Parliamentary Supremacy, The Structure and Functions - Coursework Example

 The doctrine of Parliamentary Supremacy ‘has been the very foundation of the British constitution since at least the latter days of the nineteenth century.’(Carroll, Constitutional & Administrative law, 5th ed) 2009. Parliamentary supremacy is an expression that explains that the Westminster parliament is legally entitled to pass, amend, or repeal any law it wishes to pass. Carroll states:” The theory of ‘continuing’ sovereignty, as explained by professor Dicey, is that there are no limits to the legislative competence of parliament is absolutely sovereign in its own time and may legislate as it wishes on any topic and for any place.”1 It is important to mention that parliament will consist of the commons, Lords, and the Monarch. If the House of Commons and the House of Lords pass the legislation and the monarch gives her royal assent, then no court or other body is said to have the legal power to declare the legislation invalid. This actually outlines why the term parliamentary supremacy has been used. Once parliament passes a piece of legislation, the court’s duty is merely to interpret the meaning of parliament rather than question how the legislation was reached. “ Judicial statements that the court must simply interpret and apply that which had been so enacted, and may not question the procedure by which these consents were given, represent, therefore, no more than the rule of recognition in practice.”2 He doctrine of the legislative supremacy of parliament has been so firmly established that it has scarcely been challenged in the courts. When Canon Selwyn made an application questioning the validity of the Royal Assent to the Irish Church Disestablishment Act 1869 as being inconsistent with the coronation oath and the Act of settlement, Cockburn C.J, and Blackburn J in refusing the application said:” There is no judicial body in the country by which the validity of an Act of parliament can be questioned. An Act of legislature is superior in authority to any court of law….and no court could pronounce a judgment as to the validity of an Act of parliament.”3 In Martin v O’sullivan4, Nourse J and the court of appeal refused to consider a claim that proceedings in thee House of Commons during the passage of the Bill which became the social security Act 1975 were invalid because the members of the House were all disqualified from sitting. There was, according to the judges, a fundamental answer to this case, namely, that a court only look at the parliamentary roll of statutes and if it appeared that an Act had passed both Houses of parliament and had received Royal assent it could look no further. Where a statute stipulates a particular procedure to its amendment or repeal, any breach to such procedure is invalid. In Attorney-General for the New South Wales v Trethowan5, the constitution(Legislative council Amendment)Act 1929, an Act of the New South Wales parliament provided that the parliament’s upper House could not be abolished except by a Bill approved in a referendum after completing its parliamentary stages. Following an election in 1930, New South Wales had changed the political completion of the state parliament. A Bill to abolish the upper House was approved by both Houses bur was never put to a referendum. An injunction was granted by the High court of Australia and upheld prevent the Bill going for the royal assent. It was held that since the Westminster parliament was sovereign and had decreed in the colonial laws validity Act 1865 that all colonial legislatures should legislate in accordance with such manner and form as might from time to time as required by an Act of parliament. It was necessary for the New South Wales parliament to comply with the procedure contained in the 1929 Act. In Harris v Minister of the Interior6, the South African supreme court refused to accept the constitutional validity of one of the pieces of legislation introduced by the post 1948 Nationalist government for the purpose of establishing apartheid. The current state of South Africa was given its first constitution by the South Africa Act 1909, an Act of the Westminster parliament. The Act sought to protect the political rights of Black citizens in the Cape province. S.152 did provide that they could not be removed from the electoral register except by a Bill passed by a majority of two-thirds of both Houses of the South African parliament. The South Africa’s most senior court held that since the South African parliament had been created and given its powers by the 1909 Act, it was bound to exercise its legislative powers in accordance with the Act’s requirements. Legislation seeking to alter the rights protected by s.152 was invalid unless the prescribed procedure was followed. It can thus be submitted that without a written document libeled as a ’British constitution’, parliament has been the very foundation of the British constitution in the process of legislating. On the other hand, it can be argued that the parliamentary sovereignty is merely self-embracing theory. Sir Ivor Jennings states:” Legal sovereignty is a mere name indicating that the established legislature has for the time being power to make laws of any kind in the manner prescribed by law……if this be so, the legal sovereign may impose legal limitation upon itself, because