General Principles of Law
Info: 1192 words (5 pages) Essay
Published: 8th Aug 2019
Jurisdiction / Tag(s): UK Law
The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom..." (Lord Steyn in R (Jackson and Others) v. Attorney General)
Discuss.
Parliamentary sovereignty refers to the absence of any legal constraint upon the legislative power of the United Kingdom Parliament. The definition is given by A.V Dicey (Law of the Constitution, pp. 39-40): 'The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined (Queen, Lords, Commons) has 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 overrule or set aside the legislation of Parliament.' This absence of legal restraint has three aspects; the positive that Parliament can legislate on any subject matter. The negative; that once Parliament has legislated no court or other body can deny the legal validity of the legislation. And no individual Parliament is bound by its predecessors or can bind its successors. C J Cockburn in ex parte Canon Selwyn 1872 "There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An Act of the Legislature is superior in authority to any court of law." In contrast, Dicey says, sovereignty is 'limited on every side by the possibility of popular resistance'[1]. This view is a living instrument because we live in a democratic society. The purpose of the government is to serve for the people. As we elect them, Parliament's power is limited. It does not necessarily mean that parliament has absolute power to legislate but has intrinsic and extrinsic limits of power. Courts cannot interfere with mode in which an Act of Parliament was introduced and once it has been passed and is on the Parliamentary Roll it cannot be challenged by the courts as seen in Edinburgh & Dalkeith Railway Co v Wauchope 1842. The Courts positively asserted Parliamentary Sovereignty and were unwilling to interfere - but the Courts have no power to declare an Act of Parliament unconstitutional: BRB v Pickin[2] "The Queen in Parliament is competent, according to United Kingdom law, to make or unmake any law whatsoever; and no United Kingdom court is competent to question the validity of an Act of Parliament." However the courts have been willing to question the validity of Acts of Parliament recently, this is in contrary to Dicey's view on parliamentary sovereignty. The Queen in Parliament by convention can have the power to make or unmake law; nevertheless this convention has not been practiced recently. The traditional view of parliamentary sovereignty is seen 'under pressure' as Elliot, M. (2004)[3]has phrased it .This is especially in European Law and with the introduction of the Human Rights Act. Limitations on Parliamentary Sovereignty are that Parliament's power to legislate - or rather the Government's power to make the laws it wishes, is therefore limited by:-
- Public opinion
- Membership of the European Union, International law
- Acts of Union
- Doctrine of Implied Repeal
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