1. Issues
The main issue in the scenario is the conflict between the two Acts of Parliament: Education Act 2013 (EA 2013) and the Education Reform Act 2016 (ERA 2013). ERA 2016 is passed reducing the school leaving age to 16 from 18 under EA 2013 and without consulting the Ofsted as required by EA 2013. Madonna aged sixteen wishes to leave school now relying on the ERA 2016. The question therefore is whether EA 2013 or ERA 2016 would apply and why.
2. Introduction
The question raises number of issues regarding Parliamentary sovereignty and related issues of entrenchment and express and implied repeal. The principle of parliamentary sovereignty in the UK, originates historically from the troublesome relationship between the English Parliament and the Crown. The Bill of Rights 1689 created the foundation for the Parliamentary sovereignty where Crown agreed with the Parliament to limit its power. One of the key definitions of Parliamentary sovereignty was given by AV Dicey who defines it as “the Parliament has the right to make or unmake any law whatever; and 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. Dicey’s theory has both positive element and negative element. Positive in that it states that Parliament can pass any laws on any subject as it sees fit and it can make and unmake laws and it is not bound by the previous Parliament nor can it bind the future Parliament. The negative element of Dicey’s theory is that no one can question the validity of Act of Parliament even the courts.
3. Jurisdiction
The Parliament is supreme and it can pass any laws it likes. However, in the given scenario Parliament has passed ERA 2016 without co...
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...sequent Parliament will be bound by the manner and form. In Attorney-General for New South Wales v Trethowan it was held that since the Colonial Laws Validity Act 1865 specifdied certain manner and form the later Parliament was bound by this. Similarly in Harris v Minister of the Interior court held that the South African Parliament had been created and given its powers by the 1909 Act and later Acts which tried make changes without following the correct procedure was invalid. The modern attitude of courts is changing as could be seen in R. (on the application of Jackson) v Attorney-General concerning the Hunting Act 2004, where Lord Hope of Craighead said Parliamentary sovereignty is no longer, if it ever was, absolute, instead its qualified.” Its enforcement by the courts is the ultimate controlling factor on which our constitution is based.”
Conclusion
However, the UK has remained the same throughout history. Some countries have changed their constitution as a result of civil disorder, while others have changed it just for the benefit of the countries. There have been many attempts in the past to change the constitutional framework of the UK. In 2003, under Tony Blair’s regime, the UK and the US controversially sent troops in Iraq on the basis that it had “weapons of mass destruction” (http://www.bbc.co.uk/news/uk-27852832) As a result a great discussion arose. Would it be any different if the power to declare war would be in the hands of the parliament instead of just the Prime Minister alone?
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
In order to let our members of parliament to have more power and saying, we will have to cut power from the party whip and the Prime Minister. In this way no one can force anyone to make a predetermined vote according to party lines rather than their personal conviction. In taking away the power from the PM and party whips will allow the riding representatives more freedom in which power is one
To conclude, judges are found to be usurping the legislative function to a certain extent, as they do have to ability to adjust and create law. This however, does not necessarily mean that it has a negative effect on the legal system in the UK. As discussed above, the interpretation of statues by judges has both its negative and positive effects. Without the interpretation of judges there would be the assumption that every Act is perfectly drafted, when in fact, most Acts are not. Some Acts have large gaps where words are used in broad terms, this leaves the judges to fill these gaps themselves
In conclusion it seems that the traditional view of parliamentary sovereignty as purported by Dicey is no longer an immutable part of our constitution. Although it remains a key principle of our constitution, it has now been reinterpreted in light of seminal cases such as Factortame and Jackson, from a legally unchangeable, rule of our constitution, to one in which Parliament is no longer prevented from placing limits to the content and form of itself.
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.
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