The doctrine of parliamentary sovereignty - Essay Example

The work is devoted to the discussion of the doctrine of parliamentary sovereignty, which has for long been the of active arguments, and its role and possibility of adopting the constitution, which will be entrenched against future alterations and will be capable of effectively limiting the executive power and the power of legislatures. The main conclusion of the work is that the doctrine of parliamentary puts unlimited power on Parliament, depriving the courts of their legal rights to abolish certain laws and acts, and making them bound to the need of applying any laws passed through Parliament, thus the possibility of adopting of the constitution which will be entrenched against further amendments, as well as putting certain limitations on the executive and legislative powers is rather vague. The doctrine of parliamentary sovereignty For Professor Dicey, the author of the most popular and authoritative work on the British constitutional law, the parliamentary sovereignty was 'the dominant characteristics of our political institutions' and meant, that according to the constitutional system of Great Britain, the Parliament had the right to 'make or unmake' any laws, and that the English law didn't acknowledge the right to ignore or break the laws adopted by the Parliament by any person or establishment in the country. (Dicey, 1996) The urgent question is whether the existing doctrine may assist in adopting the constitution, which would be entrenched against the future amendments and would effectively limit the executive and legislative power in Britain. In this connection it should be mentioned, that despite the fact, that the doctrine is supposed to be the basic principle of the British constitutionalism, it has been recently admitted, that the doctrine becomes more and more inappropriate and unacceptable in the constitutional context, changing because of the British membership in the European Union, higher accents at the human rights and the transition of the legislative rights to the regional legislatures. Despite the absence of the fixed constitutional frames in the written form, which would limit the British Parliament' activity, it has long been admitted that it is impossible to take any political measures for limiting legislative or executive powers. However, it is essential to note, that the British Parliament is now more limited in its rights not on the judicial, but on the political reasons, and the sphere in which it is not able to implement its unlimited powers is increasing. 'When Dicey published The Law of the Constitution in 1885 he defined parliamentary sovereignty as meaning that, 'Parliament has, under the English constitution, the right to make or unmake any law whatever; 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.' (Elliott, 2002) Simultaneously, it is essential to note, that any constitution without future amendments can hardly be adopted in the light of the existing Doctrine. The possible proof for such assumption may lie in the explanation as for the role of courts in the doctrine of Parliamentary sovereignty, which shows that the courts are not able to protect the absurd laws from being adopted, if the process of passing it through the both houses of Parliament has been transparent and legal. 'It has therefore been established that Dicey's doctrine of parliamentary sovereignty is, in theory, true. Parliament, it seems, can make or unmake any law it wishes and no person or body can set aside or override such legislation. However, whether this is actually true in practice remains to be seen.' On the other hand, it is also notable, that when the judges find enough competence and ability to interpret the Parliamentary statutes and acts, it hardly serves for the benefit of the society, as the laws and acts are usually written in such ambiguous wording as to adopt its interpretation to the specific situation; though taking into account the predominance and superiority of the European law above the British one, it should be mentioned, that Parliamentary sovereignty in Britain is being under question, though until present time it has been unthinkable that the courts would refuse to adopt and apply the acts adopted by the Parliament. The active arguments have been initiated in the Parliament in the 1996 and 1997 with the adoption of the Human Rights Bill, in connection with which the debate as for the relationship between the three branches of the power arouse. Lord Irvine of Lairg criticised the statements by the senior judges in relation to the possible limitations of the executive and legislative powers, as well as the possible rights of the judges to abolish certain acts. Some senior judges have also been criticised for having challenged the doctrine as being unwise and obsolete. The bigger portion of Lords in the Parliament has affirmed the superior role and unlimited power of the Sovereignty Doctrine. The adopted Human Rights Bill (1997) has been accompanied by the White Paper, which stated that the 'power to invalidate Acts of Parliament is something which under our present constitutional arrangements the judges do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament. There is no evidence to suggest that they desire this power, nor that the public wish them to have it'. (Parliamentary Debates, 1997) In the light of everything written above, the possibility of adopting strong constitution and limiting the legislative and executive powers seems