How Can There Be Limits To Parliamentary Sovereignty

'The House of Lords is now more effective than the House of Commons in checking government power'. Discuss

Since these rights are given by God, no man has the moral right to seize them from another man. Following this line of thought, Hamilton further extrapolates that any civil government must be established via a voluntary compact, containing self restraining limits so as to protect the natural rights of those ruled, which should be the objective of every civil government. Any government that usurps these boundaries thus violates our natural rights and can, “Confer no obligation to obedience” (Hamilton, 97). Hamilton once again stresses the import of the fact that the sole purpose of human law is to maintain our absolute rights. Masterfully, Hamilton turns around and uses similar solid evidences to examine Parliament. Arguing avidly that Parliament does not protect colonists’ rights, he presents that Parliament is both assumptive in its authority over its citizens without consent, and also takes away their security because they have no voluntary participation in the making of laws. As such, uncontrolled legislators are unbound, and a government that no longer falls in line with the natural laws delegitimizes itself. Hamilton shows that America’s Congress was created in opposition to such a government. In his closing, he contends with his opponent by once again headlining the fact that laws and government which conflict with natural rights (such as Parliament) can not be considered truly

The House of Lords in White v Jones [1995] held that the law had moved on from the time of the case of Robertson v Fleming [1861] and that the court was free to depart/ stray from the views expressed in

(England) was that the power of the legislature "... is limited to the public good of the

Britain, to begin with, has no written constitution due to the country’s own constitutional structure’s stability. It remains uncodified, yet it’s legal sources stem from Acts of parliament, European Union law, equity and common law,. Therefore the varying powers of parliamentary sovereignty and the rule of law will be considered against these sources.

Parliamentary sovereignty is the key stone in the British Constitution. If judges were to make law then they would be contradicting this doctrine. The legislative supremacy disqualifies the courts power to review the validity of legislation, refer to British Railway Board v Pickin . The objective of judges is to not make law but simply declare what the law had always been. Acts of Parliament are the highest form of authority and the courts hands are tied by it. But through the doctrine of precedent, the judicial function of declaring and applying the law has a ‘quasi-legislative effect’.

‘Parliamentary sovereignty is a constitutional relic. It has been rendered obsolete, in particular, by the supremacy of EU law and the UK’s statutory recognition of human rights. We should no longer talk about this irrelevant doctrine.’

English Parliament had “no separation of powers, the executive and legislative branches being merely different manifestations of the same body”. Whereas in colonial America there was separation among powers.

The paper confronts assumptions about the English and UK constitutional framework leading up to the Magna Carta and other documents that both lead up to, and follow it. Our constitution has roots in English common law and written law. Common law was in place and used before written laws were created. The Magna Carta was emplaced to end common law in England. The Manga Carta was the first written laws that shifted the English political system to something

For many years it has been argued that parliamentary sovereignty has, and still is, being eroded. As said by AV Dicey, the word ‘sovereignty’ is used to describe the idea of “the power of law making unrestricted by any legal limit”. Parliamentary sovereignty is a principle of the UK constitution, stating that Parliament is the supreme legal authority in the UK, able to create and remove any law. This power over-rules courts and all other jurisdiction. It also cannot be entrenched; this is where all laws passed by the party in government can be changed by future parliaments. In recent years sovereignty of parliament has been a

“Parliamentary sovereignty is no longer, if it ever was, absolute” (Lord Hope). Discuss with reference to at least three challenges to the doctrine of parliamentary sovereignty. Parliamentary sovereignty is the concept that Parliament has the power to repeal, amend or create any law it wishes and therefore no body in the UK can challenge its legal validity. There are many people who would argue that this is a key principle to the UK Constitution, on the other hand, there are those who strongly believe that this idea is one of the past, and that the idea of the UK Parliament being sovereign is false. One of these people is Lord Hope, who said “Parliamentary sovereignty is no longer, if it ever was, absolute”. During the last 50 years there have been a variety of developments that have proved to be a challenge for the legitimacy of parliamentary sovereignty, and the ones which will be examined in this essay are: the devolution of powers to the Scottish Parliament; The United Kingdom’s entry into the European Union in 1973; and finally the power of judicial review. Starting with the devolution of powers, these challenges will all be evaluated when discussing whether or not the doctrine of parliamentary sovereignty applies to the United Kingdom. Westminster’s sovereignty has been gradually diminishing over time as varying amounts of power have been devolved to Northern Ireland, Wales and Scotland. In this essay, the devolution of powers to the Scottish Parliament will be

The power to strike down Acts of Parliament is defined as the power to declare legislation invalid because it is unconstitutional. This paper will critically assess sections 3 and 4 of the HRA 1998 by defining them, reviewing case law surrounding their use, and by evaluating the powers that they give to the judiciary. By doing so, it will demonstrate that section 3 gives judges powers that are not significantly different from the power to strike down Acts of Parliament, whereas section 4 does not.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

A majority of judges even said obiter that Parliament could not extend its lifetime beyond five years, even if the 1911 Act was to be expressly repealed and the extension bill then passed. That leads to the question if there are basic constitutional rules that parliament simply cannot change. Lord Steyn and Lord Woolf held that the courts might have to revisit the principle of parliamentary sovereignty, if Parliament sought ‘to abolish judicial review of flagrant abuse of power by government or even the role of the ordinary courts in standing between the executive and citizens’. In such an event, the court might have to ‘qualify’ the supremacy of Parliament, ‘a principle established on a different hypothesis of constitutionalism’.

In Li CJ’s judgment in A Solicitor v Law Society of Hong Kong [2008] 2 HKC 1, he commented in paragraph 9 that the “rigid and inflexible adherence by this Court to the previous precedents may unduly inhibit the proper development of the law and may cause injustice in individual cases. The great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions.” In this essay, this statement would be discussed with reference to the role of the courts and their relationship to the legislature.