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Parliamentary Supremacy as the dominate characteristic of political institutions

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Introduction

The constitutional theorist A.V Dicey summarised Parliamentary Supremacy as "the dominate characteristic of political institutions", "the very keystone of the law of the constitution."i "The principle of parliamentary sovereignty means neither more nor less than this....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."ii The magnitude of such an ideal on democratic society can be undisputed, but to explore its relevance today it is necessary to investigate its history and functional mechanisms. The supremacy of Parliament was initially formed by the 1688 Bill of Rights. This followed a period of history known as the "Glorious Revolution." The function of the Bill was to provide dilution of the sovereignty of the monarch, following the forced abdication of James II. It was a time of upheaval and religious division. The power shift towards the sovereignty of parliament aimed to provide a more democratic solution, with representation by the people's representatives. Parliamentary supremacy gives parliament, (which can be summarised as the 3 pillars of the House of Commons, the House of Lords and the monarchy,) the ultimate authority for the creation of law. However, this creates a division between those who create the Acts (Parliament) and those who implement the Acts (the Courts.) The theory of natural and divine law was long held to govern long before the Bill of Rights.

Middle

This can occur via express repeals, whereby express words are used in a statue to repeal earlier legislation. Or implied repeal, where two statutes are mutually inconsistent, the later statute repeals the earlier statute. In the case of Vauxhall Estates Ltd v Liverpool Corpviii the facts centred around slum clearance and the compulsory acquisition of land as covered by The Acquisition of Land Act 1919. The Act stated compensation amounts and dictated that it should prevail over other legislation. This contradicted The Housing Act 1925 which provided a smaller settlement. It was found that the later act impliedly repealed the 1919 provision. In contrast to "continuing theory" "self-embracing theory" argues that the supremacy of Parliament should allow it to bind itself. This academic argument has gathered weight since its proposition by Sir Ivor Jennings. '"Legal sovereignty" is merely a name indicating that the legislature has for the time being power to make laws of any kind in the manner required by law. That is, a rule expressed to be made by the Queen, [the House of Commons and the House of Lords] will be recognised by the courts, including a rule which alters this law itself . . . The power of a legislature derives from the law by which it is established. . . . In the United Kingdom . . . it derives from the accepted law, which is the common law.'ix The view of Sir Ivor Jennings and the self-embracing theory seems to carry more weight in light of the Preamble towards the Parliament Act 1911 removing the power of the House of Lord's to challenge legislation.

Conclusion

The influence of World War II should not be underestimated, not just in ratifying Europe but the consequence of democratically elected fascist regimes. The very fact that devolution and European community law could be suspended by Parliamentary legislation means that although less prominent the significance will intertwine and regulate future ideals into our constitution. In essence Parliament will also remain as a significant supreme mechanism. 1,119 i Dicey 1964 39, 70 ii Dicey the law of the constitution 10th ed 1965 iii (Coke CJ) Dr Bonham's Case (1610) 8 Co rep 114 iv 1911-49 Parliament Acts v Mortensen v. Peters [1906] 8F. 93. 207. vi Ibid, at 230. The term ultra vires literally means 'beyond the legal powers'. If a body is legally Sovereign, nothing can be beyond its powers. The ultra vires doctrine thus could not be applied to Parliament, but as we shall see in subsequent chapters, it has an important role in respect of other governmental organisations. vii Cheney v. Conn (1968) 1 AER 779 viii Vauxhall Estates Ltd v Liverpool Corp (1932) 1KB 733 ix Op cit at pp 152-153 and 156; original emphasis. x Section 28(7) SA 1998, - "This section does not affect the power of Parliament of the United Kingdom to make laws for Scotland". xi NV Algemene Transporten Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration [1963] ECR 1 xii R v Secretary of State for Transport, ex parte Factortame (No 1) (Case C221/89 [1990] 3 WLR 852) xiii Macarthys Ltd v Smith [1979] 3 A U E R 3 2 5 ; [ I O 8 I ] Q B 180 ?? ?? ?? ??

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