Parliamentary Supremacy & the Judiciary - Report Example

Parliamentary Supremacy & The Judiciary Word Count 492 Background Judging by the strict interpretation of the concept of parliamentary supremacy, Parliament has an unfettered and unrestricted right to make any law that they deem fit1. However, there are some inherent challenges that come with this. In applying the concept of parliamentary supremacy, should judges just recognise parliaments laws? Or does the Judiciary have some responsibility to ensure constitutional significance? This paper examines the scope of the concept of parliamentary supremacy in relation to the judiciary. It identifies the main evidence that supports the fact that judges must accept the laws that parliament makes as well as evidence that points to the contrary. It also identifies other ideas that suggest that parliamentary supremacy is more than just making laws that must be obeyed by parliament. The Doctrine of Parliamentary Supremacy Dicey, in his effort to define the concept stated the following: “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament….has, under the English constitution, the right to make or unmake any law whatsoever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”2 From this statement, it can be gathered that Parliament has the supreme right in Britain to make laws that are binding on everyone in the land. This means that Parliament has two main privileges that no other body in the country has. First of all, Parliament can make any law that it deems fit. Secondly, an act of Parliament cannot be questioned by anyone in the country. Another component of the principle of Parliamentary supremacy is deduced from the case of Vauxhall Estate Ltd v Liverpool Corporation3 where it was held that the latest Act of Parliament should be used in a case. Thirdly the doctrine of parliamentary supremacy states that that a Parliament cannot bind a future Parliament from making certain laws. Judges therefore have the responsibility of interpreting what Parliament enacts into law. This has been demonstrated time and again in landmark rulings in Britain. In Edinburgh & Dalkeith Railway Co V Wauchope the defendant claimed that the Railway Act made by parliament should not be applied by the judge in the case because it had inherent deficiencies that could mar justice4. In his ruling, the Judge stated, that: “All that the Court of Justice can look to is the parliament roll: they see that an Act has passed both Houses of Parliament and that it has received royal assent and no court of justice can inquire into the manner in which it was introduced into parliament” This shows clearly that the Judiciary has a primary responsibility of just interpreting the laws that are made by Parliament and not question the appropriateness of the law. It appears that this ruling comes with some element of reasonableness because the two houses of parliament can be seen to possess an appropriate level of knowledge to debate and select the best laws that can seek the best interest of the land. And with the Crown approving of a law, there is no need for the judiciary to assess the appropriateness of each law. This therefore shows that the idea of parliamentary supremacy indicates that Parliament has the final say in deciding on which law should be made and the judiciary just has to apply it to cases. This position is consolidated further by the case of Martin V O’Sullivan where a self-employed litigant argued that there were inherent ambiguities in the Social Security Act of 1975 which when applied in the strict sense, made it illegal for MPs to occupy State office5. The judge again held that the court can only look into the parliamentary roll to interpret in every case but could not question how the law is made. This case shows clearly that the courts can only deal on each case in an isolated manner and match it directly with the relevant laws made by Parliament. Constitutional Constraints & Parliamentary Supremacy The British constitution, although unwritten, is made up of a collection of laws that collectively define the legal system. Although Acts of Parliament is a significant, and proactive component of these legal streams, it is NOT the only legal unit of Britain6. There are some other sources of law like Common Law, Equity, jurisprudence, public law, delegated legislation, professional legal codes which cannot be possibly covered by any parliament in any term. This shows that there are other elements of law that operate side-by-side with parliamentary statutes to define the constitution of Britain. It therefore means that in applying the law, the judiciary might need to take cognisance of all these different legal components before passing judgements. However, supporters of parliamentary supremacy can argue that those laws exist because parliament finds them appropriate. Thus, desisting from repealing any component of the law means that parliament has impliedly accepted it and thus retain their supremacy in determining what should and should not be applied in Britain. That notwithstanding, we learn in the case of Entick v Carrington (1765) that government must act within limited power7. Also, we learn from R v Horseferry Road Magistrates’ Court, ex parte Bennett8 that Parliament, like any other authority in state needs to work within the law of Britain. This therefore means that parliament cannot be fully sovereign. There are limitations determined by the constitution of the land that prevents them from operating ultra vires. In liberal democracies like the United States, the concept of judicial review places a major constraint on the supremacy of parliament9. Mortons indicates that the concept of judicial review to be steeped in the fact that the review aims at examining written constitutions and correcting issues with the wording of laws and thereby prompt amendments. However, due to the fact that Britain does not have a written constitution, there is no room for judicial review, although Parliamentary statutes are written!10 Blondel identifies that the closest to judicial review is the Judicial Committee of the Privy Council which plays “an important role before the partriation of the constitution in setting important political and constitutional issues...”11. This shows that although Parliament is supreme in making laws, there might be times where the judiciary might be directly involved in the review and analysis of laws before they are passed. This therefore limits the idea of parliamentary supremacy. Parliamentary Acts that Limit Supremacy of Parliament Also, there are some