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Parliamentary supremacy has had its day.

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Introduction

The origins of Parliamentary Supremacy are found in the 17th century, in particular the enactment of The Bill of Rights, 1689. This is, according to Dicey "the very keystone of the law of the constitution."1 Prior to this it was within a courts jurisdiction to challenge the validity of an Act of parliament, such as in Dr Bonham's case, 1610.2 Therefore it would appear that any subsequent upset of this well-established doctrine would prove to be extremely damaging. The occurrence of Parliamentary supremacy is largely due to the lack of a written constitution in the United Kingdom, as written constitutions provide certain entrenchments (such as in the case of Germany) regarding limitations of scope for creating legislation. European community law, by virtue of the European Communities Act 1972, now has direct applicability in the United Kingdom. Subsequently, where there is any conflict between an Act of parliament and community law, the later takes precedence. In other words, Parliament is no longer the sovereign law making authority; it must instead adhere to Community law, in theory forfeiting its sovereignty. However due to the courts only enforcing Acts of parliament, not treaties such as the Treaty of Rome, it can be argued that by parliament retaining the power to repeal any Act that has not been entrenched, it could repeal the 1972 Act, effectively withdrawing itself from the European Union. This would of course be politically and economically incomprehensible, but in theory Parliament still retains its ultimate sovereignty as the highest form of law. ...read more.

Middle

In recent years with narrow majorities in the commons the popularity of government is crucial for the government of the day. Should the Act be grossly unpopular then it is likely to be repealed, such as in the case of poll tax introduced by the Local Government Finance Act 1988, (although there were other contributory factors to its withdrawal such as administrative problems and unfairness, unpopularity with the electorate was a major factor in its withdrawal). Dicey acknowledged that "sovereignty is limited on every side by the possibility of popular resistance"8, meaning that although Parliament in theory can legislate on any topic it chooses, the law cannot be enforced against the wishes of the electorate. Where there is a conflict between two statutes, the latest prevails, however should this conflict with Community law then there will be no implied repeal, with the courts having to apply the community law. The doctrine of implied repeal continues to be a fundamental element of Parliamentary supremacy. It affirms Dicey's principle that past parliaments cannot bind future parliaments in any way. In Ellen Street Estates v Minister of Health9, a question of inconsistency arose with regards to the Housing Act 1925 and the Acquisition of Land (Assessment of Compensation) Act 1919. The Claimants argued that compensation should be awarded on the provisions of the earlier 1919 Act (which provided more generous compensation than the later 1925 Act). The courts held that the later Act overrode this provision in the earlier Act, and that the later Act should take precedence. ...read more.

Conclusion

He argues as to whether the Act could present a valid legal argument to bypass Parliamentary Supremacy. When the Parliament Act is used to enact legislation, it could be thought of as being inferior to statutes that had been enacted through the traditional three-part body of Parliament (Commons, Lords and Monarch). As in the case of Harris v Minister of the Interior, there would be a case for such legislation to not be recognised by the courts, as it does not follow the established formula. However, Ian Loveland goes on to explain that such action would be difficult to justify due to the lack of a written constitution. When drawing a conclusion to the question of whether Parliamentary Supremacy has had its day, it must be taken into account that many if not most of the points of view are solely theoretical, such as Parliament legislating on any issue it likes. In the present day this would be inconceivable, due to the governments reliance on the electorate to remain in power. There is very little case law from the United Kingdom to support many of the arguments set out above & where foreign cases are cited their applicability is limited by their reliance on a written constitution. Another point that must be noted is that the Doctrine of Parliamentary Supremacy was constructed more than 200 years ago, so following the changes in Legislature and politics in this country, its applicability to modern day Parliament will be limited, since there has been little or no attempt to update the Doctrine. ...read more.

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