Parliamentary Sovereignty Essay
* AV Dicey – the people hold political sovereignty and legal sovereignty is with the Queen in Parliament. * With a written constitution the constitution defines the limits of the government’s power * UK powers of the government – while dependent on the electoral mandate – is unconstrained by any fundamental document and subject to Parliament’s approval. * All law making power is derived from the sovereignty of the legislature: Parliament
ORIGINS OF PARLIAMENTARY SOVEREIGNTY
* 17th century – Crown and Parliament was in conflict
* Crown ruled through royal prerogative rather that ruling through Parliament * Abuse of the prerogative by Charles I lead to civil war and Charles execution * Republican ruled for a decade under Oliver Cromwell
* The monarchy was restored in 1660
* Conflicts followed over religion with James II placing RC in office * 1688 revolution – James II fled to France – Williams of Orange and his wife Mary assumed Crown * Long conflict ended
* Williams and Mary came to the throne subject to conditions which ensured that Parliament had ultimate sovereignty and that the royal prerogative was subject to that supremacy * The Bill of Rights 1689, the settlement between the Crown and Parliament ensured Parliament Sovereignty DISCUSS THE MEANING AND SCOPE OF PARLIAMENTARY SOVEREIGNTY
* The key to understanding Parliamentary Sovereignty lies in its acceptance by Judges who uphold Parliament Sovereignty * Sovereignty is a fundamental rule of the common law
* As long as Judges accept the sovereignty of Parliament it would remain the ultimate rule of the constitution * The sovereignty of Parliament would only be lost under two conditions 1.
If Parliament decided to abolish its sovereignty and place it under a written constitution 2.
If the judiciary went through a revolution in attitude and accepted that parliament was no longer the sovereign law making body and that they owed their allegiance to another sovereign power DICEY’S AND SOVEREIGNTY
* Essential to separate the legal and political sovereignty * Legal sovereignty remains with the UK’s Parliament
* Parliamentary sovereignty Parliament has the right to make or unmake any laws whatever and no person or body is recognized by the law of England as having the right to override or set aside the legislation of Parliament * Law any rule enforced by the courts
* Positive – Parliamentary sovereignty – any act of parliament which makes new law or repeals or modifies an existing law will be obeyed by the court * Negative – No person can question the validity of Parliaments enactments
Parliament’s unlimited law making power
* Parliament can legislate on any subject matter
1. Their term in office – in 1716 life of parliament was extended to 7 years under the Septennial Act. Under a written constitution this would be illegal. It usurps the rights of the people. 2. Act of Settlement and His majesty’s Declaration of Abdication Act 1936 – Parliament may alter the succession to the throne – 3. Union with Scotland Act 1706 – Parliament may abolish itself and reconstitute itself as a different body.
* Parliament can legislate to alter its own powers
1. Parliament Acts 1911 and 1949 – Powers of the House of Lords were curtailed 2. Nigeria Independence Act 1960 / Zimbabwe Independence Act 1979 – Parliament may grant independence to dependent states. 3. Colonial Laws Validity Act 1965 and Statue of Westminster 1931 – Parliament may legislate to limit its own powers in relation to dependent territories.
* Parliament can legislate with retrospective effect
1. War Damage Act 1965 – overruled the decision of the House of Lords in Burma Oil Compant v Lord Advocate (1965)
* Parliament can legislate extra-territorial effect
1. Continental Shelf Act 1964 – exploration and exploitation rights of the continental shelf vest in the crown. But statues would not be given extra territorial effect where other than where it is expressly or implied under for the Act. These acts are normally passed to give effect to obligations undertaken under an international treaty. 2. There is a difference between what Parliament can do in theory and what they can do practically