Why The Courts Can Not Deem An Act Of Parliament

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

One strength of the UK constitution is the flexibility that it has, for the reason that the constitution is uncodified or unwritten and is therefore not entrenched in law. Due to the fact that the UK’s constitution is uncodified or unwritten, it has an opportunity to modernise itself to the ever changing society or any other new circumstances that may arise. An example of the flexibility of the UK’s

the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,”. Later however, he did admit that the description of parliamentary sovereignty has changed from what it was in the year 1885 and parliamentary sovereignty has undergone a change.

A written constitution is considered the highest form of law and is respected because of this. There is no such principle in the British constitution because sovereignty lies with Parliament.

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

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

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’.

Manifesto sees the decision of the supreme court as “clear abuse of judicial power” (1).

There have been many complaints and theories of how the Supreme Court has a tendency to act as a "supra-legislature" (Woll 153). It is proposed that the Supreme Court takes the

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 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

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.

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 .

Administrative Law (dealing with regulations) ‘is essentially judge made law’ and its outcomes are neither predictable nor its case law concise. Therefore while public law offers substantial protections against ‘arbitrary power’ of government it is not easily accessible to all. The courts have no power to strike down legislation (parliamentary law is supreme ) yet their power to strike down regulations is still only limited to acts ultra vires. The judiciary is an effective check on executive power (See Fitzgerald v Muldoon 1976) but its checks on the Legislature are lacking; ‘notorious’ parliamentary privilege show that the courts wish ‘not to adjudicate matters determined within the walls of the