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Parliamentary supremacy

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Introduction

The legal doctrine of the legislative supremacy of parliament had been discussed by many constitutional writers including AV Dicey a notably constitutional writer. Leading from his work there are 3 tests to assess the existence of parliamentary supremacy, firstly, Parliament is a supreme law making body and may enact laws on any matter; secondly, no parliament may be bound by its predecessor or bind a successor; and finally no person or body including a court of law may question the validity of Acts of Parliament. Therefore for Parliamentary supremacy to be still in existence the three tests should be satisfied. However there are many arguments suggesting that the developments in the UK constitution, including Devolution and British membership to the European Union show the erosion of parliamentary supremacy to a point where it is no longer as Jennings defines 'the dominant characteristic of the British constitution'. Devolution is a process that delegates power from a central to regional units. It has been defined as 'the delegation of central government without the relinquishment of sovereignty'1. The UK's devolution settlement is often described as having an asymmetric structure as many of the differences between Acts are almost greater than the similarities. ...read more.

Middle

Factortame, a Spanish fishing company appealed against the restrictions that the UK government placed upon them by the Merchant Shipping Act 1998 in UK courts. In 1990, as legally required the House of Lords ruling that they did not have the power to suspend Acts was referred to the European Court of Justice. The European Court of Justice ruled that national courts could ignore laws which contravened EU law. Therefore, the House of Lords ruled in favour of Factortame and the Merchant Fishing Act 1988 was struck down. This case clearly shows erosion of Parliamentary supremacy as the English Law courts have not acted in favour of a law created by Parliament. However we can interpret this in two ways, firstly as not being evidence of the fragmentation of parliamentary supremacy as parliament could repeal the European communities act. Although this is unlikely to happen as it would result in a loss of political sovereignty. For the UK to leave the EU it would be complex, economically damaging and ruin the reputation of UK within Europe. Secondly, this case is evident in showing that there is fragmentation of parliamentary supremacy, it is not the all powerful institution it was prior to joining the European Union. ...read more.

Conclusion

This is emphasised by Lord Nicholls in the case of Re v S7 'Interpretation of statutes is a matter for the courts; the enactment of statutes, are matters for Parliament'. In conclusion there is more evidence to show that parliamentary supremacy is being fragmented mainly through membership to the European Union. As discussed there is both evidence to satisfy and conflict the three tests for Parliamentary Supremacy. However, it can still be argued that Parliament is still a supreme body as it has the power to repeal an Act of Parliament or against the European Communities Act 1972. Leaving the European Union would be immensely damaging to the political status of the UK As recent reports suggest proposals for pan- European crimes would mean: 'that for the first time in legal history, a British government and Parliament will no longer have the sovereign right to decide what constitutes a crime and what the punishment should be'8 Prior to these legal developments it was argued in political science if parliamentary supremacy was split in to legal and political supremacy; legal supremacy has not been lost as Parliament retains all its theoretical powers. However, the recent developments that continue to diminish 'the right to make or unmake any law whatever' Dicey's concept of Parliamentary supremacy is undoubtedly weakening. ...read more.

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