In 1885, in his book ‘The law of the Constitution’, Professor Dicey wrote that the uncodified constitution of the United Kingdom was underpinned by two principles, The Sovereignty of Parliament and The Rule of law. (A Dicey, An introduction to the study of the law of the constitution, 10th ed, 1959). The sovereignty of parliament is considered the founding principle of the constitution that can effectively supersede the Rule of law however it is clear that the two principles are interlinked and that the UK constitution is unable to function effectively if parliament and public officials do not respect the Rule of law. (The Rule of law and its underlying values, Jefferey Jowell) In this essay I will consider the Diceys definition of the Rule …show more content…
Judicial review is the means by which the high court exercises a supervisory jurisdiction over the decisions and actions of the inferior courts, tribunals or other public bodies. Richard Gordon, ‘Judicial review: Law and procedure’, (3rd Edition). Before Judicial review there was no effective way to supervise the administration and the British people had no way of seeking redress for grievances caused by actions of public authorities. (The Curious Origins of Judicial review’, T.T Arvind, Lindsay Stirton, 2017) The Minister of Justice commented that ‘Judicial review can be characterised as Diceys rule of law in action’.(Judicial review proposals for reform consultation paper sep 2015). If a public body abuses its power by acting outside the boundaries or not adhering to certain procedures it can be subjected to a judicial review claim by a member of the public. Effectively the rule of law is acting as a constraint on governmental power.(The Rule of law and its underlying values, Jefferey Jowell) The main requirements or grounds for judicial review were set out by Lord Diplock in Council of civil service unions v Minister for the civil service. They include legality, requiring officials to act within the scope of their decision making powers. The second ground is procedural impropriety which requires that fairness must be shown to those affected by the decision. Fairness was mentioned by Lord Bingham as one of the features of the Rule of law. The third requirement is irrationality or unreasonableness. .(The Constitution of the United Kingdom, Peter Leyland). In Bromley v Greater London Council a new policy decision by the Greater London Council was declared unlawful by the House of Lords and had to be repealed. This is a key example of a how judicial review reflects the rule of law as government officials as well as civilians
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.
then prepares its reports. If a change to the law is decided on then a
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.
What is Judicial Review and why is it so important? Well, Judicial review is the power for a higher
One of the Judicial Branch’s many powers is the power of judicial review. Judicial review allows the Supreme Court to decide whether or not the other branches of governments’ actions are constitutional or not. This power is very important because it is usually the last hope of justice for many cases. This also allows the court to overturn lower courts’ rulings. Cases like Miranda v. Arizona gave Miranda justice for having his rules as a citizen violated. The court evalutes whether any law was broken then makes their ruling. Also, the Weeks v. United States case had to be reviewed by the court because unlawful searches and siezures were conducted by officers. One of the most famous cases involving judicial review was the Plessey v. Ferguson
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
Exploring To Which Extent the Parliament is Supreme There are two sides to this argument, one obviously defending that Parliament is Supreme in the law making process, and has utmost authority, the other stating the constraints on Parliament and there it is not supreme. Within Britain, parliament is the supreme law making body. The idea behind this is that the people select parliament and, therefore, the people make the law. We describe this as PARLIAMENTARY SOVEREIGNITY, That is to say that Parliament is the highest power in the land, and shall not be challenged. An example that shows parliamentary supremacy is Cheney .vs.
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.
In a nutshell, parliamentary sovereignty exists because judges have for centuries consistently stated that they do not have the constitutional power to question Acts of Parliament. They have come to the conclusion that the judicial function is merely to interpret legislation in order to ascertain the intention of Parliament in passing it. The case Cheney v Conn gives an outline of this point. Due to the courts accepting judgments of the Queen in Parliament and allowing any law to be passed for centuries, parliamentary sovereignty is a known as a common law doctrine. Sovereignty is a fundamental rule of the common law. The sovereignty is not laid down in any statute. For as long as the judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of constitution. As Salmond explains, all rules of law have historical sources. As a matter of fact and history they have their origin somewhere, though we may not know what it is. But not all of them have legal sources. Bu whence comes the rule that Acts of Parliament have the force of law? This legally ultimate, its source is historically only not legal. It is the law because it the law and not for any other reason that it is possible for the law to take notice of. No statute can confer this power upon Parliament for this would be to assume and act on the very power that is to be
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.
The Rule of Law refers to the principle that law should govern a nation instead of being governed by the decisions of individual governments. The complexity of Parliamentary Bills make the legislative process more time consuming, harder to comprehend and as a result it makes it harder to reach to a final decision. In this respect Parliamentary scrutiny can be said to undermine the rule of
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.
Sir Ivor Jennings mentioned that ‘If a constitution means a written document, then obviously Great Britain has no constitution…obviously Great Britain has such institutions and rules’. Apart from being ‘uncodified’, the constitution has no strict separation of powers but is unitary in nature.
This type of rule of law is upheld through administrative law and by the practice of judicial review. This states out the fact that ‘no one is above the law’ , although there are some aspects that can undermine this factor. Take for instance the powers of the prime minister who’s powers are based solely on the Royal prerogative which is not subject to judicial
It should be noted that the United Kingdom operates an unwritten constitution which implies that its laws are contained in Acts, conventions and legislation; this made the parliament the supreme