• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

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

Extracts from this document...

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.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Public Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

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

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Public Law essays

  1. Marked by a teacher

    Essay on the function of Judicial Review

    4 star(s)

    would have been in place prior to the enforcement of the HRA 1998. It is unsurprising to conclude that a piece of human rights legislation focuses primarily on the interests of the individual, although valuable elements of the control and normative functions are still present even if only as a side effect.

  2. Marked by a teacher

    There is no absolute separation of powers in this country, in a variety of ...

    4 star(s)

    be removed by a vote in both Houses for obscene altercations, it is accepted by all that this will be the case. The separation of powers does apply therefore within the UK, largely in the form of constitutional conventions, rather than codified documents.

  1. Marked by a teacher

    This paper will deal with the common law legal system as a legal transplant, ...

    4 star(s)

    A Brief History of Burma/Myanmar Pre- colonial Burma was a civil law jurisdiction. Native Burmese law took the form written law-texts (called dhammathats), interpreted and applied by specialist lawyers (called shene). Burmese law was not only a developed formal legal system; it was also a substantive law focused on alternative dispute resolution rather than formal litigation.

  2. Marked by a teacher

    Parliamentary Supremacy - the question of whether membership of the EU has diminished the ...

    4 star(s)

    Liverpool Corporation where Lord Avory held that the Acquisition of Land Act 1919 was impliedly repealed by the Housing Act 1925 and therefore he 'would certainly hold, until the contrary were decided that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions.6' Ultimately,

  1. Marked by a teacher

    Consider the view that the royal prerogative is insufficiently controlled by either Parliament or ...

    4 star(s)

    If a governmental behaviour is to be subject to control in the courts it is justiciable. Non-justiciable exercise of prerogative power is only subject to limited review, on procedural rather than substantive grounds. Matters such as appointment of ministers, dissolution of Parliament, grant of honours, treaties, and matters of state security are regarded as non-justiciable.

  2. Marked by a teacher

    UK constitution

    3 star(s)

    written constitution would not only provide a rigid means of protecting the people from the power of the executive, but also prevent the power of the government from being centralised, which is presently a major criticism of the government. As the UK has no written constitution it remains that our constitutional rules are flexible thus Britain's constitution is ever changing.

  1. 'The House of Lords should be abolished. The UK only needs one chamber of ...

    These members are sitting in the House merely by fortuitous birth. They are not democratic in any way and for them to be a part of the parliament of the UK goes against the nation's democratic principles. Whilst some might claim that the ousting of the remaining hereditary peers is

  2. Critically analyse if the European Convention on Human Rights and Fundamental Freedoms protect citizens(TM) ...

    One major issue with article 2 is that it does not give people who are terminally ill the right to be helped to die, which many feel it should10. This suggests that there are even aspects of article 2, an absolute article and the safest from interference from the state,

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work