Q1)
This essay is written in relation to the quote regarding Parliamentary Sovereignty by Dicey, as provided in the question set. The purpose of this essay is to provide a critical evaluation considering to what extent Dicey’s statement is true. This essay will take into consideration the effects that Judicial Powers, European Union law and the law of the European Convention on Human Rights have upon the truth of the statement. Throughout the essay all of these factors will be weighed against the statement providing evidence for both sides of the argument. The outcomes of each factor will be summarised within the main body of the essay and balanced against each other to provide a reasoned argument. Finally the essay will have a conclusion
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The body with sovereignty is the supreme power. In the UK the supreme law-making body is the Westminster Parliament. Therefore in the UK the Westminster Parliament is sovereign and has the power to make and un-make any law. The Westminster Parliament is not bound by any previous decisions of past parliaments and in turn it cannot bind future parliaments. Due to the Westminster Parliament having the ability to make and un-make any law, the principle of Parliamentary Sovereignty cannot be written as a statute as it would have limited effect. However, it still remains an important pillar of the UK’s constitutional framework. Despite the Westminster Parliament being sovereign, it can still be held accountable for its actions. The Westminster Parliament members are held responsible by the people as an electorate, and it is these citizens who give the Westminster Parliament their authority and sovereignty (The Open University, 2014a, section 5.3). When looking solely at this information in relation to Dicey’s statement, it confirms the opinion of Dicey. However, other factors affect the principle of Parliamentary Sovereignty within the …show more content…
The principle of judicial deference refers to the extent to which the judiciary should defer to the sovereignty and legitimacy of parliament when coming to their judgements. Parliament is believed to be more legitimate than the courts due to being democratically elected, more expert than the courts in the matters of policy and more competent than lawyers to turn policy into law, as lawyers are trained specifically and solely in legal rules and interpretation (The Open University, 2014c, section
The case of Francovich had a significant impact on the European Union (EU) law. If a conflict arises between the EU law and the national law, the EU law highly prevails. The European Union law is a framework of treaties and legislation, which have a direct or indirect effect on the laws of the member states which are bound to the European Union. Primary and Secondary laws are the two sources of the EU law. This essay will firstly analyse the main institutions of the European Union and define various legal terms. It will then move on, to discuss the case of Francovich and the importance it had for state liability. Furthermore, it will refer to subsequent cases which are linked with state liability and had an impact on the EU Law. Lastly, my own views about State Liability will be presented.
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.
Cases on the foundations of a constitutional order, such as parliamentary sovereignty, tend to be rare in any event. But what makes R (Jackson) v. Attorney General [2005] U.K.HL. 56; [2006] 1 A.C. 262 a significant case, is the dicta regarding constitutional issues mentioned by the judges in relation to parliamentary sovereignty. The discussions of the central issues in the case are in many ways constitutionally orthodox, treating the primary concerns as that of statutory interpretation and adopting a literal interpretation of the 1911 Act. By contrast, the discussion of the wider issues suggest that the judiciary may have support for what could be classed as unorthodox opinions on the doctrine of parliamentary sovereignty. The concept of parliamentary sovereignty is to be considered as a mere ideology in the eyes of the legislature, as the modern day practical sovereign parliament is far from that of the theory.
However, this should not necessarily disqualify the EU from being treated as a democratically legitimate body. Andrew Moravcsik believes concern about the EU’s ‘democratic deficit’ to be misplaced. Judged against existing democracies, rather than ideal parliamentary democracy, the EU is legitimate. Most critics overlook the relatively optimistic conclusion because they analyse the EU in ideal and isolated terms, drawing comparisons between the EU and a utopian democracy. This use of idealistic standards is leads many analysts to overlook the extent to which delegation and insulation are widespread trends in modern democracies.
Pier Luigi Petrillo, Democracies under Pressures. Lobbies and Parliaments in a comparative public law, Giuffrè 2011
However, we can see plenty of examples of how Parliamentary supremacy is restricted. Take for example the case of Factatane (1990) In which we see how European law, has a huge impact on the sovereignty of Parliament. In this case we see Spanish fishing companies registering boats in the UK in order to receive some of the British Fishing quota. According to EU law this is perfectly fine, however it contradicts Parliaments Merchant fishing act (1988)
This essay addresses the criticism firstly by clarifying the concept of democratic legitimacy and democratic deficit. It also introduces pertinent theories with a focus on the constructive and ideological complexity of the EU. Then it explains the contextual and normative relation between the EU and democracy from its history and some of the major treaties. The essay continues to the debates between advocates and critics of the EU’s democratic legitimacy, yet with a focus on the latter, further dealing with two main dimensions of institutional flaws affecting the legislative process and the insignificance of European citizens to the EU regime. After remarking conventional and possible measures to alleviate the deficiency, it draws a conclusion that the de...
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 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
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 United Kingdom as one of the remaining monarchies of the world, which head of it, the Queen Elizabeth II, has powers that provide an essential evolution of the country. These powers, are called Royal Prerogative powers. Obviously, British people respect the Royal family and additionally the queen, nevertheless they could have their own beliefs as seen on their references. According to the Royal Prerogative (“RP”), it is definitely the most historically and continuing tradition of Britain. In some situations, circumstances tend to disappear them and replaced them by other recent means. In this essay, it will define the RP and how can preserve the separation of powers. Therefore, it should explain how these powers dying to a democratic environment.
INTRODUCTION: Parliament, the supreme law-making body, has 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.
mean neither more nor less than this, namely that Parliament thus defined has, under the English
In a Parliamentary system there is a power concentration instead of division of powers. The Legislature is the greatest power, the government and the executive branch is dependent on Parliament. In contrast to Presidential systems, parliamentary and semi-presidential democracies have Legislative responsibility. Legi...
Before we delve deeper into this topic, it is imperative to properly provide a definition of sovereignty and lay down some foundation on this topic. There are four different definitions of sovereignty – international legal sovereignty, Westphalia sovereignty, domestic sovereignty and interdependence sovereignty. International legal sovereignty deals with “the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence” (Krasner 4). The main definition of sovereignty that this paper will use is the ...