Government college university FSD

Submitted to: Sir Amir Abbas

Submitted by: Abeeha mahmood

Roll Number: 5354

Subject: UK Constitution

Topic: supremacy of parliament

Semester : 3rd

Degree: LLB

Department: college of law

Topic:

Wshen any constitution in a democratic country which has whether written or unwritten is
examined, it can be seen that ultimate authority stems from a statute, convention or history. If a
country has a written fundamental document, it is governed by representatives with reference to
the formal constitution and it is generally interpreted by constitutional court.What if a country
such as the UK has not got a written constitution? This issue is highly divisive amongst jurists in
United Kingdom due to the fact that there are various reasons as below mentioned. In
consideration of the history of British constitutional law in the last century, it could be concluded
that the Dicey theory was the most influential theory amongst the other theories. According to
Dicey, “Parliament has under the English constitution, the right to make or unmake any law
whatever; and further,... no person or body is recognised by the law as having a right to override
or set aside the legislation of Parliament.” Notwithstanding the notion, which explained the
sovereignty of parliament, have shaped the pillar of British constitution, there are a number of
sophisticated academic arguments against the doctrine. In recent years, notably, the theory has
been discussed in the light of the European Union Law, the European Convention on Human
Rights and Devolution. At this point, various authors continue to advocate conventional
approach and they believe that it has an absolute power and it can change whatever it wants.
Some, however, encounter this stance and they argue that even though parliamentary sovereignty
is a fundamental rule of British constitution, its authority is limited to some extent. For instance,
Lord Hoffmann highlights that despite the fact that Parliament has the power to make primary
legislation contrary to rights in legal area, the aspect of the UK courts, even though
acknowledging the sovereignty of parliament, they should consider those rights cannot be
restricted by any power.This will analyse the debate on parliamentary sovereignty from history
to today in consideration of the above issues and Lord Hope words; “Our constitution is
dominated by the sovereignty of parliament but parliamentary sovereignty is no longer, if it ever
was, absolute.” It, then, will reach a consequence, which is absolute parliamentary sovereignty
has no place in contemporary British constitution.

The parliament emancipation is based totally on the guideline of regulation. The supremacy of
parliament is designated in major components which might be the unlimited legislative
sovereignty of parliament and second is the deficiency of any competing electricity inside the
country of carrying out the overriding acts of assembly. It is been consider that parliament have
the remaining strength to make whatever viable. “Parliament can do something or everything but
make a man a woman or vice versa i.E. Can do anything they like to do that is naturally not
possible. It is said “England may want to by no means be ruined but by means of a Parliament”.
This belief of Burleigh is quoted by using Blackstone in his commentaries.

In addition to this Jack Beatson also point out in his article that Blackstone will no longer be
given his title due to the fact Blackstone describes the individuals of parliament “as the guardians
of English constitution ” which is also said within the article. In Jack Beatson article it is stated
that parliament position has been changed on January 1 1973 while United Kingdom have
become the member of European Union. Therefore it's far clean that courts have located that
Sovereignty of Parliament has been confined. It is been considered with the aid of Vernon
Bogdanor in his book that the access of Britain in European Union have taken out the antique
charter with the new charter. It is stated that the brand new British constitution shows the
constitutional flow from the principle of parliament sovereignty, to the dicey constitution to the
human rights act 1998 that's stated in ebook “the cornerstone of the brand new constitution”. In
this parliament sovereignty while the doctrine establishes because the citation of Dicey
regulation of the charter well-knownshows that it is the prison supremacy of statute that is quite
not much like the sovereignty of parliament. Parliaments can also by statute make or unmake any
regulation which courts are obliged to uphold and implement it.

It is been stated that parliament can no parliament can bind subsequent parliaments. It manner
that subsequent parliament could make amendments that it needs and there's no compulsion for it
to take the vicinity of the same assumption laid down with the aid of preceding parliament. In a
current article with the aid of Alison young argues that the courts might be furnished with quite
greater capability then the announcement of conflict to protect the convention rights with out
peril the orthodoxy of the legislative supremacy of parliament. However it became additionally
argue that this may now not be possible, because the act enable discourse to take place between
courts and legislative. Due to that it offers more popularity to the claims of democracy than is
feasible through judicial choice making.

