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Parliamentary's Soverignty

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Nicole Ann Gaudet Has the Separation of Powers and the Rule of Law in the UK Constitution overshadowed The Doctrine of Parliamentary Sovereignty? Consider the impact of the Human Rights Act 1998 and the Constitutional Reform Act 2005. Word [email protected] without References & Bibliography 1. PARLIAMENTARY SOVERIGNTY For the purpose of this paper we will assume that Parliamentary Sovereignty in the United Kingdom is the main theory and informative basis of the 'unwritten' constitution and the other two doctrines, the 1Human Rights Act 1998 and the 2Constitutional Reform Act 2005 do not represent any major constraint on the 'uncodified' Constitution. We will argue that both of these assumptions are not necessarily true, though it will be accepted that parliamentary sovereignty is the most important feature of the UK constitution to date and it has transpired over years. The HRA has strengthened many aspects of the rule of law by A.V. Dicey and the separation of powers which in fact is not a 'true separation of powers'. ...read more.


Article 8 (privacy) Article 9 (freedom of religion). It was found in 9A v Secretary of State (2004) that one of the key grounds for finding the Convention right incompatible with the HRA 1998, that they allowed for detention the terrorists in a Belmarsh prison without a trial; unlawfully discrimination between nationals and non-nationals. 3. THE DOCTRINE OF SEPARATION OF POWERS The Doctrine of Separation of Powers is of some importance to the UK constitution. It denotes the premise that there are three main organs of government, the Legislative, Executive and the Judiciary. There should be a system of checks and balances between each branch to keep each in check. An easy violation in the separation of powers is the judges are allowed to declare and develop common law. This commonly means creating it. 10Shaw v DPP (1962), in the House of Lords distinguished that the common law included a doctrine of 'conspiracy to corrupt public morals', although no precedents were cited demonstrating that it ever existed as a variant. ...read more.


It flows from the17 Doctrine of Parliamentary Sovereignty. Parliament can legislate on any matter and therefore can pass laws severly curtailing civil liberties without facing the possibility that such legislation might be curtailed unconstitutional. Parliament can pull out of the 18ECHR at any time, but is doubted that they would ever do that. Parliament cannot bind any future Parliaments or be binded by any previous Parliaments. Any judiciary cannot question the validity of any legislation of Parliament. It may be disputed that Parliamentary Sovereignty may have been weakened by its membership to the EU. In 19Factortame v Secretary of State for Transport (No.2) (191), the House of Lords distinguished that where Community law was clear, it must prevail over domestic law. Theoretically, Parliament can repeal s.2(4) of the European Communities Act 1972, which gives primacy to Community law, but in practice it is likely they would not do so for political reasons. 5. CONCLUSION The HRA and the CRA have strengthed both of these doctrines to a significant degree but both remain subject to the Doctrine of Parliament Sovereignty as being supreme rule of the UK Constitution and probably always will. ...read more.

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