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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 ‘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”. 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 1689 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”.The concept further received judicial confirmation by Lord Reid who stated: “It is often said It would be unconstitutional for the UK Parliament to do certain things meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things: But that does not mean that it is beyond the power of  Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid”.

However the orthodox doctrine of ‘absolute’ parliamentary sovereignty is now claimed to be a phenomena of the past and incompatible with the new, modernised, British constitution. It has been again and again stated that though the British Parliament will never lose it supreme status within the constitution itself; it is no longer true to state that: “No court within the United Kingdom can set aside an Act or Parliament”.  Evidence of this is present in the courts decision in the case of R v Secretary of state for Transport, ex parte Factortame Ltd where the The European Unions's (EU) Common Fisheries Policy set aside the Merchant Shipping Act 1988 . Furthermore, the Supreme Court Judges are able to set aside Acts of Parliament and contradict the Act in their verdict. The contention that parliamentary sovereignty is, has and will continue to be qualified can be best summed, in the words of Lord Hope: “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”. In order to effectively examine this assertion made by Lord Hope we can focus on the following factors which have had significant impact on parliamentary sovereignty: The European Communities Act 1972 (ECA), the incorporation of the European Convention of Human Rights (ECHR); The Parliament Acts 1911 and 1949 and last but not the least the scheme of devolution enforced by the Scotland Act 1998 and Government of Wales Act 1998  .  

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On the one hand, it is clear that parliamentary sovereignty is a major characteristic of the British Constitution and still lives on today without any theoretical or practical limitations. The most recent example of this can be the, Terrorism Act 2006  whereby someone can be kept in detention without trial whereas an earlier example can be the War Damage Act 1965 where the Parliament legislated retrospectively. Although these Acts were deemed as against international law and thus heavily criticised as unconstitutional there was no higher supreme authority that could question or stop the Acts from passing. Therefore in this instance Lord ...

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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.