Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6

Parliamentary supremacy has had its day.

Extracts from this essay...

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.

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 Should the Act be grossly unpopular then it is likely to be repealed, such as in the case of poll tax introduced by the Local Government Finance Act 1988, (although there were other contributory factors to its withdrawal such as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.

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.

The above preview is unformatted text

Found what you're looking for?

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

Not the one? Search for your essay title...
  • Over 180,000 student essays
  • Every subject and level covered
  • Thousands of essays marked by teachers

Related University Degree Jurisprudence

  1. "The classical principle of parliamentary sovereignty has been radically altered as a result of ...

    The classical principle of parliamentary supremacy has been modified as a result of the European Communities Act 1972. It has not been "radically altered" as the UK Parliament still maintains the ability to freely enact any legislation it likes which is outside the context of incompatibility with Community law.

  2. An Introduction to the Law of Intellectual Property

    They may be granted to anyone who can certify that the products involved meet certain established standards. The internationally accepted "ISO 9000" quality standards are an example of such widely-recognized certifications. Effect of Limitation of Absence of Colour A trade or service mark is required to be limited in whole

  1. Evaluate the extent to which the Human Rights Act 1998 is consistent with the ...

    The Act also intended to help create a society in which rights and responsibilities of individuals are properly balanced and in which an awareness of convention rights permeates our governmental and legal system at all levels. The Act came into force in October 2000, and provided that an individual or

  2. Jurisprudence theory

    this separation between law and morals, even after the law has definitely passed into a new stage of development11. If we were to divide the two categories of naturalism and positivism into opposite ends of a spectrum of possibilities, inclusive positivists would be placed at some way towards the natural law end of the scale.

  1. Universal conceptions of human rights should supersede culturally relative conceptions. Discuss. Assess the effectiveness ...

    As was said before, cultural practices are important in terms of human rights and these instruments give allowance for the practice of such. Nevertheless, this permission should not serve to discriminate against others to the point of inflicting undue harm or punishment.

  2. Perhaps the most pertinent issue regarding the justification of torture is the ongoing and ...

    This 'waking nightmare' could mean potential for mental pain or suffering as defined in the CAT Article 1 if classified as severe.32 If this is the case, then perhaps the administration or threat of administration of drugs in interrogation, being classified as torture, is therefore not appropriate.

  1. The death penalty is an effective punishment for the worst crimes and should be ...

    Firstly European Union (EU) membership would have to be renegotiated, something increasingly likely to occur anyway with the rise of the Eurosceptics. Secondly, the UK would have to withdraw from the Optional Protocols to the ECHR. Following from that, the death penalty could be reinstated via a passage of an

  2. A critical evaluation of the regulation of legal prostitution in Victoria.

    and the Health (Infectious Diseases) Regulations 2001(VIC)('the health regulations'). The Act introduced a system of licensing and registration, whereby owners of prostitution businesses (prostitution service providers38) must be licensed with the Business Licensing Authority of Victoria (BLA) (run through Consumer Affairs Victoria)39.

  • Over 180,000 essays
    written by students
  • Annotated by
    experienced teachers
  • Ideas and feedback to write
    your own great essays

Marked by a teacher

This essay has been marked by one of our great teachers. You can read the full teachers notes when you download the essay.

Peer reviewed

This essay has been reviewed by one of our specialist student essay reviewing squad. Read the full review on the essay page.

Peer reviewed

This essay has been reviewed by one of our specialist student essay reviewing squad. Read the full review under the essay preview on this page.