To Study of the Law of the Constitution

Introduction

A V Dicey described the rule of law as “one of two pillars upon which our constitution rests, the other being the sovereignty of parliament.” [1] This immediately brings emphasis to the view that ourUK constitution values the rule of law as well as considering parliamentary sovereignty as a supreme component of our Country’s constitution. The question however, lies in whether parliament has the absolute power to ‘legally legislate on any topic whatever which, in the judgment of parliament, is a fit subject for legislation,’ or conversely, a contradictory argument is much more valid.

First of all, I will take Her Majesty’s words of enactment into account, which conferred that, our present assembly of Parliament, has the authority to create legislation with the consent of the Lords Spiritual and Temporal. This implies Parliament has the power to “make or unmake law whatever, and no body or person is recognised by the Law of England as having a right to override or set aside the legislation of parliament,”[2] as Dicey well defined in his rule of law theory. Evidently, this supports the basis of my argument that Parliament has the sovereignty of power to create or dismiss law and no Political MP or common man, has the capacity to do so.

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Furthermore, there is much to support the view that the doctrine of supremacy lies in the hands of Parliament. The courts ascribe Acts of Parliament to have legal force which “other instruments for one reason or another fall short of being an Act of Parliament.” This superlatively supports Dicey’s statement above “no power which, under the English constitution, can come into rivalry with the legislative sovereignty of parliament.’ However, in terms of rivalry the courts referred to treaties entered under prerogative powers, by-laws created by a local authority, order in council, the Scottish parliament or the Northern Ireland Assembly.

Yet, it is justifiable to a very large extent, Parliament has unlimited power in the constitutional affairs of the United Kingdom. The Septennial Act (1715) which Parliament passed to “extend the life of parliament from three to seven years.” [3] Furthermore, the amendments which Parliament made through the Parliament Acts (1911) and (1949) to hold “a general election at least every five years.”[4] As well as, amending its own composition and bills as set out in the 1911 Act.

These were the initial legal changes which gave rise to Parliament’s supremacy to legislate on any matter which is ‘a fit subject for legislation.’ Additionally, through the Act of Settlement (1701) and the Abdication Act (1936), Parliament made a remarkable change through the succession of the throne. The courts who have a role to interpret and apply Acts of Parliament affirmed that only Acts have legal force.

Dicey’s first principle on the rule of law can be supported from above. In addition, Parliament being able to legislate retrospectively strengthens the view that ‘parliament can make or unmake any law it chooses.’ In the case Burmah Oil co v Lord Advocate (1965)[5] Parliament exercised its power to introduce another Act, the War Damages Act (1965) as the decision to overturn the House of Lords decision became crucial to prevent theUK suffering a huge financial drain, at the time of the World Wars. This exemplifies Parliament being able to legislate with no legal limits as such. Thereby, supporting Dicey’s statement above.

Now I will bear relevance to Dicey’s second principle which states “Courts are constitutionally subordinate to parliament.” The rationale for courts to be constitutionally lower than parliament is that Bills do not have legal force, it is Acts that do. Therefore, the stages that a bill must pass to become an Act clearly imply Parliament has greater supremacy, on the grounds, the courts cannot make law. However, they do have the authority to enforce law which has already been an Act.

Moreover, the Enrolled Act rule legally permits the courts to amend legislation which parliament cannot change. The case Edinburgh and Dalkeith co V Wauchope (1842) [6]gave rise to this rule, as Wauchope set out to challenge Parliament as a result of the Private Act affecting Wauchope’s rights against the railway company. Challenge was rejected, as Parliament refused the introduction of the bill into parliament through standing orders of the House of Commons. The legislative authority of Parliament was evident in this case.

On the other hand, Lord Reid in the case Madizimbamuto v Lardner Burke [1969] “it would be unconstitutional for the United Kingdom parliament to do certain things.”[7] The implication of this was clear, it would be unconstitutional for Parliament to legislate for other governments likeRhodesia. However, Parliament may do such things if it wishes to do so, as it is much evident the supreme power remains with parliament. This strongly supports Dicey’s rule of principle.

On the contrary, Sir Glanville Williams (1947) argued that, “no statute can confer this power upon Parliament, for this would be to assume and Act on the very power that is to be conferred.” [8] This implicates statute cannot form sovereignty, opposing the the sovereignty parliament being able to legislate, both ‘prospectively and retrospectively, to be noted from above.’[9] Conversely, the dismissal which took place in the case Cheney V Conn (1968) due to illegal taxes, allowed Ungoed –Thomas J to proclaim “it is the law which prevails over every other form of law”[10] subsequently, ‘what the statute enacts cannot be unlawful because the statute is the law.’[11]

In opposition of Dicey’s statement above, Dicey’s third rule of the principle highlights certain limitations on the legislative power of Parliament. In the view that, ‘Parliament cannot bind its successors or be bound by its predecessors.’ Primarily because Parliamentary sovereignty is protected by two doctrines, express repeal and implied repeal. Implied repeal in context for instance, states that if there were to be a conflict between two Acts, one previous and one repealed, then the rule applies that the last of two Acts passed at separate times, it is the most recent Act which must be obeyed. Therefore, Parliament must cohere to this rule.

However, the key limitations which have been argued to challenge the sovereignty of parliament are the Human Rights Act [1998], Devolution ofScotlandandWales, the Treaty of Union (1707) and the European Communities Act (1972).

The Human Rights Act [1998] seeks to protect human rights against legislation by later Parliaments. So it could be justified as a limitation for Parliament to pronounce a lawful decision such as ‘all blue eyed babies should be killed.’

Also, since the devolution of the UK Parliament[12], devolving powers toScotland as ruled in the Scotland Act (1998), Northern Ireland Act (1998) and Government of Wales Act (1998), this may contradict Dicey’s statement above. As Wales, Scotland and Northern Ireland have the power to legislate on certain matters such as Education-student tuition fees; this possibly means ‘Parliament cannot legislate on any topic whatever’ unless, the powers were to be taken away, which could in theory happen. Seeing as, Westminster still holds the supreme power. Yet, the process is likely to be time consuming.

Additionally, it could be reasoned that Parliament’s powers have been limited since the Treat of Union (1707) came into existence. On the basis that, the treaty of union was introduced to unite the two kingdomsEnglandandScotland, with the belief that, there was a union of equals. Implying thatScotlandis somewhat equal toEngland. They could argue, the Treaty of Union is a higher form of law and may prevail over inconsistent Acts of Parliament.

In historical context, the sovereignty of Parliament was seen in a different light as it is today. Coke CJ in the case of Bonham (1610) 8 co Rep [13] asserted that, Common Law was a higher form of law than an Act of Parliament. However, this judgment was formed when the monarch had greater legislative and judicial power than Acts of Parliament. Since 1714, there has been a reversal of constitutional affairs; consequently this justifies the power of parliament to ‘legally legislate on any topic whatever, which is a fit subject for legislation.’

Conclusion

In conclusion, after evaluating all the limitations above, it would be rightly justified to say that a majority would agree that they were political rather than legal limits imposed on parliament’s sovereignty of power. Thereby, with the supported arguments above, it seems right to agree on A V Dicey’s statement above as there was greater validity.

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