Parliamentary Sovereignty Issues - Coursework Example

Parliamentary Sovereignty

• Brief outline of the separation of powers

Aristotle was the first person to identify the need of a distributed and well-organized state power. On the basis of this thought, the reputed Greek philosopher structured a theoretical framework, highlighting the three core elements of the constitution. During the 18th century, the term ‘separation of powers’ was firstly coined by a French political and social philosopher. It is evident that the ‘separation of powers’ refers to a proper segregation in case of government responsibilities. The main objective behind formulation of such concept was to restrict one branch from performing core functions of a different branch. Since, the era of Greeks, a major area of concern has been safeguarding citizens from the arbitrary power exercised by the state/ruler. The Greek Revolution (1821) had initiated the need to incorporate an organizing principle within the constitution. Precisely, this form of rebellion had taken place in the Ottoman Empire, where revolutionists were struggling so as to establish independent kingdom. For several centuries, Greece was basically under the rule of the Ottoman Empire. Therefore, this struggle was inclined towards obtaining independence. It was argued by many scholars and philosophers that the citizens can be protected through separating the power of nation states. In this context, there were three bodies structured to exhibit state’s operations, such as judiciary, legislature and executive.

• The Three Powers

Executive

The executive organ of the UK constitution consists of government including cabinet and prime minister, together with civil service, police and local authorities. Pre-separation era, the government used to be influenced by Monarchy but now a symbolic and sovereign government has been formed. The major responsibility of executive is to develop and implement effective government policies in the country. Their areas of concern are implementation of legislation, betterment of economic and social welfare, enhancing domestic and international security, maintaining public service administrations and foreign relation.

Legislature

In United Kingdom, the term “the Queen of the Parliament” refers to the legislative organ of the constitution and they are mainly responsible for making new laws and revising existing laws according to the present and future requirements for the development of the economy. This wing of the constitution consists of the Parliament and those with the delegated powers. Before separation of power, when a new law used to be developed, generally the House of Commons and Lords approved the Bill and then the law used to receive a Royal ascent. But according to the U.K. Parliament Act 1949, a new legislation can be enacted even though it does not get the Royal approval from the House of Lords. However, the new law can only be enacted after twelve months from the day of rejection.

Judiciary

The Judiciary part of the U.K. constitution refers to the Courts of Law, judges and magistrates. The judges who are supreme of the judicial offices in tribunals and the magistrates’ courts are staffed by the magistrates. The major function of the judiciary wing is to evaluate the disputed question of fact or incident and laws made by the Parliament, enacted by courts and practiced by criminal and civil courts in the country.

• Parliamentary Sovereignty: Why is Parliament sovereign?

Parliamentary sovereignty is one of the defined principles of the U.K. constitution. On the basis of this principle, it can be stated that in U.K., the supreme legal authority is the Parliament. The Parliament possesses rights to either end or create any particular law. On the other hand, the courts are also not permitted to overrule the legislation set forth by the Parliament. There are three institutions embedded in the state, out of which the Legislature is regarded to be sovereign/supreme. It is sole responsibility of the legislative institution to establish the laws which shall be exhibited by the Executive and used by the Judiciary. There are certain reasons behind why Parliament is sovereign. This is simply because it possesses the mandate and is elected by individuals. The opinion of the majority population is reflected though elections. Since people are electing, they even has the power to change it or even recall it. The Parliamentary Supremacy Doctrine was established by A. V. Dicey during the 19th century. A traditional viewpoint was put across by A. V. Dicey claiming that the Parliament possessed the power to structure any law, apart from any legal statute which is closely knitted with its successors.

• Dicey

A classic piece of research work, “Introduction to the Study of the Law of the Constitution”, about the twin pillars of constitution of Britain was written by a highly influential and qualified lawyer and constitutional research scholar in the year 1885. His name is Albert Venn Dicey (1835-1922) who was a famous constitutional theorist and British jurist. His book made him widely known in whole European continent at that period. The main principle expounded by him through the book was the un-codified constitution of The Great Britain with a doctrine of parliamentary sovereignty. The book is considered as one of the important parts of the British constitution and he developed the basic and essential framework for making laws by the Parliament in accordance to the constitution. Dicey positioned the law as the most important priority in the society as he personally believed that no person in the society is above the law and there needs to be some intangible factor that can control the limit of any activity of human beings. Dicey’s in-depth analysis of the British constitution contoured the political environment at the start of twentieth century. He started supporting British imperial colonialism very strongly at the end of his career. Few of the Dicey’s other notable works apart from the Law of the Constitution are The Law of Domicil (1879), The Privy Council (1887) and the Public Opinion in England (1905).

