Contitutional Law

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“I myself would consider there were advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold” (Lord Woolf MR, ‘Droit Public – English Style [1995] Public Law 57,69) Discuss

1. Introduction
The above extra judicial argument of Lord Woolf is the spark but not the essence of discussion within the light of this essay as his democratic criticism has more to do with political constraints on the power of Parliament to legislate as it pleases and less to do with legal limitations to Parliament‘s legislative authority. For example, Lord Woolf has contended that ultimately, the rule of law could validly limit the so-called absolute power of Parliament to legislate as it pleases. “… if Parliament did the unthinkable, then I would say that the courts would also be required to act in a manner which would be without precedent.” All that can be said of Lord Woolf‘s criticism of the Diceyan view of parliamentary sovereignty is that it is based on an unrealistic scenario and is thus unsupportive. His Lordship himself indicated that in refusing to obey an Act of Parliament on grounds of the rule of law, the courts would be acting without precedent. What is of essence to this essay is the recent constitutional changes that common law declarations pose for the sovereignty of the parliament i.e the extent that the courts, in pursuance of their interpretative obligations, debunk from a position of absolute judicial obedience to primary legislation as demanded by the traditional concept of parliamentary sovereignty, to a position that appears to challenge the traditional concept. The first constitutional development is the enactment of the European Communities Act of 1972. Section 2(1) and (4) of the Act imposes an obligation on the courts to construe all legislation in a manner that accords priority to directly effective Community law over any inconsistent provision of national law. The enactment of the Human Rights Act of 1998, follows giving effect to the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. Section 3(1) of the Act imposes an obligation on the courts to construe and give effect to all legislation in a manner that complies with the Convention rights, ‘so far as it is possible to do so’. It is observed that the above statutory provisions impose interpretative obligations on the courts, requiring them to construe primary legislation in a manner significantly different from the conventional methods of statutory interpretation, each introducing a new and powerful statutory rule of interpretation of primary legislation with the potential of affecting the traditional concept of parliamentary sovereignty. Recent judicial dicta particularly the case of Jackson v Her Majesty’s Attorney General, where a number of their Lordships in dicta questioned the continued relevance of the traditional concept in light of the 1972 Act and 1998 Act hence raising questions about the possible impact of the interpretative obligation under the provisions on the traditional concept of parliamentary sovereignty. These pronouncements appear to suggest that judicial attitudes to the traditional concept of parliamentary sovereignty has changed, or is changing, as a consequence of the interpretative obligation imposed on the courts by section 2(1) and (4) of the 1972 Act and section 3(1) of the 1998 Act. The dicta tend to suggest that the rule of absolute judicial obedience to an Act of Parliament no longer applies.

2. The foundations of Parliamentary Sovereignty
According to Professor A.V. Dicey parliamentary sovereignty was “the dominant characteristic of our political institutions” and meant:- ”…neither more nor less than this, namely, that Parliament… has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or...
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