The Doctrine Of Parliamentary Sovereignty Essay

The literal rule is the traditional English approach, if a court follows the literal rule they are complying with the exact words of parliament, thereby upholding the key constitutional principle of parliamentary sovereignty which says the courts cannot challenge what parliament has passed. The purposive approach however seeks to get away from the artificial consideration of language and to instead seek to find the purpose behind the act. However, it does not fit well with the idea of parliamentary sovereignty. The courts have the ability to say what they think Parliament meant rather than just applying the words of an

The Judicial review of laws passed could prevent a bill being passed if it is thought to be against the legislature of the United Kingdom. For example a trade union taking Government to court over trade union laws.

The court observed that the ‘legal meaning’, i.e. meaning the legislature is taken to have intended, may not correspond to the literal or grammatical meaning. As four justices put

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’.

The courts are able to change the law through precedent but are limited by only having influence on the specific cases that are taken to the courts. Parliament is the main branch of government that both makes and reforms the law through the passage of bills. The parliament is able to set up parliamentary committees and law reform commissions, but has no say in the running of these commissions. The NSW Law Reform Commission prepares reports to review the issues identified in the reference, and make recommendations to Government for legislative reform. They do this through a preliminary submission, if required, to give stakeholders an initial opportunity to address the terms of reference and highlight the key issues. This will be followed

Under the Acts Interpretation Act 1901 (Cth) courts are encouraged to give effects to the purpose of the legislation by examining intrinsic and extrinsic sources, this is likely to be the method used by courts in relation to cases which result from the Publications (Immigration Issues) Bill 2014 (Cth).

when parliament has exceeded a certain stage, it falls to the court to apply the statute in a particular case. This can lead to hardship in the sense that the fact of certain issues may not have been concluded by the parliament or where right are been moved as an error in the statute.

Statutory interpretation is process of interpreting statutes by the judges. The definition of statutes have had very specific words but indeed the judges would still need the statutory interpretation to help them. The reason of this, even how, the words in the statutes are specific but sometimes the words contains ambiguity and vagueness in words. On top of that, each word could give us different meaning. For example, we can find in the Oxford Dictionary where a word would contain at least one meaning. Hence, without the statutory interpretation, a lot of judges would have trouble in deciding their judgments in deciding a case. This essay will analyse the four rules, intrinsic aids and extrinsic aids and presumptions in the interpretation

1. When interpreting legislation, the Courts use several approaches to aid their interpretation. Describe how the literal, golden and mischief rules of interpretation operate.

The highest rank court is the European Court of Justice, and the European Court of Human Rights. Below this, yet the highest and most powerful ranked in the United Kingdom, is the House of Lords also recognised as the Supreme Courts since 2009. The decisions of this court are binding on all other courts lower in the hierarchy. Prior to 1966 the House of Lords were too bound by their own decisions to help ensure certainty unless it was seen to be made ‘per incurium’ (by error). This meant the House of Lords could not overrule a previous decision even if it was socially outdated. This was illustrated in London Tramways v London CC where it was held certainty of the law was more important than individual hardship . However, the introduction of the Practice Statement 1966 gave the House of Lords flexibility to amend a law if it is ‘right to do so’. In the appeal documents a material change of circumstances usually has to be shown. The Practice Statement (HL: Judicial Precedent) [1966] 1 W.L.R.1234, per Lord Gardiner, argued for and against a rigid system of binding precedent and highlighted that even though certainty is of importance within the making of Laws, to follow past precedents blindly will lead to injustice. The House of Lords freed itself from a self-imposed restraint by exercising its inherent jurisdiction as a court to change its own practice.

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.

Although these issues were not disputed, the significance of the House of Lords' judgment corresponds elegantly with the rising willingness of some judges to see their role, where essential, as a constitutional court.

The lower courts are bound by the House of Lords so they have to apply

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.