Professor HLA Hart the idea of law 1961 holds that the regulations of parliament sovereignty are
part of what he calls the “rule of cognition” inside the prison gadget. It is been observed that the
regulations of recognition is binding because of community attractiveness particularly by way of
its judges and officers. It is stated that the rule of thumb of recognition sustaining our
constitutional machine is said to include the proposition that parliament can not bind itself. There
are two kinds of rules which can be taken into consideration which might be primary policies of
responsibility for example murder is a criminal offense, and there are secondary rules of
recognition.

The diceyan orthodoxy has both the tremendous and bad elements of Dicey’s formula of the
sovereignty of parliament. As it's miles stated within the case of Cheney v Conn it says in this
example that what the statute itself enacts cannot be unlawful due to the fact what the statute
says and gives is itself the regulation, and the very best shape of law this is acknowledged to this
u . S .. It is the law which prevails over each different shape of law, and it is not for the court
docket to say that the parliament enactment the highest law in this country is unlawful. Lord
Hoffmann stated within the case of R v Lyons that “the sovereign legislator inside the United
Kingdom is parliament. If parliament has it appears that evidently laid down the regulation, it's
far the obligation of the courts to apply it, whether or not that could contain the crown in breach
of an worldwide treaty or no longer”.

In the parliament sovereignty the enrolled bill rule establish within the case of Edinburgh and
Dalkeith railway Co v Wauchope . In this situation it was said that the limit of the courts feature
is to observe the parliament position. If the court examines that the act has been advanced or
handed with both Houses of Parliament and obtained royal assent the courtroom has no power to
discover in to the validity of act. It is been additionally stated article nine of invoice of rights
“that freedom of speech and debates or complaints in parliament ought now not to be impeached
or wondered in any courtroom or location out of parliament”.
As a be counted of fact, parliament should amend or repeal the Statute of West Minister. It
turned into said is its S.4 “No parliament shall amplify or to be deemed to extend, to a
dominion… until it's miles expressly declared in that dominion has asked, and consented to the
enactment thereof”. However as Lord Sankey said inside the British Coal Corporation v The
King “that is theory and has no relation to realities” for in practice it'd be the mind-set of the
kingdom courts that could matter, in place of that of the British courts, when any thinking
concerning including amendment came to be decided . It is likewise been stated by way of
Herbert CJ in a case that he said if an act of parliament had a clause in it that it ought to in no
way be repealed yet with none question, the equal strength that made it, may additionally repeal
it.

In addition to this the process for enactment of statute is that a invoice must be examine and
passed three instances by using every Houses, which might be Commons and Lords and after it'll
receive a royal assent. Since the parliament Act 1911, the Commons and Crown have adored the
restrained competency to legislate with out the consent of Supreme Court. In the case of Jackson
v Attorney General has argued that that 1911 Act had established a chosen body comprising
Commons and Monarch best with restricted law making powers. The 1911 act sought to restrict
the powers of Supreme Court. These arrangements had been amended by way of the Parliament
Act 1949, which abridge the duration by means of which the Supreme Court can also postpone
the invoice from years to one year. For instance S.1, Money bills to end up Acts of Pm without
want for Lord sees eye to eye. In e-book it's far said that 1949 act was exceeded the usage of the
1911 Act manner. Jackson argued below the Hunting Act 2004 and Parliament Act 1949 that
1949 act became not assented to by way of lords that it extends regulation-making powers of
Commons and Royal prerogatives which is unlawful. Jackson additionally argued that if 1949 act
is illegal so all of the different acts which made beneath it are also illegal which incorporates the
Hunting Act 2001. HL additionally said that 1911 Act procedure can be used to amend the 1911
act itself. Therefore it is able to be said that 1911 act can adjust the act itself.

Moreover when Jackson argued that there's a designated law frame that ought to make law
without counting the Supreme Court, this argument become rejected with the aid of Lord
Bingham that he stated “lay now not in authorising a brand new form of sub-number one law
however in a new manner of enacting primary rules”. The Supreme Court has a few critical risks
because of these both Acts. The 1911 and 1959 acts will be used to make the fundamental
changes within the constitution that might crumble tests and balances in constitution (e.G.
Abolishing judicial assessment). However with the aid of Steyn .He stated “the traditional
account given with the aid of Dicey of the supremacy of parliament, natural and absolute because
it turned into can not been seen as placed of region in the cutting-edge United Kingdom… in
first-rate situations related to the try to abolish judicial overview or everyday function of the
courts may additionally should consider whether or not this is constitutional fundamental which
even a sovereign parliament… can't abolish”.

