how this convention can ultimately guard against authoritarian and decisive powers and finally how this guard can reinforced for effectiveness. In my viewpoint, I support the statement also; I disagree with it through my explanations in this paper1. The power that Parliamentary sovereignty has makes it possible to recognize legislative as a supreme authority in the United Kingdom, which allows it to make or end any by-law. In general, the courts of law cannot overturn the parliament and in the same case, the legislative body cannot enact a rule that will be hard for the future legislative to change them. It emphasizes the significant role of parliamentary sovereignty has in the United Kingdom. It makes it be recognized as an essential structure of the United Kingdom constitution. As noted the judiciary do play a vital role of make a decision on disputed matters while the parliament role is to implement legislative bills. The principle of Parliamentary sovereignty creates the supreme policy making body of the UK that is the legislature. The laws created by the legislature are non-justifiable which demonstrates the influence of Legislature as a reviewing law making the body. Although this is the fact, it is not the same as was the case in 1688 during the Glorious Revolution. Subsequently, the courts of law had restricted Parliament legislative powers and were not in use. According to Dr. Bonhams it is definite that the common law has the authority to control the bill of house to some extend declaring them void. Similarly, the law does not permit any judge to give justice to them more so if the deed was against the natural equity making it void in itself. With the end of Glorious Revolution legislature allowed the existence of its control stripping it off from the Monarch making parliament powerful2. According to Dicey, he upholds that the legislature has the power to change what it has implemented because there are no any legal restrictions upon its doing. That is why Council takes up the control to limit or even abolishes civil liberties when these rights clash with the government interests. It leads to an overview by many individuals in the UK believing that human rights in other foreign countries are safer than in Britain. It makes the person and intellectuals to ascertain that traditions of liberty are more reliable than the protection given to freedom for instance during the protest. As stated earlier the parliament of the UK has unconstrained authority but still does not abuse it as the existence of the agreements. With these, it makes the convention firmly followed though the convention did not legally state, again they cannot impose them in the law courts. However, the powers of the legislature bounded by the agreement in the rule of law and constitutionalism. Albeit with the presence of the Constitution, the government is bound to follow the limitation required for any changes to take place. This show there is a minority of individuals who enjoys the use of constitutionalism such as the government bureaucrats and the political society. These classes of persons can do anything they want to but are limited to observe the procedures and authority stated in the constitution. It is undoubtedly that the policy-making organization is the parliament, and the bureaucrats are limited to it when making the laws3. It is evidently that the rule of law is directly above every individual, and it applied to each though approve or not. The Supremacy of the Law expressed in a manner that no one is above the law, no one relieved from, and even no individual can give an exemption to the by-law. As stated by the argument made by Dicey-stressing three features of the rule of law. No person can face oppression or reprimand apart from going against the breach of the rule, and it has to have proven by the courts of law. Secondly, nobody is above the law but everyone is equivalent to the common law irrespective of one background. Finally, the universal rule includes the outcome of the jury verdicts shaping the right of the sequestered individual. Parliament in the United Kingdom is the ultimate law-making structure as stipulated in the constitution. These emphasize that the laws made in Parliament should supersede all other foundations of the law. With this, it makes the legislature be superior and be in a position that it overrides decisions reached by the judiciary. Parliament, in this case, is capable of replacing the common law. In the situation whereby the traditional laws are outdated, it will remain ineffective until when the legislature comes in and repeal the bill through an act of the parliament. In addition, Parliament is in a position to make and change any rule that it want to at no definite period. It appears this way because of the status it holds in the constitution as a law-making body. These show that legislative subjected to and got support from the principle of indirect repeal. With this authority given to parliament, it has to follow regulations that do not restrict future parliaments in changing and making laws. This Act does allow the parliament to have sovereignty in making law at any given period4. With respect to the above elucidation parliament, do find itself in jeopardy concerning it autonomous authority. These come from the public opinion that at times goes against their demands. Therefore, the perception that the legislature is above the law at times generally controlled by the practical reality. The parliamentary sovereignty is an essential decree of Britain constitution; its power restricted to some extent. In the case of Lord Hoffmann, he highlights that in spite of the fact that the Legislative body has the control to make most relevant legislation opposing to rights in the legitimate area. The aspect of the United Kingdom courts of law acknowledges the independence of parliament; they should consider those constitutional rights that cannot be constrained by any influence. Four decades ago, the United Kingdom came in agreement to join the European Community in the year 1973. Since the foundation of the European Union had been, recognize as an accredited order. With these, the treaty on board Britain was bound to international law. Following the earlier signed Treaty of Brussels, the EU acts of 1972 prepared by the legislature. In this act, it strictly lied down rules concerning liabilities, authority, restrictions, and obligations. With these treaties on the course, it hindered the autonomous nature of the Britain parliament and the parliamentary hegemony. The European Union under the European Community Act affected the way in which the Parliament of the United Kingdom operates. With the enactment of the EU laws, it shows that there is nobody above the law as stated in their bill that many countries had signed5. The positions of the European Community Act of 1972 are vital to the scrutiny of the European Union legal order. As provided in Section 2(4) it states that all laws whether already endorsed or yet to be approved must also be read given the effect to a reliably with enforceable doctrines of European Union law. Again, in Section 3(1) it elevates resolutions of the ECJ to requisite standards for all United Kingdom law