to be unreal. The doctrine of Parliamentary sovereignty presupposes that Parliament has unlimited and ultimate authority in determining how the laws should look like, how they should be adopted and how they should work. Though to declare and to decide the forms and the roles of laws is under the judicial power jurisdiction, the courts and judges are bound to the necessity to apply and accept any Parliamentary Act; even in the view of the courts' right to change the common law, they are not apt to do so, as the common law is subordinate to the statute law, which is not to be changed by courts. Thus, in the view of the necessity to adopt the constitution which would be entrenched against further amendments, accounting the information mentioned in this work, it should be admitted that it will hardly be possible to adopt such document, with the impossibility of courts to deny the adoption of the inappropriate and absurd acts of Parliament, with its unlimited power. Certain critics argue as for the possible conflicts between the British and European law after Britain having become a member of the European community in 1972. The superiority of the European law over the British one is not subjected to any doubts, though even in this context the unlimited legislative and executive power is hardly to be decreased, and this is again connected with the inability of the British courts to abolish any Acts, which they are bound to interpret as being in agreement with the similar European legislative norms. 'The cases of Garland v British Rail Engineering Ltd [1983] 2 AC 751 and Pickstone v Freemans plc AC 66 show clearly how judges apply a 'purposive interpretation' to English statutes to make them conform. It is unclear however what would happen if Parliament enacted a statute in direct conflict to European laws. Although this is unlikely to happen on political grounds it seems English judges would be bound to apply a conflicting UK statute irrespective of European laws.' (Munro, 1999) Thus, even in the light of the European needs and realities, British Parliamentary sovereignty is the main obstacle for the country to adopt the constitution which would work not for Parliament, but for public. In this process the courts are in direct cooperation with Parliament, in its need to keep its powers and abilities to pass and apply the necessary acts and laws; and with the ability of Parliament to apply its unlimited powers, the constitution will regularly be amended in correspondence with the current political situation and the aims and needs of the leading political party. Conclusion It is evident, that the Doctrine of Parliamentary Sovereignty in its traditional form is being subject to the higher and higher pressure, and this phenomenon is most clearly seen through the British European community membership. Though formally European law possesses superiority in Great Britain, the judges are united in their views as for the need in reconsideration the doctrine itself. With the existing unlimited power of Parliament and inability of the courts to regulate the process of adopting the Acts and Laws, it is hardly possible to adopt the constitution which would be entrenched against the future alterations with the limitation of the executive and legislative powers. It is necessary to reconsider the theory of doctrine, to make it closer to reality, when the parliament will lose part of its unlimited powers and admit the superiority of the European law. To adopt such constitution, the Parliament should not possess such superiority as it possesses at present, as the price for such superiority may be equal to the membership in the European structures. The constitution should be adopted, and the powers should be limited; the parliamentary sovereignty cannot exist as an island, not touched by the radical changes in perceiving the human rights and redistribution of the state authorities among the legislatures as a result of the devolution process. The theory should go in accordance with the changed, taking place in the society, and only in this situation it will be possible to adopt the necessary constitution. It may be predicted, that such changes will take place with time, though it is evident that this process will be slow and difficult, as the need to overcome the resistance of the legislative and executive establishments in the country may only happen in the light of the more essential issues and urgent needs. Accounting the present situation, even European structures are not able to initiate the adoption of such constitution and limitations due to the fact that he courts 'are still answering to the parliament', though it may also be viewed more as a matter of choice, than obligation. References (1) Allan, T. (1997). Parliamentary sovereignty: law, politics and revolution. The Law Quarterly Review, vol. 113, 443-452 (2) Craig, P. (1991). Sovereignty of the United Kingdom Parliament after Factortame. Yearbook of European Law, vol. 11, 221-255 (3) Dicey, A. (1996). An introduction to the study of the Law of the Constitution. London, McMillan. (4) Elliott, M. (2002). Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention. Legal Studies, vol. 22, 340. (5) Goldsworthy, J. (1999). The sovereignty of Parliament. Oxford, Clarendon Press. (6) Laws, J. (1995). Law and democracy. Public Law, 72-93 (7) Munro, C. (1999). Studies in Constitutional Law. London, Butterworths, p. 135 (8) Parliamentary debates, Fifth series. (1997). House of Lords, vol. 572, 1254-1313. Read More