The Traditional View Of The Doctrine Of Parliamentary Supremacy

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

“Some lawyers have been attracted to the argument that the union legislation placed constraints on the power of the UK Parliament to legislate, and that the UK Parliament might be unable to alter at least its most important terms. While there are powerful arguments against this view, - it continues to have its supporters. It famously received some judicial support from Lord Cooper in MacCormick v Lord Advocate, and has been referred to in several subsequent cases. However, there has been no case in which a Scottish court has questioned the validity of an Act of Parliament on these grounds. Indeed, whether an Act of the UK Parliament is compatible with the union legislation was treated as, in principle, a non-justiciable issue in MacCormick. However, supporters of the argument have taken comfort from the fact that in MacCormick, Gibson and Pringle Scottish judges reserved their opinion on what would be the case if legislation purported to amend 'fundamental provisions', for example, by abolishing the Church of Scotland or the Court of Session, or by replacing the Scottish system of private law with English

Legislation is a law or a couple of laws made by the government and finalised by the parliament. The parliament decides whether the legislation is good enough or needs improvement.

The Supremacy of the monarchy is the monarchical state of being superior more than all others in power which refers to the Bristish Law’s called Magna Carta, common law and precedent. The Magna Carta is a charter that King John of England was forced to seal and sign the Magna Carta, otherwise he would be considered shameful and unjust. Magna Carta is still one of the most influential documents that is a part of our law which exhibits the idea of liberation of citizens. King Henry II developed a system of travelling judges (circuit judges) who would visit villages, resolve conflicts, heard cases and created new laws which is now considered common law. According to the textbook, common law has three meanings. It refers to the law that comes from Britain, it means a law that is common is all… law that applies to all subjects in the land and it also means law that is based on the best decision of judges. Common law is the law that is the same for every individual and should be obeyed by everyone equally and ethically. Common law is also seen as a precedent because the past decisions of the judges were recorded and were used for alike cases or conflicts. In short, the Supremacy of The Monarchy developed from the Magna Carta, common law, court system and precedent that helped our Canadian law develop to make it

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

Before evaluating whether or not Parliament is sovereign, it’s important to define what sovereignty means. Sovereignty can be split into two; political and legal. Legal sovereignty is the ultimate power to make laws which will be enforced within the state. Members of Parliament and the Prime Minister have ultimate legal power because they propose and enforce legislation. Citizens have no legal sovereignty because they don’t play a role in the legislative function even though pressure group activity may influence decisions. Political sovereignty is where real political power lies, and depending on the situation political sovereignty doesn’t always lie within Parliament. Critics have argued that due to recent changes, Parliament is no longer

Parliamentary sovereignty and the rule of law are both concepts that are key to shaping the British constitution, however there is ambiguity as to which concept is the heart of the UK’s constitutional arrangement in the recent years.

Parliament has a central function in carrying out a scrutiny role. It carries close inspection and where it is necessary, amendments maybe proposed this is carried out in both houses. It holds the government collectively and the PM and other ministers accountable for their actions. It does this in debates, question times and through the work of Departmental Select Committees (DSC). However it maybe be argued that is not enough since scrutiny does not often involve blocking legislation. It is not expected that parliament will make substantial changes, but it does

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

The House of Lords is the second chamber of the UK Parliament and is independent to the Commons although it complements the work of the Commons. Members of the Lords play a vital role in scrutiny, there are two main reasons for this, the first being that they are independent to the Commons and in many ways have increased power which they often use to stand up to the Commons by blocking reforms. Lords also have a better balance of parties so no government has a majority. The Government however can override Lords by using Parliament Act; this was used when the fox hunting ban was being put through under Blair’s government as there were too many in opposition of the ban in the House of Lords. The Parliament Acts, although rarely used, provide a way of solving disagreement between the Commons and the Lords. The Parliament Act of 1949 also prevents Lords from delaying bills for more than one year.

The power of the crown and the authority of the government is limited by the Declaration of Man and the Citizen. One situation where the government is limited is where “Men are born free and remain equal in rights.” (1789, Art, 1, DRMC.) The government must give all men equal rights. The rights of man include “liberty, property, security, and resistance to oppression.” (1789, Art, 2, DRMC.) Both the power of the crown and the authority of the government are limited by (1789, Art, 3, DRMC.) “no individual can exercise authority which does not emanate from it expressly.” If authority does not originate directly from the crown or a member of government, they may not exercise said authority. “The law has the right to prohibit only those actions harmful to society.” (1789, Art, 5, DRMC.) Neither the power of the crown nor government can prohibit an individual from doing something that is not harmful to society or force an individual to do “what it does not order” by obstructing or changing the law. “The right to concur personally or through their representative in its formation… must be the same for everyone.” Authority must give the same rights to everyone to “concur personally or through their representative.” (1789, Art, 6, DRMC.) In Article 8, the government or power of crown may only punish a person if “strictly and plainly necessary.” (1789, Art, 8, DRMC.) If unneccessary, a person may not be penalized by government or the power of the crown. Individuals

The UK’s unwritten constitution, formed of Acts of Parliament [AoP], Royal Prerogative [RP], Constitutional Convention [CC] and Case Law [CL], prompts much debate about the ease of which constitutional change can be introduced. A written constitution is, by definition and practice, hard to alter however it remains to be seen whether it is any easier to change an unwritten

Despite the fact that there are significant disadvantages to this rule there are some advantages, including limiting the function of the judiciary. Furthermore, constitutionally it honours parliamentary sovereignty and the entitlement of Parliament to produce law. Overall, it is indisputable that the literal rule, when

Parliament can however override and replace the prerogative by statute e.g. The Fixed-term Parliaments Act 2011. The Courts are capable of judicial review of these powers as was held unanimously in the GCHQ case. Only prerogative acts, which don’t involve high policy best determined by the executives will be reviewed.

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.