As it's far stated earlier that supremacy of parliament is also primarily based on the rule of law.
As Lord Woolf said in his article that the two principal ideas upon which the rule of law relies
upon is the supremacy of parliament in its legislative ability and the opposite that the courts are
very last arbiters as to the interpretation and application of regulation. Under the Dicey’s idea the
rule of law way the absolute supremacy of everyday regulation which connect the effect of
arbitrary strength and excludes the lifestyles of arbitrariness, of prerogative or even huge of
discretionary authority on the a part of government. That the authorities beneath law is to be that
Englishmen are dominated through the law, and through the regulation alone, a man might also
with us be punished for a breach of regulation however he may be punished for nothing else.
Secondly it additionally intended that equality of all men before the regulation as administered
through the everyday courts.

It may be visible that the essential principles of the British constitution were parliamentary
sovereignty and the guideline of regulation which could glance through the supervision of Dicey.
However this issue has been objected with the aid of Jan-Erick lane which he did not fully
recognize the idea of this version. He argued if parliament has sovereignty then how it can be
sure by way of the rule of thumb of law…? If the rule of thumb of law is the muse of nation, then
how can parliament declare a energy not bound by any prison regulations? It is stated that the
rule of thumb of regulation in Government underneath law calls for an independent and unbiased
judiciary and also that the judgments of the judiciary need to be carried out and respected. The
guidelines of law were made to observe thru which parliament; government had made which as
an instance turned into now not accompanied in the case of Entick v Carrington wherein a defend
did now not follow the law underneath government.
In every other experience the guideline of law additionally favors the Parliament sovereignty.
The pressure of regulation constantly hampers the action of executive. It is taken into
consideration that beneath a few sure contingency acquires the right to workout the discretionary
electricity. It has been argued that Dicey become worried of the risk implicit in discretion,
announcing that the guideline of law excluded huge discretionary on the part of the authorities.
The courts are denied with the aid of the Government of any type of discretionary strength.
Kanneth Culp Davis.Has argued approximately the discretionary that elimination of all
discretionary is both not possible and undesirable. If discretionary power is conferred is a huge
and unqualified term there is a danger then it said “that it ought to consider to Dicey, that its
workout may be infected by way of uncertainty, inconsistency or even perversity”

Joseph Raz had stated that “A non-democratically prison device based at the denial of human
rights on huge assets on racial segregation, sexual inequalities and spiritual persecution may
additionally, in precept, conform the necessities of the rule of thumb of regulation better than any
of felony device of the extra enlightened western democracies. Raz additionally argued and
stated that “humans must be ruled by the regulation obey it, that the regulation should be like this
that humans will able to be guided through it”. In his further view he additionally said that the
courts must have review powers over the implementation of different standards.

To finish the Supremacy of the Parliament has a number of the limitations which courts aren't
capable of switch the obligations which considered to be upheld and analyses it. The Parliament
Sovereignty has many drawbacks and the confinements which are not be inalienable. Thus the
supremacy of the rule of thumb of law calls forth exertion of the Parliament Sovereignty and
results in its being exercised in a spirit of legality.

Parliamentary Sovereignty and the UK Constitution

It is important to note that Parliamentary Sovereignty is a multi-faceted concept consisting of

several concurrent powers which are often in tension with one and other. For example, the
constitution of the United Kingdom (UK) is unique, having developed into its current form over
the preceding millennia.[1] In addition to this unique development, the UK’s constitution is also
not codified into a single document. Both the development of the UK’s constitution, and its
uncodified, semi-written status cause difficulty when attempting to appreciate what
Parliamentary Sovereignty consists of. Furthermore, it is proposed that Parliament is still
changing; it is slowly adapting to meet the needs of society as society itself evolves.
Parliamentary Sovereignty and the UK’s constitution are separate entities that are connected by
their common subject matters. In addition to this, discussions on the sovereignty of Parliament
often centre on the theoretical models of Parliamentary Sovereignty. However, the will of
Parliament and sovereignty in action are both tangible matters. This juxtaposition between legal
theory and the practicalities of Parliament’s work is one reason why this area is often difficult to
fully grasp. To understand the nature of Parliamentary Sovereignty, it is necessary to understand
the theoretical ideas that exists around sovereignty and understand their limitations or criticisms.