its power to change the law includes the power to change the law affecting itself.”7 Although parliament has the sovereign power to repeal and alter almost every piece of legislation, it can be argued that this legislative freedom might not apply to the very major statutes which brought about the political settlements which brought UK and its existing constitutional arrangements that are embraced today. A typical example, is the Acts of Union with Scotland in 1707. The Acts were enacted by the parliaments of England and Scotland giving way to one Kingdom by the name of Great Britain under Article 1. The Acts of Union with Ireland followed in 1800 creating the current United Kingdom of Great Britain. With the declaration that the Union was to last forever, it would be doubtful whether parliament would exercise such freedom on these major Acts. Furthermore, the joining of the EEC in the EEC Act 1972, parliament’s supremacy was to be on the balance. The UK’s membership to the EEC(now EU) may be arguably compromising the Westminster parliament to that of Europe. S.2(1) of the EEC 1972 Act does raise the concept of directly applicable EEC law into the UK law. The EEC Act 1972 further states that the European court of justice should be recognized on the final authority under EEC(EU law). That simply means that the exclusive supremacy that the Westminster parliament had enjoyed for centuries is being tested, if not being overtaken by the European parliament. “….for the purpose of all legal proceedings, any question as to meaning or effect of any of the Treaties or as to the meaning, validity or effect of any community instrument shall be treated as a question of law(and if not referred to the European court, be for determination on such in accordance with any principles laid down by the European court or any court attached thereto).”8 In Simmenthal SPA V Italian Minister for France9, it was held that every national court must…..apply community law in its entirety…..and must accordingly set aside national law which may conflict with it, whether prior or subsequent to the community rule. Carroll, A(2009,p.112) further states:” From this it was only a ‘short step’ to the view that s.2(4) of the 1972 Act was not intended solely as a rule of construction…. An expression of parliament’s willingness to effect a voluntary surrender of its sovereign legislative power…” The surrendering of power Carroll is referring to can be seen in R v Secretary of state for Transport, ex parte Factortame Ltd(No.1).10 The facts are that the applicant contended that the 1988 Act violated its rights under community law, particularly the right of establishment in Article 52 of the EC Treaty. The Divisional court referred the question of the Act’s compatibility with EEC law to the ECJ under Article 177 and, pending the ECJ’s decision, granted an interim injunction against the minister of transport, ordering that the Act should not be enforced. The court was claiming jurisdiction to suspend the operation of an Act of parliament. This had not happened before and, according to the traditional doctrine of sovereignty, was not something which an English court was competent to do. The ECJ’s ruling on the initial reference by the Divisional court, accepted the applicant’s contention that the disputed provision in the Merchant Shipping Act 1988 were inconsistent with community law and in particular, the right of establishment. The Divisional court had no option but to grant a declaration to that effect, following which the 1988 Act was amended(Merchant Shipping(Registration)Act 1931). Carroll, A(2009,p.115), seems to have a valid answer to the parliament’s current extent to the very foundation of the British constitution. “At the time of writing the doctrine of the unlimited legislative power of the Westminster parliament would appear still to be in place as the cornerstone of the British constitution. There are signs, however, that some judges may at least be prepared to contemplate whether the time is approaching when the doctrine should be recast to take account of changed political and constitutional realities…” There is very little doubt that the Westminster parliament is still supreme and in control as echoed by Lord Nicholls in Jackson v Attorney-General11. “These proceedings are highly unusual. At first sight a challenge in court to the validity of a statute seems to offend the fundamental constitutional principle that courts will not look behind an Act of parliament and investigate the process by which enacted……”12 In conclusion, it can be submitted that indeed, parliament has been the very foundation of the British constitution though this is been eroded by the European parliament. Bibliography Carroll, A(2009), Constitutional & Administrative law, 5th ed, pearson, London Pollard, D, Parpworth, N, & Hughes, D,(2001), Constitutional & Administrative law,3rd ed, Butterworths, London. Molan, M.T(2001), Constitutional & Administrative law,2nd ed,Old Bailey Press, London. Phillips, O.H, & Jackson, P(2001),Constitutional & Administrative law,8th ed, Sweet & Maxwell, London. Webley, L & Samuels, H(2009), Public law, Text, cases & materials, OUP, Oxford. Molan, MT(2001), Administrative law, 3rd ed, Old Bailey Press, London. Statutes Parliament Act 1911 Parliament Act 1949 Acts of Union with Scotland 1707 Acts of Union with Ireland 1800 Read More