Parliament and Parliamentary Sovereignty When we talk about 'Parliament' and 'parliamentary sovereignty' what
exactly do we mean? Firstly we must take the word 'Parliament' to mean
not the actual Houses of Parliament themselves but instead the Acts
passed by Parliament with the consent of the Commons, Lords and the
Queen. The doctrine of parliamentary sovereignty is about the
relationship between those who create the Acts (Parliament) and those
who must apply them (courts).
When Dicey published The Law of the Constitution in 1885 he identified
parliamentary sovereignty as meaning that,
'Parliament has, under the English constitution, the right to make or
unmake any law whatever; and further that no person or body is
recognized by the law of England as having a right to override or set
aside the legislation of Parliament.'
To look at this much quoted statement in more detail we can find a lot
of evidence to support his view. It has been shown over the years that
courts are totally unwilling to question the legitimacy of statutes
unless there is some question as to them not being passed using the
correct procedure. As long as an Act has passed through both Houses
and received the Royal Assent judges will not argue whether or not a
statute should or should not exist but will merely try to apply the
statute. One of many examples of this is the case of Edinburgh &
Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710. In this case a
man was appealing to the court against a private Act obtained by the
railway company as it adversely aff...
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...m. It is unclear however what would happen if Parliament
enacted a statute in direct conflict to European laws. Although this
is unlikely to happen on political grounds it seems English judges
would be bound to apply a conflicting UK statute irrespective of
European laws.
Therefore it is my conclusion that although the judges may not agree
with the laws they seem to follow them albeit with some prejudice. If
they had less power we might be in danger of losing the flexibility in
our judicial system, if they had more, i.e. they could override
statutes, we may be faced with great uprisals and tension within their
infrastructure. It seems that English courts whilst being allowed a
certain amount of flexibility are still ultimately answerable to
Parliament, however this seems to be more through choice than
obligation.
"Supreme Court of New South Wales." R v Maglovski (No 2) [2013] NSWSC 16 (4 February 2013). http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2013/16.html?stem=0&synonyms=0&query=title(r%20and%20maglovski%20) (accessed October 12, 2013).
Q1 THE COURT/S IN WHICH THE CASE WAS HEARD (OUTLINE THE CRIMINAL JURISDICTION OF THE COURT)
...acific Railway Co. v. Botsford - 141 U.S. 250 (1891). Retrieved from Justia U.S. Supreme Court: http://supreme.justia.com/cases/federal/us/141/250/case.html
DPP v. P & O European Ferries (Dover) Ltd. (1991) 93 Cr. App. R. 72
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
found in Taylor v. Caldwell (1863) 3 B. & S. 826 where a contract for
Meyer v. State of Nebraska. 262 U.S. 390, 399, 43 Sct. 625, 626, 67 L.Ed. 1042. (1923)
Smedleys v Breed [1974] AC 839; [1979] 2 All ER 21; [1974] 2 WLR 525
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.
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.
The House of Commons To be a watchdog in the House of Commons means that MP’s are vigilant
that of R v Cox in the same light as R v Brady and Hindley (1966) for
The common law doctrine of res gestae was first circumscribed definitively in the case of R v Bedingfield. The principal test to determine the admissibility
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
and the second is a free vote, this is when MPs are allowed to make up