Parliamentary Sovereignty

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When we talk about 'Parliament' and 'parliamentary sovereignty' what exactly do we mean? Firstly we must take the word 'Parliament' to mean not the actual Houses of Parliament themselves but instead the Acts passed by Parliament with the consent of the Commons, Lords and the Queen. The doctrine of parliamentary sovereignty is about the relationship between those who create the Acts (Parliament) and those who must apply them (courts). The argument we find ourselves trying to answer is who in fact has the supreme power? Is it the law makers or those who must apply the law? To present an analogy of the problem we could ask who has supreme power in a game of football or rugby. Is it the governing body who make the rules or is it the referee who must apply the rules in each game using his discretion as each situation occurs. The analogy may seem crude but judges find themselves in the exact position of referees. The question therefore remains, who is supreme? When Dicey published The Law of the Constitution in 1885 he identified parliamentary sovereignty as meaning that, 'Parliament has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.' To look at this much quoted statement in more detail we can find a lot of evidence to support his view. It has been shown over the years that courts are totally unwilling to question the legitimacy of statutes unless there is some question as to them not being passed using the correct procedure. As long as an Act has passed through both Houses and received the Royal Assent judges will not argue whether or not a statute should or should not exist but will merely try to apply the statute. One of many examples of this is the case of Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710. In this case a man was appealing to the court against a private Act obtained by the railway company as it adversely affected him. The court however would have nothing to do with it and Lord Campbell pronounced, '...all that a court of justice can do is to look at the Parliamentary roll: if from that it should appear that a bill has passed both houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, what was done to it previously being introduced, or what passed in Parliament during the various stages of its progress through both houses of Parliament.' From this it is quite clear that courts will obey statutes as long as they are passed correctly but that ordinary courts have no jurisdiction, nor are they willing, to enquire into issues concerning the internal affairs of Parliament. This is known as the 'enrolled Act' rule. It was again shown in the case of Ex Parte Canon Selwyn (1872) J.P. 54. and also was emphasised over a hundred years later in the case of Pickin v British Railways Board [1974] AC 763. This again concerned the plaintiff arguing over the validity of a private Railways Act. Lord Reid reiterated the words of Lord Campbell in Edinburgh & Dalkeith and stated in judgement, 'For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, and I would only support it if compelled by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation.' Once again this shows the courts unwillingness to question the validity of an Act. Lord Morris also said in this case, 'It is the function of the courts to administer the laws which Parliament has enacted. In the process of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is...
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