Acts of Parliament as Public Law
Acts of parliament are considered to be the highest form of law in
England. The reason for this is constitutional. Under England's
unwritten constitution, parliament is seen as sovereign. As a result,
its enacted will, in the form of Acts of parliament, cannot be
challenged in the courts. However, in practice there are legal,
political and moral limitations on this sovereignty, which will be
discussed in some detail in the following pages.
An act of parliament is to be always obeyed, even if the act conflicts
with common law [Burmah oil Co v Lord Advocate {1965} A.C 75]. Here,
the H.L held that where private property was taken or destroyed under
the royal prerogative, the owner was entitled at common law to
compensation from the crown. However, parliament reversed this
decision by enacting the War Damages Act 1965. It provided that no
person should be entitled at common law to receive compensation in
respect of damage to or destruction of property caused by lawful acts
of the crown during the outbreak of a war in which the sovereign is
engaged. As a result of this act, Burmah Oil was no longer entitled to
compensation, which would have been its common law right.
It is now recognised that it is only the Acts of Parliaments that have
legal sovereignty. The court will not allow a mere resolution of the
House of Commons.
Parliament does have limitations on its sovereignty that will now be
discussed.
One limitation is that parliament cannot bind its successors.
Professor ECS Wande observed that:
"There is one, and only one, limit to parliaments legal power: it can
not detract from its ...
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...w.
There have been cases in which parliament has bowed to pressure to
amend the law where there has been a breach of the convention
(Campbell and Cosans v U.K. 1982); Malone v U.K. (1985).
CONCLUSION
In the light of all that has been discussed, I conclude that
parliament is supreme. It has the power to pass legislation which
conflicts with common law, international treaties etc. but it may not
choose to use its power for political, moral considerations and fear
of electoral defeat.
However, there does seem to be one legal fetter, the European
Community. The European Court recognises community law as being
supreme (Costa v ENEL{1964}) and that the sovereignty of member states
has been limited.
But parliament could repeal the European Community Act 1972 which
would restore total legislative freedom.
The European Union has a common “government” called the Parliament. In the background essay it stated, “The role of the parliament is to debate and pass laws, make sure all EU institutions work democratically, and debate, and adopt the EU budget”. This means that the parliament has control over the laws, and controls the European Union budget. In Document B it mentions, “Whatever institution governs the trade of a nation or group of nations whether monarchy, dictator or parliament essentially rules that nation”. This means that the parliament has control over the European Union.
Many operate under the principle referred to as the law of the land, which especially true of England and the Netherlands. This concept finds its basis on the ideas of the elected parliament as to their declarations of the precepts of the law as they view it. This particular reasoning evolved via the death of Charles Stuart, the king of England, upon his execution on January 30th, 1649. As a result, of the execution, England had no central ruler and the constituents of the House of Commons began the duty of transforming the government. Because the House of Lords opposed the trial of the tyrannical king, the House of Commons declared itself the ruling body negating any power the House of Lords possessed and thus, abolishing it. Consequently, the House of Commons maintained that it would become their responsibility to protect not only the liberty, but also the safe being, and the interest of the public at large, thus Parliament came into being (Lee, n.d.). Furthermore, they mandated that a single person having sole power presented a danger to the whole of the public welfare and the monarchy existence was figuratively only. Because of these acts, with the abolishment of the House of Lords and the monarchy as such, a contingency of forty-one members comprising the Council of State became the ruling authority establishing the laws of the
During the rule of King Charles I, the Parliament had limited powers, and were not entitled to govern independently as a Parliament should. This is shown through King Charles’ power to veto their decisions, and his dissolving of the Parliament three times between 1625-1629. Consequently, the Parliament became frustrated with their minute role, and responded in attempt to control the King’s power, to maintain their control. This is clearly depicted in their refusal to grant tax raising and revenue for Charles’ increased expenditure, including the abolishment of the ‘ship tax’ which had been previously collected illegally. Following on from this was the enactment of legislation through the Petition of Right in 1928, after MP’s had been called back by Charles in his third parliament. The Petition of Right demanded that Charles could not imprison anyone without being found guilty in a court of law, that no tax could be implemented without Parliamentary consent, and soldiers could not be billeted against their will. Furthermore, the Parliament also abolished the Court of High Commission and the Star Chamber, disallowing for Charles to continue the arbitrary punishment of opposers to his reforms. The Parliament’s pressure on Charles through these reforms was largely driven by
The ideology of parliamentary sovereignty represents a constitutional order that acknowledges the necessary power of government, while placing legal limits and conditions upon its excise due to the Rule of Law, developed by the judiciary in cases such as Pickin v British Railways Board [1974] AC 765. The Diceyan theory represents a definition of parliamentary sovereignty. A general summary recalls that,
The principle of Supremacy of EU Law was established by the European Court of Justice in a series of cases. This principle authorizes EU Law to take precedence over
Exam Question: The British King and Parliament were depriving colonists of their natural rights, therefore justifying the colonists' actions of rebellion and independence.
