Acts of Parliament as Public Law

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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.

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