instances where Parliamentary Acts can limit the supremacy of parliament. Two main Acts adopted by Parliament provides a limitation to the scope within which the sovereignty of parliament is invoked in court cases: European Communities Act 1972 and Human Rights Act 199812. In the Factortame case, the Secretary of State refused to register some Spanish vessels under UK law13. However, the vessels appealed. It was held by the court that the European Union Law which prohibited discrimination superseded the UK Act of Parliament that made the registration of the Spanish vessels illegal. Again, supporters of parliamentary supremacy can quote Lord Hailshams pronouncement when the European Bill was being examined in parliament in 1972: “It would be impossible to devise an Act of parliament … which destroyed the sovereignty of Parliament, because theoretically, the Act which destroyed it can subsequently be replaced or amended by a subsequent parliament. The doctrine remains absolutely unaffected by anything in the Act”14 This statement clearly shows that the British parliament decided to adopt the EU laws. It could therefore opt out at any time. Technically, this means that although EU law might supersede British parliamentary law, it does not in any way affect parliamentary sovereignty. However, in the courtrooms, the judiciary will always have to honour EU laws in cases where it conflicts with Acts of Parliament. Also, through the EU Laws, the adoption of the Human Rights Act of 1988 places a limitation on the interpretation of law in Britain. In a landmark case, the court found that evidence attained overseas through torture could not be used in UK courts because it was against EU laws15. Conclusion Although parliament has the right to make any law and judges must accept it, there are some notable exceptions which require the judiciary to look t constitutionally significant matters in passing judgement. There are numerous sources of law other than Parliamentary act that judges must be sensitive to like Common Law, Equity (Royal Prerogatives), Jurisprudence and others before passing judgements. Also, European Union law and the Human Rights Acts seem to supersede parliamentary statutes in the interpretation of the law. In a seemingly isolated matter, the Privy Council can have some involvement in the drafting of very important laws by Parliament. All these situations require the judiciary to honour the constitution and not just parliamentary sovereignty. Annotated Bibliography [1] Blondel Jean, Budge Ian & McKay David Developing Democracy: Comparative Research in Honor of JFP Blondel (Chapter 6: London: SAGE Publication 1994). These are lectures on the elements of the way democracy developed in Canada and how it matches up with the legal systems of Britain, United States and other British Commonwealth nations. The idea of judicial review, which is a big part of Canadian law and conspicuously missing in American law is discussed in Chapter 11, which forms a major part of this paper. [2] Dawn Oliver. The Changing Constitution (3rd Edition OUP 2010). This book espouses the idea that the constitution is a living document. It therefore attempts to examine the areas within which these dynamics occur and provides a broad range of readings on this topic. Chapter 42 examines the idea of the absolutism of parliament. It therefore raises the major cases and situations in contemporary times where the supremacy of Parliament could be played down by the judiciary. [3] Dicey Albert Venn. The Law of the Constitution (1885) pp. 39-40 (Reprint: Indianapolis: Liberty Classics 1982). This is one of the landmark works and influential books written on the British Constitution. It examines how the three arms of government interact in Britain and form the basis of the English legal system. [4] Great Britain Parliament. The EU Bill & Parliamentary Sovereignty: Written & Oral Evidence (Annual UK Government Publication no I19/2010, London: The Stationary Press 2011) This provides an analysis of current and emerging issues in the UK legal systems and structures. This edition examines the current conflict between UK and EU Laws. The section by Lord Hailsham is always quoted to show the supremacy of parliament and the fact that it cannot be lost by parliament in European Union cases. [5] Mitchell Andrew. AS Law (3rd Edn: London: Routledge Publishing 2008). This book covers the fundamental and basic components of law. Although it is written in a very basic form, it is able to describe the components and historical elements of English Law. It show the position and limitation of the legislature in English law. Chapter 3, which gives details of how laws are made in the UK, provides a good background for discussions on the importance of constitutional democracy. [6] Morton, Fredrick. Lee. Law Politics & Judicial Process in Canada (2nd Edn University of Calgary Press 2002). In this book, Morton examines the elements of the Canadian Judicial Process. He does well to include a comparative analysis of Canadian legal processes in relation to American and British legal structures. It makes clear distinctions about where Canadian law differs from these two influential legal systems that have a bearing on Canadian law. The Chapter on Judicial Review showed a very interesting contradiction which shows that although Britain is the mother of constitutional democracy in liberal nations, it does not have a system of judicial review, thereby giving parliament almost unfettered powers. [7] Weir S & Beetham D. Political Power & Democratic Control in Britain (London: Routledge Publishing 1999). This book examines the concept of parliamentary supremacy in the larger concept of the rule of law. It discusses how the different branches of law interact to ensure that laws are made and interpreted to cover relevant legal requirements of the nation. Weir and Beetham provide the basis of the interactions of the arms of government in Britain, where the law is mainly unwritten. List of Cases [1] A and others v Secretary of State for the Home Department [2005] HL [2] Edinburgh & Dalkeith Railway Company -v- John Wauchope [1842] UKHL 710; 8 ER 279; (1842) 8 Cl & F 710 [3] Entick v Carrington (1765) 19 St Tr 1029 [4] Martin v. OSullivan [1984] S.T.C. 258; 57 T.C. 709, CA [5] R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] AC 42, HL [6] R v Secretary of State for Transport, ex parte Factortame Ltd [1989] 2 CMLR 353, QB [7] Vauxhall Estates, Ltd. v. Liverpool Corporation [1932] 1 KB 733 List of Statutes [1] European Communities Act 1972, [2] Human Rights Act 1988 Read More