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Parliamentary Sovereignty - Form or Substance (TCC) (U-Glens)

Parliamentary Sovereignty - Form or Substance (TCC) (U-Glens)

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Published by: manavmelwani on Apr 24, 2010
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10/22/2014

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Commentary on the ChangingConstitution: The Sovereignty of Parliament  Form or Substance?
What is Parliamentary Sovereignty?Definition:It is regarded as a fundamental constitutional rule that there are no legal limits uponWestminsters legislative powers, and that the courts may not question or reviewthe validity of legislation.The authority of Parliament includes the power to make constitutional changes byordinary process of legislation, unlike the specific amendment procedures that applyto most written constitutions.However, there is debate that this stress on Parliamentary Sovereignty in themodern context is more a matter of form than substance.Limitations to the theory of Parliamentary Sovereignty:1.
 
Conflicts with the Rule of Law
: How does Parliamentary Sovereignty reconcile withRule of Law?2.
 
M
embership of the EU
, and Westminsters authority is limited by Community Law(European Community Act). The courts must disapply UK legislation if it conflictswith Community Law.3.
 
D
evolution and political practice
  The Scottish Parliament in particular, which hasits own law-making powers, where as a matter of political practice it affects theauthority to legislate on Scotland.4.
 
H
uman Rights Act:
Technically, preserves Parliamentary Sovereignty, but courts areallowed to declare legislation incompatible if in violation of ECHRa.
 
Interpretative powers, the political reality of a declaration of incompatibility,does it mean Westminsters law-making capability been limited?5.
 
D
oes the democratic process
work so perfectly as to justify the absence of any limitupon the authority of Parliament to legislate?a.
 
Possibility of abuse of power? Are there limits where the courts will notapply extreme legislation?The two sovereignties:1.
 
There are two pillars of a legal system, Law-making and Interpreting and Applyingthe Law.2.
 
Sir Stephen Sedley: a bipolar sovereignty of the Crown in Parliament and Crown inits courts, to each of which the Crowns ministers are answerable, politically andlegally respectively.a.
 
What are the boundaries of the legislature and the courts?b.
 
Will there be rivalry and competition, rather than complementarypartnership?
 
3.
 
Hierarchy of norms: Acts of Parliament, secondary legislation, common law. Statuteis the highest form of law that is known in this country. Ungoed-Thomas J.a.
 
But this statement has been overridden by certain developments, namelyEuropean Community law, international human rights.b.
 
Also note that its the courts themselves that ascribe meaning and theauthoritative ruling of the statute comes from a
 judicial decision,
not alegislative one. (Brings up the point of 
interpretation
)Parliamentary Sovereignty as a legal doctrine:1.
 
Parliamentary Sovereignty as a given. A fundamental. Acknowledged by the Earl of Shaftesbury in 1689. Diceyan analysis also has great influence.2.
 
Sovereign Parliament is not bound by the Act of its predecessors: Doctrine of Implied Repeal. The later act repeals the earlier act, where there is an inconsistencywith the provisions in the earlier Act.Possible sources of Parliamentary Sovereignty:1.
 
Big Bang creation: Parliamentary Sovereignty as a Fundamental rule. See above.2.
 
Decisions in Common Law giving Parliament its sovereignty. Courts are applying theActs and have said they are
b
ound 
to apply them3.
 
Historical Process: mutual understanding and comity. The courts and other politicalactors give Sovereignty to Parliament.a.
 
However, who is to say that this constitutional evolution has stopped here?How about
TH
E CONS
TIT
U
TI
ON
as a source?1.
 
UK has no written constitution, but where it is unwritten, the distribution of publicpower consists ultimately in a dynamic settlement, acceptable to the people,between the different arms of government. (John Laws LJ)2.
 
Historical Process, Dynamic Historical Experience, Evolutionary.More importantly,
D
emocratic Basis
for Parliamentary Sovereignty1.
 
Parliament derives its sovereignty from the democratic nature of its politicalprocesses.Parliamentary Sovereignty excludes Judicial Review1.
 
Do judges only apply the statute, or is it possible that they may on their owninitiative begin to review legislation by Parliament?a.
 
What if it legislation breaches fundamental human rights?b.
 
In the years before HRA98, Lord Woolf amongst others suggested that bothParliament and the Court are subject to Rule of Law, and if Parliamentenacts something unthinkable the courts may not necessarily upholdlegislation.2.
 
Parliament has the right to breach fundamental human rights only if they make itclear and explicit that they wish to do so.a.
 
R v Lord Chancellor ex p Witham:b.
 
R v Secretary of State (Home Dept) ex p Simms: constraints on the exerciseby Parliament of this power are ultimately political, not legal. But theprinciple of legality means that Parliament must squarely confront what it isdoing and accept the political cost.
 
O
nly Acts of Parliament are Supreme1.
 
All the courts have to do to see if an act of Parliament is legal is to look to theParliament roll.2.
 
To be valid, legislation must have been passed in the manner and form required bythe constitution.Judicial Interpretation and Application:
iz
the Rule of Law1.
 
Dicey: Parliament is supreme legislator, but from the moment Parliament hasuttered its will as law giver, that law will become subject to the interpretation putupon it by the judges.2.
 
When law is passed, the courts do not accept that the executives statutory powersare unfettered/unlimited. The judges will interpret the law accordingly, in responseto social changes and to protect constitutional values. Prevents constitutionalchanges from being made in general/not express words (very dangerous)3.
 
There are default presumptions that the court will uphold. Where wording inambiguous the courts will uphold this presumption. However, the courts have alsoaccepted that Parliament can if it chooses legislate contrary to fundamentalprinciples of human rights (if done so in express wording)a.
 
Acts of Parliament can be altered by statutory interpretation, HRA98 as faras it is possible to do so.Parliament may by legislation make changes in constitutional law. No special procedure isrequired. But Does Parliaments Power extend to legislating on all fundamentalconstitutional rules?1.
 
Parliament may not bind its successors: The doctrine of implied repeal. Maugham LJ,
llen Sreet 
states Ltd 
v.
Minister of Health
,a.
 
the legislature cannot, according to our constitution, bind itself as to theform of subsequent legislation, and it is impossible for Parliament to enactthat in a subsequent statute dealing with the same subject matter there canbe no implied repeal. However, consider
ho
b
urn
Sunderland City Council 
.Constitutional Act and immunity from implied repeal.2.
 
Parliament may not change the rule that courts recognise Acts of Parliament as law.a.
 
??
The effect of the Parliament Acts 1911-1949
Challenge of R. (Jackson) v Attorney-General, to the Hunting Act 2004. In judicialreview proceedings, the claimants asserted that the Hunting Act was not lawbecause its validity depended on the Parliament Act 1949, and that Act was itself invalid.If the way is open for major constitutional changes to be made by use of aParliamentary Act procedure, Commons and Government might force throughradical reform of the House of Lords itself, based solely on the wishes of Commonsitself.
O
biter: Some judges have deep reservations as to the matter of the majority in theCommons to legislate in ways that adversely affect matters of constitutionalprinciple.

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