Bi polar sovereignty

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Can there truly exist a system of bi-polar sovereignty?

Introduction

This essay is in response to C.J.S. Knight’s ‘Bi-polar sovereignty restated’. Knight argues that, “the best way to understand sovereignty in England and Wales is to recognise the dual sovereignty of Parliament and the courts.” This essay will take the alternative view to Knight, namely that a system of dual sovereignty is unfeasible.

Is there an overlap between the Legislature and the Judiciary?

Knight is correct in acknowledging that the role of Parliament and the Judiciary overlaps. He notes that, “vast swathes of law are entirely judgemade.”This is clear from previous decisions from the judiciary such as the case of R v R where the House of Lords abolished a longstanding notion of a husband’s immunity from criminal liability for raping his wife.

The Human Rights Act 1998 in particular allows judges to interpret legislation as far as possible in order to make it compatible with Convention rights. This provides judges with the possibility to interpret Parliament made law in ways, which they see fit. Therefore, this raises the possibility that judges can make law. This position is enhanced from the fact that judges may develop the common law. For example, in Shaw v Director of Public Prosecutions the House of Lords held that the publisher of prostitutes’ services was guilty of the offence of conspiracy to corrupt public morals. This offence was previously unknown, and Parliament did not overrule the Lords’ decision. Therefore, it is possible for the Judiciary to make law, which shows that Knight is correct to assume that there is an overlap between the Judiciary and Parliament. In a practical sense, Parliament and the Judiciary do share power because Parliament makes law, whereas the Judiciary can develop that law through the common law. Therefore, both branches of the English system can make law, which shows that there may be an overlap.

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Is there dual sovereignty between Parliament and the Judiciary?

Although Knight is correct to say that the roles of Parliament and the Judiciary may overlap, he is incorrect in stating that there is bi-polar sovereignty between the two branches. This is because, it is impossible to state that two bodies can both be sovereign. This essay will now show how Knight’s view of a dual sovereignty is not practical.

Let us first assess the definition of sovereignty. Sovereignty refers to one body having supreme power. Therefore, this highlights the first problem of Knight’s position. It is not ...

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