One of the most influential and celebrated scholars of British consistutional law , Professor A.V Dicey, once declared parliamentary soverignity as “the dominant feature of our political insitutions” . This inital account of parliamentray soverginity involved two fundamental components, fistly :that the Queen-in-Parliament the “right to make or unmake any law whatever” and that secondly “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” . However this Diceyian notion though an established principle of our constitution now lies uneasy amongst a myriad of contemporary challenges such as our membership of the European Union, the Human Rights Act and a spread of law making authority known as ‘Devolution’. In this essay I shall set out to assess the impact of each of these challenges upon the immutability of the traditional concept of parliamentary sovereignty in the British constitution.
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
Tiilikainen, T. 2011. The empowered European Parliament: Accommodation to the new functions provided by the Lisbon Treaty. The Finnish Institute of International Affairs.
The EU is a union of sovereign European states who share sovereignty based on treaty. The union also possesses competences in policy sectors with exclusive jurisdiction in the area of Economic and Monetary Union while others are shared with Member States (MS), the other powers belong to MS as derived from the conferral of powers art 5(2) TEU, 2(1) TFEU art.3 & 4 TFEU additionally other powers have been offered by the decisions of the European Court for direct effect on citizens
On one hand, political constitutionalists argue that parliamentary sovereignty is the underlying principle in the British constitution as power and law making are bo...
Accessed 16/03/2012. http://www.law201.co.uk/95.pdfaccessed on 16/03/2012. http://www.oup.com/uk/orc/bin/9780199219742/01student/mindmaps/loveland_mindmaps_royal_prerogative.pdfaccessed on 17/03/2012. http://www.justice.gov.uk/royal-prerogative.pdf accessed on 17/03/2012. http://www.justice.gov.uk/royal-prerogative.pdf accessed on 18/03/2012.
through fear of god and so now we can abolish them as this fear is no
Public order denotes keeping the public safe and keeping things orderly. Public order laws are laws that are created to stop riots, violent behavior and other activities or behaviors that can lead to serious public harm. Individual rights involve protecting an individual's right to do something regardless of its potential impact on public harm. An example of an individual rights law would be the law of free speech. In the United States, citizens are allowed to speak freely because of the first amendment and it does not matter whether or not this free speech adversely affects the government or the people.
The rule of law is thought to be one of the most fundamental doctrines of the constitution of the whole of the United Kingdom. The distinctive UK‘s constitution has influences previously on the judicial system too. Government and the legal systems in history have both been involved in rules and discretion and most of all the elimination of all discretionary power in which both of these are impossible and unwanted. The rule of law means in one sense, government by the law but obviously government is by the people as well as by the law. As soon as the governing people are added in, the government can’t then be by law on there own. Although the situation is not undoubtedly as the making of particular laws can be guided by open and relatively stable general laws that have been made. For the Rule of Law to have meaning in a democratic society, it has to mean that those who run it have comply with it for it to work; there must be no room for an “ends justifies the means”