• Case Law:

There is no legal constraint linked with the legislative power exercised by the U.K. Parliament. In, it had been proved that the judicial body does not have the right to question any law established by the Parliament. An Act of the Legislature can be regarded as superior compared to the court of law. Dicey has argued that the Parliamentary Power might also encounter several restrictions. In a democratic society, the major purpose of the government is to consider well-being of the society. Hence, the Parliament also needs to deal with the extrinsic and intrinsic limits of power. Arguably, in the given case scenario, the court was not allowed to question the Act of Parliament. On the contrary, the courts also do not possess any such power to classify an Act of Parliament as unconstitutional. There is no such U.K court competent enough to raise questions against a law established by the Parliament. Therefore, it has been standardized that the court does not have the power to question validity of the legislative act.

• Implied and express repeal

The term “repeal” stands for destruction or abrogation of a law set forth by the Legislature. Implied repeal indicates that an Act of Parliament is in conflict with the previous one. On the other hand, express repeal takes place when express words are deliberately used within a legal statute in order to repeal a previous statute. According to the doctrine, Parliament cannot be bound by any earlier Parliaments or even bind its successors. The aspect of ‘implied repeal’ is expected to emerge in accordance with the second element of the doctrine. It can be stated that the new government election can completely eradicate the Act which might bind powers of the new elected government. Act can be defined as the victim in context of the implied and express repeal. U.K. law is usually considered to be subordinate of the wider EU law framework. In majority of legal cases, decisions are greatly influenced by implied repeal. On the contrary, express repeal can be related to constitutional significance. The cases which hold constitutional significance need Parliament to cast vote in order to repeal them. Arguably, act can be protected by involving the European Court of Justice for handling appeals filed by individuals who were not treated adequately. The above mentioned principle would certainly help in confirming that the EU law even prevails within the domestic legal framework.

• Limitations on parliamentary sovereignty

Parliamentary sovereignty is often considered to be the supreme power prevalent within a society. However, there are certain limits which are imposed on parliamentary sovereignty. Human Rights Act 1998 is one of the statutes which limit power of the parliamentary sovereignty. In scenarios where the court is unable to properly interpret statutes in relation to lack of compatibility with the Convention rights, there is a provision to put across a declaration under section 4 HRA 1998. is one such case where the Parliament and the government were criticized. As per the case, the statute framed by the Parliament required proper amendment. To a great extent, the changing legal landscape is certainly demanding for some inner parliamentary discussions. It can be argued that the Human Rights Act has definitely transformed the relationship between the Parliament and the court. Section 3 and 4 of HRA clearly specifies that the court has the power to restrict overall autonomy of the Parliament in context of legislative process. Parliamentary sovereignty also encounters limitations in the form of inability to design laws which cannot be further changed by the future Parliaments. Another limitation also prevails in relation to devolution of powers to different geographical regions in the U.K.

• EU Law and Parliamentary Supremacy

The major limitation on the Parliamentary supremacy is exercised by the EU Law. The clearly states that when there is a high degree of conflict between the Community law and the domestic law, then the former legal framework needs to be taken into account. In such cases of conflict, the European Court of Justice is assigned the duty of dealing with the case. is a prominent case law which can be considered for analyzing the limitation imposed on the Parliamentary supremacy. This case revolved around Italy and the decision was undertaken prior to U.K. becoming a part of the European Community. As per the judgment, the community law holds relatively more importance in comparison to national law structured by the member states. It is evident that if there is some form of conflict between the European law and the U.K. law, then the European law shall be denoted as sovereign.

The Treaty of formation was incorporated into the U.K. law with the support of the ECA. There are different provisions which have been introduced by the ECA. Section 2(4) laid emphasis on two important elements, i.e. evaluating compatibility with the conventional rights and proper interpretation of the domestic laws. As per this legal statute, EU rights would be given privilege only when the domestic laws are properly interpreted or scrutinized by the European Court of Justice. The legal principle is inclined towards exploring the domestic source of the law so as to ensure that no conflict emerges between the EU and domestic law.

• Factortame

Factortame basically refers to group of cases. The Merchant Shipping Act (1988) had framed certain requirements, specifically for the non-U.K. fishing boats. Since, these boats were found to contravene well-defined EU rights related to free movement. As per this Act, non-U.K. fishing boats were not eligible to utilize the right of free movement. Firstly, the case was pronounced in front of the House of Lords. However, later this case was forwarded to the European Court of Justice. In the given case scenario, the interim relief decision was accepted by the domestic court, which required some amendments to be made in the existing law. Hence, the outlined scenario denotes that the EU law is given more preference compared to the national law.

• Human Rights Act 1998 (HRA 1988) (1)

In 1950, the European Convention on Human Rights (ECHR) was incorporated with the main objective of preventing occurrence of any war. During the introduction of this framework, U.K. was considered to be the first signatory. Arguably, when some convention is introduced, it needs to be incorporated within the national law else it would not be considered. As in case of ECHR, the European Court of Human Rights (ECtHR) was also simultaneously established in order to enforce some rights. However, this legal body was completely distinct from the ECJ and the EU. Though U.K. was regarded as the first signatory, but the Convention was not included within the national law. After 1966, there were provisions made by which individuals could place their appeal in the European Court of Human Rights. It was observed that decisions made in such court were often ignored because they were not binding to the U.K. law.