Conclusion

There is much scope for further discussion around the sovereignty of Parliament, and potentially
for another model of sovereignty to be proposed which attempts to satisfy the failures in each of
the models seen above. Whether it will ever be completely possible to map out the idea of
Parliamentary Sovereignty in the UK is debateable, as the many oddities that have arisen in the
UK’s system over the preceding thousand years have created a working relationship which is as
complex as it is vague. However, it is vitally important that this discussion continues as the lack
of a written constitution and a notion of Parliament that is continually evolving leaves many
questions to consider. The approach to constitutional and sovereignty matters in the UK is
contrary to that taken in many other states; following the UK’s long period of relative stability
(save for the Glorious Revolution), the UK has developed a complex and peculiar set of
constitutional arrangements. The trend over the past century, has been to develop theories and
then try to superimpose these theories onto model that is already functioning. There is scope for
the development of a mode which recognises that sovereignty as a concept is malleable. It does
not necessarily exist solely in the physical Houses of Parliament and nor does exist solely in the
format it did in Dicey’s day. Sovereignty as a concept has changed and continues to change to
reflect the needs of modern society and the UK as an active state in a global environment.
Established theories do not facilitate this, these theories look back in time to try to explain the
current way that Parliamentary Sovereignty operates and yet Parliament has moved on.
The relationships that the UK has with intergovernmental and supranational organisations now
goes far beyond membership of the EU; the UK as a state is woven into the global legal
framework. The UK’s active participation in the United Nations, NATO, World Trade
Organisation and the International Monetary Fund (to name a few) places obligations on the state
which in turn impact on the orthodox notion of absolute sovereignty. Absolute and theoretical
sovereignty must now give way to a pragmatic realist view of sovereignty which includes
recognition of the restriction of Parliamentary Sovereignty that have come about following
decades of active participation in the global community. This could be seen as the development
of the ideas that Lord Denning spoke of in his judgment in Blackburn (above), however more
than just rationalising previous ideas, there is need for a pragmatic and modern approach to
mapping the powers of the state, their origin and ultimately their limitations.  Sovereignty is no
longer absolute, if ever it was, it is conditional and subject to political relationships which carry
obligations and repercussions. This notion will be abhorrent to proponents of the orthodox
doctrine; however, the political landscape of the early 21 st century is a far cry from that of the
mid to late 19th century.

Notwithstanding this proposal, the UK’s decision to leave the European Union poses additional
challenges for legal theorists and public law lawyers. Arguments around the absolute sovereignty
of Parliament in the orthodox sense throughout the campaigns, did little to appraise the general
public of the complex relationship that the state has with the EU and other bodies such as those
abovementioned. Demagogue arguments which have a nostalgic view of sovereignty are so far
from the current political and legal landscape, it is absurd to suggest that the UK can return to
completely independent arrangement; if it indeed ever had it in the first place. The post-Brexit
landscape may seem illusive at this stage, and in terms of the sovereignty of Parliament, there is
little sign of any immediate epiphany or even clarity as to political relationships following the
separation. Questions such as: what relationship will the UK have with the EU; to what extent
will foreign judgments be acknowledged or considered; what of UK companies that operate in
the EU; where does sovereignty stand as the devolved nations build their own legislative and
political portfolio and engage in international relationships post-brexit? These questions will fuel
the continuing debate over the UK’s future relationship with the EU, with other
intergovernmental or supranational organisations, and how the devolved nations see their
relationship developing with the EU after the UK leaves. Exiting the European Union may mask
the need to address the disparity between theoretical sovereignty and the practical work of
Parliament, though only for a short period before another scapegoat appears in popular media
and politics. Will devolution be seen as the next assault on Parliamentary Sovereignty? To close,
a quote often attributed to Seneca is recalled which exclaims “[w]e let go the present, which we
have in our power, and look forward to that which depends upon chance, and so relinquish a
certainty for an uncertainty”.