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Parliamentary sovereignty. " Step, by step, gradually but surely, the English principle of the absolute sovereignty of Parliament which Dicey derived from Coke and Blackstone is being Qualified. (R(Jackson and others) v Attorney General . Discuss

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Introduction

'Our constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty is no longer, if it ever was, absolute ... It is no longer right to say that [Parliament's] freedom to legislate admits of no qualification whatever. Step, by step, gradually but surely, the English principle of the absolute sovereignty of Parliament which Dicey derived from Coke and Blackstone is being Qualified'. (R(Jackson and others) v Attorney General [2005] UKHL 56, per Lord Hope of Craighead). At the heart of the British Constitution lies the fundamental principle of parliamentary sovereignty. The sovereignty of the parliament is predominantly defined by Dicey as: "Parliament having 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 the right to override or set aside the legislation of Parliament"1. Further Dicey stated that there are three key rules that need to be followed for the Parliament to be absolutely sovereign and these are the following: Parliament can make or unmake any law; Parliament cannot bind its successors and most importantly that no one can question Parliament's laws. Historically the principle received statutory recognition in the Bill of Rights 16892 where it was stated: ""That the pretended power of super sending of laws, or the execution of laws by regal authority without consent of Parliament is illegal"3.The concept further received judicial confirmation by Lord Reid who stated: "It is often said It would be unconstitutional for ...read more.

Middle

As, it was established by the European Court of Justice in Costa v ENEL15: that EU law must 'prevail over incompatible member state law'. Of course, achieving this was impossible without undermining the principle of parliamentary sovereignty. In order to pursue its membership in the European Union the Parliament therefore passed the, ECA 1972 to recognise the EU law. Section 2 of the Act states, "All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties... are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in the law, and be enforced, allowed and followed accordingly". The words, "without further enactment" are crucial because they mean 'without Parliament'. Therefore placing limitations on parliamentary sovereignty. Sections 2(1) and 2(4) of the Act state that the provisions apply to 'any enactment passed or to be passed', meaning that the 1972 Act bounds the Parliament not only to the current but also to the future EU law thus restraining parliamentary sovereignty and more importantly contradicting Dicey's principle of 'Parliament not binding it successors'. Furthermore the EU provisions implemented in the form of 'Regulations' or 'Directives' have implications on the sovereignty of the Parliament. This is due to the fact that 'Regulations' are 'directly applicable' they do not need an Act of Parliament to come into force thereby supporting Lord Hope's assertions that undoubtedly, "sovereignty of Parliament .. ...read more.

Conclusion

These Acts have given the House of Commons dominant power because the executive government has since been able to pass Acts which the House of Lords has rejected but the Act has received Royal Assent. This was famously seen in the Attorney General v Jackson 21case where the plaintiffs deemed the Hunting Act200422 invalid on the bases that it validity derived from the Parliament Act 1949, which itself was invalid. Such fundamental alterations clearly differ from the Diceyan era and thus imply that parliamentary sovereignty has qualified. Finally it is important to analyse Lord Hope's question of was the Parliament ever sovereign in the 'absolute' sense. Seeing as, it has always been subject to political limitations. As, to become the executive government the winning party has to gain the maximum votes nationally to take leadership and thus it is in the interest of Parliament to only legislate those acts that would not cause an adverse public reaction . Due to the fact that the winning party is determined to gain as many votes as possible. Therefore challenging the entire existence of parliamentary sovereignty. On the whole it can be assumed that Lord Hope's assertion can be deemed as true. Parliamentary sovereignty has been clearly qualified and has literally lost its power as the supreme power. However because each factor that has limited parliamentary sovereignty has been as a result of an Act passed by the Parliament itself, it can be deemed that the Parliament can on 'paper' reclaim is sovereign power whenever it wishes to do so even if in practise this may seem difficult . ...read more.

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Here's what a teacher thought of this essay

4 star(s)

A good essay, addressing the issues related to the EC and HR. The Scotland Act 1998 might also have been mentioned.

Reference could also have been made to the Dworkin and Hart theories of law: integrity and positivism, respectively.

4 Stars.

Marked by teacher Edward Smith 05/09/2013

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