An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
The word ‘constitution’ is commonly used to describe a written legal document that embodies a set of rules and principles that ‘establish and regulate or govern the government’ of a country. The United Kingdom, however, does not have such a document.
The British constitution, which is derived from various written sources including Act of Parliaments, judicial decisions, constitutional conventions, European Union law and international law, is largely uncodified.
While an uncodified constitution has the advantages of dynamic, adaptability and flexibility to meet the ever-changing needs of the society , it poses much difficulty in pinpointing the ultimate constitutional principle that should provide legitimacy in the British constitution. This results in a battle between two broad schools of thought––political constitutionalism and legal constitutionalism.
On one hand, political constitutionalists argue that parliamentary sovereignty is the underlying principle in the British constitution as power and law making are bo...
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...pe, Lady Baroness Hale and Lord Steyn.
Lord Hope notably proposed that ‘the rule of law enforced by the courts is the ultimately controlling factor on which our constitution is based’ . This was concurred by Lady Baroness Hale who stated that ‘the courts will treat with particular suspicion any attempt to subvert the rule of law’ although she acknowledged, ‘the constraints upon what Parliament can do are political and diplomatic rather than constitution.’
Lord Steyn was perhaps the most candid. While he conceded that parliamentary sovereignty is the ultimate controlling factor in the British constitution, he claimed that parliamentary sovereignty is a creation of common law and exceptional situations may arise where the courts have to step in to review legislation of the Parliament, implying that even the sovereign Parliament may be subjected to the rule of law.
Originalism, an orthodox principle of legal interpretation, focuses on interpretation pursuant to the original understanding of constitutional words . This incorporates arguments from the ‘text, context, purpose and structure of the constitution’. The originalist method of constitutional in...
...e observed now as easily as it might be in it's final form. The prevailing notion is that through judicial interpretation or legislative act it should be more onerous to affect legislative override, not to the level of constitutional amendment of the rights in question, but perhaps a moderated super majority . The dialogue created by judicial-legislative interplay is truly indispensable to the democratic process, however the possibility exists that the dialogue could be circumvented and replaced with a legislative diatribe. As equally unappealing is the judicial monologue, the disdain for which increasingly dominates legislative analysis in the United States. The override provision effectively eliminates such concerns in Canada. The inevitable democratization of our override provision will in time perfect the dichotomy so vital to legislative-judicial conciliation.
The constitution of the UK is very unique compared to the constitutions in other European countries. In this essay, I will talk about the features of the UK constitution, the sources of the constitution and the principles, which guide it. This essay will also include key points about the uncodified nature of the constitution, and the advantages and disadvantages that come along with it. A topic of discussion has been whether or not the uncodified nature of the constitution of the UK should remain the same, or if, it should be codified. I will further discuss these ideas in this essay and highlight the pros and cons from both sides – codified and uncodified.
In conclusion, equivalent contentions on the constitution being static or adaptable demonstrates that certain parts of looking at the constitution shows alternate points of view on whether it adjusts to the needs of the Australian public. Subsequently, the general population ought to be mindful of any alterations made or to be made to guarantee the significance and needs of the nation is fulfilled.
This paper will argue that the Supreme Court of Canada has adopted a quasi-legislative approach in its decision making as a result of the Charter of Rights and Freedoms, 1982. Quasi-legislative is defined as having a partly legislative character by possession of the right to make rules and regulations, having the force of law (Merriam-Webster). In this paper, it is useful to define quasi-legislative as the court’s ability to influence policy, be it innocent or motivated, through charter enf...
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.
Marshall believes “conventions are non-legal rules regulating the way in which legal rules shall be applied”[2]. Being a major part of the British constitution, they function as a “record of successful applications or precedents”[3] and accept the “patterns of social behaviour and opinion”[4] of an evolutionary nation. Even though they are not enforced by courts, due to their constant progression adapting to current events, these rules of constitutional behaviour are overlapping law and taking over the practice of political appointments. In the following essay we will explain how constitutional conventions differ from laws and discuss their general purpose and importance. Constitutional conventions are different from laws in their enforcement.
Whenever we talk about the British constitutional system, the first thing we should acknowledge is that we are examining the sources that shape up the UK constitution. The framework of how the UK constitution operates is not present in one single location, it is in various forms. Obviously the sources that we are talking about here are from a legal aspect. Now whilst most of the sources of the UK constitution exist in a written form, there is a lack of a single document. Hence it is better to think of it as uncodified.
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
As a concept, Parliament is intuitive to define yet complex to substantiate. Although in theory it lies at the intersection of civil society and the political establishment, in practice committees are the more accessible microcosms of Parliament that empower affected stakeholders to come out of the woodwork. Viewed from this paradigm, the Canadian House of Commons committee system is far from broken, and its continued evolution in empowering backbench MPs in legislation since Confederation has not been routine nor particularly in vain. Neither are technical inadequacies within the House’s Standing Orders (SO) a cause for concern, whether now or in the past. Instead, committee expectations – vis-à-vis their broader causal narratives – need to be tempered: Legislatively, they have too much power, if nostalgia gives way to reassert the original vision of Parliament as the McGrath reform last explicitly argued. The bottom line is simply that it is untenable to investigate fundamental questions on responsible
middle of paper ... ... ccountability to Parliament” (March 2004) www.publications.parliament,uk/pa/cm200204/cmseelct/cmpubadm/422/42202.htm “Unfinished Business? Ministerial Powers and the Prerogative” (May 2003)- http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_no_12.cfm http://www.guardian.co.uk/monarchy/story/0,2763,407374,00.html --------------------------------------------------------------------- [1] Cited in Barnett H “Constitutional and Administrative Law” (Cavendish Publishing, Australia, 2004) pg 289 [2] Barnett H “Constitutional and Administrative Law” (Cavendish Publishing, Australia, 2004)
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
Firstly, I am going to discuss the core definition of a constitution, exploring the difference between codified and uncodified and assessing the complications of the two categories. Secondly, I shall explain the essential characteristics of a constitution as outlined by FF Ridley, applying Ridley’s test to the United Kingdom in order to establish whether the country can be defined as a constitution. Finally, I will analyse the advantages and disadvantages of adopting a codified constitution, evaluating other countries in comparison to the United Kingdom, to determine which would serve the country most appropriately.
"In what ways and to what extent does the political system of the UK fit Lijphart’s models of democracy? How has this changed over recent decades?"
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.