Parliamentary sovereignty - Essay Example

?Parliamentary Sovereignty The notion of Parliamentary Sovereignty has been central to democratic practice for a considerable period of time. In a democracy, the legislature is elected by popular vote and this has been a major feature of the English Constitution. In the initial stages of democracy in Britain, liberty was at grave risk due to monarchical power.1 As a consequence of the doctrine of Parliamentary Sovereignty, the Parliament was empowered to enact or rescind any law whatsoever. In addition, no individual or organisation was permitted by English Law to set aside or overrule legislation enacted by Parliament. In R (Jackson) v Attorney General,2 Lord Hope stated that Parliamentary Sovereignty was not absolute. Thereafter he referred to the enactment of the 1972 European Communities Act and the 1998 Human Rights Act which had effectively diminished the power of Parliament to legislate.3 There was disagreement among their Lordships, regarding the ruling in R (Jackson) v Attorney General. This divergence in view related to whether the process detailed under section 2 of the Parliament Act 1911 and 1949, could be employed by the House of Commons to extend the life of Parliament beyond 5 years. The decision in the Jackson case apparently supports this view. Most of the members of the House of Lords were against this conclusion.4 However, they were signally unable to substantiate it in a manner that was consistent with promoting the supremacy of Parliament. In particular, Lord Hope highlighted the fact that the notion of absolute legislative sovereignty of Parliament that had been derived by Dicey from Blackstone and Coke was undergoing gradual change. However, in his judgement in this case, Lord Hope refrained from explicitly declaring that the courts lacked the power to question the validity of legislation for the reason that the latter was incompatible with union legislation.5 However, Lord Hope was of the opinion that union legislation was a tangible constraint on Parliamentary Sovereignty. As per Lord Hope, the doctrine of Parliamentary Sovereignty was central to the Constitution. However, due to certain developments, Parliamentary Sovereignty was not absolute. Consequently, it would be incorrect to contend that Parliament’s freedom to legislate is unrestricted.6 In addition, Lord Hope stated that the rule of law, which was implemented by the courts, was the decisive controlling factor, and that the Constitution was founded on this element. Furthermore, Parliamentary Sovereignty would be rendered a hollow doctrine, if the general public refused to acknowledge legislation enacted by it, on the grounds that it was extremely offensive and incongruous. The fulcrum of the British Constitution is the doctrine of Parliamentary Sovereignty. Dicey, wrote extensively on the doctrine of Parliamentary Sovereignty and deemed it to be the underlying feature of British political institutions, as well as the very bedrock of constitutional law.7 As per Dicey, parliament can repeal or enact any law and the judiciary cannot hold a statute to be invalid for the reason that it breaches legal or moral principles.8 Thus, every fundamental law, with the exception of the principle of Parliamentary Sovereignty, can be altered by Parliament. One of the critical features of the rule of sovereignty is that no parliament has the power to bind its successors. Thus, there is no avenue, whereby a parliament can ingrain an Act of Parliament.9 In other words, every Act of Parliament can be repealed by subsequent legislation. Dicey was a strong proponent of the thought that the Rule of Law would be affected by discretionary power, as the latter would ultimately result in arbitrary decisions. This has been criticised by some scholars, who have contended that discretion is inevitable in a modern state, if a wide range of regulatory and welfare duties have to be carried out.10 All the same, several important values are incorporated in the Rule of Law, such as access to justice, accountability, certainty, due process, efficiency, and legality. The Rule of Law is not only essential in a democracy, but it is indispensable for promoting fair decisions and preventing or curtailing the abuse of power.11 As the courts implement the law and as they deem Parliament to be sovereign, they also have the power to challenge that sovereignty. In Jackson, Lord Hope emphasised that the UK’s Constitution was founded on the precept of the rule of law enforced by the courts, and that this constituted the ultimate controlling factor. He also declared that the courts were central to any exercise that described the limits to Parliament’s legislative sovereignty.12 Hence, with the case of Jackson, the supremacy of parliament has eroded to a considerable extant. . Moreover,the courts are empowered by the Human Rights Act 1998 to examine whether a statute is compliant with the European Convention on Human Rights.13 This has resulted in a situation, wherein Parliament no longer enjoys a monopoly in enacting laws in the UK. The powers enjoyed by Parliament and other political institutions necessarily fall under the purview of law of the land. Consequently, there is no political theory of the Constitution that can be invoked, in order to circumvent the provisions of the law of the land, by Parliament. The courts, per se, have never supported any move to render Parliament superior to the law of the land. There have been a large number of cases, commencing with the Case of Proclamations to Jackson, in which the courts ruled that Parliament and other political institutions were subject to the law of the land.14 Moreover, UK, as a member of the European Union, It has to make laws that are compatible with the EC law. This restricts the supremacy of Parliament. This has been clearly indicated in several cases involving parliamentary privileges, wherein the courts made Parliament subject to the scrutiny of law. Dicey’s notion that discretionary power would result in arbitrary decisions is baseless. As such, Parliamentary Sovereignty is no longer deemed to be absolute in a democratic state. Lord Hope’s opinion in the Jackson case makes it clear that courts can interpret, repeal or revoke any law that is contrary to public policy. Bibliography Allan J, ‘The Paradox of Sovereignty: Jackson and the Hunt for a New Rule of Recognition?’ (2007) 18(1) King's Law Journal 1 Bradley AW and Ewing KD, Constitutional and administrative law (Pearson Longman 2007) Dicey AV, A.V. Dicey: general characteristics of English constitutionalism : six unpublished lectures (Peter Raina ed, Peter Lang 2009) Eleftheriadis P, ‘Parliamentary Sovereignty and the Constitution’ (Canadian Journal of Law and Jurisprudence, July 2009) < http://www.law.cam.ac.uk/faculty-resources/10006399.pdf> accessed 4 December 2011 Elliott B, ‘How Not to Reaffirm the Constitution’ (The Student Journal of Law, 2011) accessed 4 December 2011 European Communities Act 1972 Forsyth C, ‘The definition of Parliament after Jackson: Can the life of Parliament be extended under the Parliament Acts 1911 and 1949?’ (2011) 9(1) International Journal of Constitutional Law 132 Ginsburg T, Judicial Review in New Democracies (Cambridge University Press 2003) Human Rights Act 1998 Mullen T, ‘Reflections on Jackson v Attorney General : questioning sovereignty’ (2007) 27(1) Legal Studies 1 Oliver D, The changing constitution (Oxford University Press 2007) Parliament Act 1911 Parliament Act 1949 R (on the application of Jackson and others) v Attorney General [2005] UKHL 56 Steyn Lord, ‘Democracy, the rule of law and the role of judges’ (European Human Rights Law Review, 2006) < http://scholar.googleusercontent.com/scholar?q=cache:xAltayW0ay0J:scholar.google.com/+Lord+Hope+opinion+in+Jackson+v+Attorney-General&hl=en&as_sdt=0,5> accessed 4 December 2011 Turpin C and Tomkins A, British Government and constitution: text and materials (Cambridge University Press 2007) Ward I, The English constitution: myths and realities (Hart Publishing 2001) Read More