• HRA 1998 (2)

The ECHR was incorporated into the U.K. law by HRA (1998). Prior to implementation of this principle, there were limited powers which could be exercised by the court. HRA (1998) provided new set of powers, using which responsibilities of courts would not be limited to applying laws passed by the Parliament. According to section 3 of HRA (1998), the statutes should be interpreted by the court in a manner that it is highly compatible with the ECHR rights. Section 4 addresses the issue of incompatibility by stating that a declaration can be passed in such scenario, influencing Parliament to make the necessary amendments to the legislation. However, Parliament is not bound to change the legislation in any circumstance. On the other hand, when a new statute is introduced within the system, then the minister needs to clarify why a particular statute is compatible or incompatible with ECHR. Hence, compared to ECA 1972 s2 (4), HRA (1998) relatively exhibits less control over the Parliamentary Supremacy.

• Devolution

In 1997, the mechanism of devolution of powers was conducted over some newly elected assemblies situated in Northern Ireland, Wales and Scotland. On the basis of this mechanism, they were allowed to pass laws in certain geographical areas. Arguably, there are some theoretical powers which have been retained by the U.K. Parliament. For instance, Section 28 (7) belonging to the Scotland Act 1998 clearly signifies that some laws are still under the U.K. Parliament and are not yet devolved. There are instances where the Northern Ireland Assembly has remained suspended by the U.K. government on different occasions. Though, exclusion of rights in real-time scenario is a problematic aspect. It can be argued that in the mentioned areas, there are restrictions imposed on the Parliamentary sovereignty. However, the scenario can be smoothly overturned only through orders passed by the Queen in Parliament. In any given scenario, the Parliament still do possess the power to repeal HRA, the Scotland Act and the European Communities Act.

• Conclusion

From the above essay, it can be concluded that the statement given by Lord Neuberger is highly relevant. The statement denotes the exact description of the Parliamentary status in U.K. where Parliament has been allocated the right to introduce new laws or even eradicate some laws as and when required. The laws passed by the Parliament would be automatically regarded as the fundamental rights which can be explored by citizens. In general context, it can be witnessed that there is a constitutional framework to safeguard fundamental rights, however, U.K. do not have a separate constitution.

Judiciary

The Judiciary part of the U.K. constitution refers to the Courts of Law, judges and magistrates. The judges who are supreme of the judicial offices in tribunals and the magistrates’ courts are staffed by the magistrates. The major function of the judiciary wing is to evaluate the disputed question of fact or incident and laws made by the Parliament, enacted by courts and practiced by criminal and civil courts in the country.

• Parliamentary Sovereignty: Why is Parliament sovereign?

Parliamentary sovereignty is one of the defined principles of the U.K. constitution. On the basis of this principle, it can be stated that in U.K., the supreme legal authority is the Parliament. The Parliament possesses rights to either end or create any particular law. On the other hand, the courts are also not permitted to overrule the legislation set forth by the Parliament. There are three institutions embedded in the state, out of which the Legislature is regarded to be sovereign/supreme. It is sole responsibility of the legislative institution to establish the laws which shall be exhibited by the Executive and used by the Judiciary. There are certain reasons behind why Parliament is sovereign. This is simply because it possesses the mandate and is elected by individuals. The opinion of the majority population is reflected though elections. Since people are electing, they even has the power to change it or even recall it. The Parliamentary Supremacy Doctrine was established by A. V. Dicey during the 19th century. A traditional viewpoint was put across by A. V. Dicey claiming that the Parliament possessed the power to structure any law, apart from any legal statute which is closely knitted with its successors.

• Dicey

A classic piece of research work, “Introduction to the Study of the Law of the Constitution”, about the twin pillars of constitution of Britain was written by a highly influential and qualified lawyer and constitutional research scholar in the year 1885. His name is Albert Venn Dicey (1835-1922) who was a famous constitutional theorist and British jurist. His book made him widely known in whole European continent at that period. The main principle expounded by him through the book was the un-codified constitution of The Great Britain with a doctrine of parliamentary sovereignty. The book is considered as one of the important parts of the British constitution and he developed the basic and essential framework for making laws by the Parliament in accordance to the constitution. Dicey positioned the law as the most important priority in the society as he personally believed that no person in the society is above the law and there needs to be some intangible factor that can control the limit of any activity of human beings. Dicey’s in-depth analysis of the British constitution contoured the political environment at the start of twentieth century. He started supporting British imperial colonialism very strongly at the end of his career. Few of the Dicey’s other notable works apart from the Law of the Constitution are The Law of Domicil (1879), The Privy Council (1887) and the Public Opinion in England (1905).

• Case Law:

There is no legal constraint linked with the legislative power exercised by the U.K. Parliament. In, it had been proved that the judicial body does not have the right to question any law established by the Parliament. An Act of the Legislature can be regarded as superior compared to the court of law. Dicey has argued that the Parliamentary Power might also encounter several restrictions. In a democratic society, the major purpose of the government is to consider well-being of the society. Read More