courts and trials. Albeit there is an outlook that the hegemony of the European Union cessations based on a native law, which the simple majority can repeal it. If this does not take into account the hands-on complications of repealing6. Additionally, the autonomous weakened by the overpowering breadth and possibility of the European facts, for instance, the Maastricht Treaty of 1992, that for a long time altered by the agreements of Amsterdam Nice. Moreover the most recent one of 2009 known as the Lisbon Treaty. The rapid growth of this coverage of the treaties applied in practical terms. While diminishing parliamentary influence because of the extend competence of the European Union to being able to constitute a broader area of policy areas. The submission of the European Community Act in the native domain, particularly in relation to engagements flanked by the European Union and national by-law has issued a challenge to the traditional concept of legislatorial independence. In Factor tame, the upper house firmly acknowledged the sovereignty of European Union law and misapplied the 1988 Act known as the Merchant Shipping that directly conflicted with what was then European Community law. According to Lord Bridge, he indicated that the position under which the 1972 Act has been working was clearly the duty of the United Kingdom court of law in time of giving final verdict delivery. He emphasizes that to override any tenet of state by-law found to be in opposing with any un swervingly enforceable statute of the Community law. These seem to terminate any concept of Parliamentary authority, which may have occurred, highlighted as the ECJ has indicated by Wade that European Union law is ultimate. Undeniably, the outcome of this declaration considered radical as Wade, who sort to conclude the proclamation of Lord Bridge as refer to the fact that Legislature endorsed the European Community Act. They had been able to fix its successors in the coming House of Common. The traditional theory postulates that any Bill of Parliament could change an earlier one, thus considered to override any unpredictable requirements. What this verdict appeared to emphasize was that Legislature was bound to European Union sovereignty, and not parliamentary power hence legislative system underpinned. According to Wade, legislative supremacy is eventually a judicially acknowledged. The political fact and the resolutions in this incident are the lawful revolutions through a legal recognition that, constitutionally, the European Union had implemented supreme parliamentary supremacy7. Efforts to expound away on the applied realities of the judgment have seemed like despairing efforts to maintain the notion of governmental autonomy. Has argued earlier in the 1988 Act of Merchant Shipping was not in unswerving in conflict with European Community law so, rather than striking down the Parliamentary Acts. The Court of law was merely deducing the law in accordance with Treaty requirements. As proposed by Lord Dip lock in Garland v British Rail Engineering, the idea pursues to hold the indication of parliamentary sovereignty but does so unpersuasively. Only a direct and actual task by the Legislature, through the deliberate paradox of European Union law, it can disclose the insolence of the Court of law to the concept of parliamentary sovereignty. In such situations, nonetheless, it is implausible that the outlooks of such as that reserved by Lord Denning’s in McCarthy v Smith to be acknowledged. His dispute that the Court of law would be indulged to apply internal instead of European Community law fails to take into account the applied realities of European Union incorporation. Although Legislature considered ultimate in relation to British law, a completely innumerable of the by-laws that do not find roots in the UK now form a significant element of our legitimate system. This declaration captured in the original outset of the supremacy. As defined by Allan, he states that the term legislative sovereignty, which denotes that the Legislative body is the ultimate law-making body in the United Kingdom, authorized the order. This hypothetical elucidation presents the conflicting attitudes articulated in the incident of law by outlining the different domains of influence that United Kingdom and European Union law currently occupy. Point out on the judgments in Thoburn, Allan keeps on highlighting that the on-going reign and autonomy of the UK lawful order that remains untouched. Going hand in hand with his extra remarks, this helps to preserve the impression of parliamentary sovereignty in terms of UK law but admits that in real terms, European Union law is ultimate. This analysis is sum up to a conclusion of middle ground a situation whereby legislatorial supremacy no longer articulated to be complete. However, its functions as a support of the Constitution is not relatively ready be relinquished8. The membership of the European Union has also helped in the implementation of the 1998 Act of Human Right, uniting the European Convention on Human Rights into local law. It had demanded that the subtly and prudently conscripted Human Right Act of 1998 conserves the doctrine of parliamentary autonomy. The capability of the Court of law to create an affirmation of unsuitability according to Section three of the Act appears to refute this argument. This establishment permits internal panel of judges to determine whether a domestic by-law act in accordance with the Act in relation to the European Convention. In addition, to declaring it was crashing if it falls profane of its requirements. Once more, this highlights the effect of an external element of the authority of Upper house. Currently, the legislature can make and change any law it decides on, as long as it conforms to Human Rights Act barely the standard instance of sovereignty. In conclusion, it is clearly that with an affiliation of the European Union, legislative supremacy weakened to a point of destroyed it. With this outdated concept advocated by Dicey has long been crumpled by the European Convention Act also the verdicts by the ECJ also Upper House that approve the sovereignty of the EU legitimate order. What remains, still is the theoretical concept that desperately reserved by those that still stress on the parliamentary power. Undeniably, the draft EU bill emphasize as much. However, seeking to embrace on to the spirit of legislative supremacy does nothing for it in real terms. To face up to the actual realities of the European Convention Act and the European authorized order may take time. However, once they fully acknowledged, it will be clear that under the UK law nobody has the authority to override or to set aside a law. It is no longer the case with the UK it remains to be valid. The membership of UK in the EU has indeed destroyed legislative supremacy. Bibliography Muylle, K. J. Improving the effectiveness of parliamentary legislative procedures; (Statute Law Review, 24 (169) 2003) Parliamentary Sovereignty: Contemporary Debates, By Jeffrey Goldsworthy, (Cambridge University Press 2010) European Union Law: Alina Kaczorowska (Routledge 2013) Politics UK: Bill Jones, Philip Norton, (Routledge 20 Jun 2014) Read More