Parliamentary Sovereignty
Is the orthodox view of parliamentary sovereignty still relevant in the modern British constitution? Why (not)?
1. The orthodox view of parliamentary sovereignty
To define parliamentary sovereignty does not seem too complicated when it is assessed in isolation. Only in connection with other constitutional principles difficult tensions arise. The orthodox view of parliamentary sovereignty is simply that only parliament has the right to make or unmake law and that no other institution can challenge that right. This also includes the rule that parliament cannot bind its successors. Parliament can follow its own procedural rules as it wishes and court cannot examine the procedure by which legislation has been passed (enrolled bill rule).
2. Conflicts with national institutions
This orthodox view has been challenged in the times in the context of judicial review and academic thought.
In 2004 the case R. (Jackson) v. Attorney General raised important questions of the scope of parliamentary sovereignty. One aspect of the case is that the Attorney General, arguing for the government, accepted that the judges had jurisdiction over a procedural question and through that over the question whether the act was a valid statue. That clearly stands in conflict with the traditional enrolled bill rule which says that the courts cannot examine the procedure in which a piece of legislation has passed. Another important issue of the Jackson case is that even though the judges held that the Hunting Act was an Act of Parliament they did not hold that it was an Act of the sovereign Parliament. The reasoning behind that is that the Parliament Acts of 1911 and 1949 enabled the House of Commons and the Crown to enact laws as primary legislation but they at the same expressly conferred limitations (particularly the exclusion of the right to prolong the lifetime of Parliament). Thus the Parliament, consisting of the House of Commons and the Crown has not ‘the right to make or unmake
1. The orthodox view of parliamentary sovereignty
To define parliamentary sovereignty does not seem too complicated when it is assessed in isolation. Only in connection with other constitutional principles difficult tensions arise. The orthodox view of parliamentary sovereignty is simply that only parliament has the right to make or unmake law and that no other institution can challenge that right. This also includes the rule that parliament cannot bind its successors. Parliament can follow its own procedural rules as it wishes and court cannot examine the procedure by which legislation has been passed (enrolled bill rule).
2. Conflicts with national institutions
This orthodox view has been challenged in the times in the context of judicial review and academic thought.
In 2004 the case R. (Jackson) v. Attorney General raised important questions of the scope of parliamentary sovereignty. One aspect of the case is that the Attorney General, arguing for the government, accepted that the judges had jurisdiction over a procedural question and through that over the question whether the act was a valid statue. That clearly stands in conflict with the traditional enrolled bill rule which says that the courts cannot examine the procedure in which a piece of legislation has passed. Another important issue of the Jackson case is that even though the judges held that the Hunting Act was an Act of Parliament they did not hold that it was an Act of the sovereign Parliament. The reasoning behind that is that the Parliament Acts of 1911 and 1949 enabled the House of Commons and the Crown to enact laws as primary legislation but they at the same expressly conferred limitations (particularly the exclusion of the right to prolong the lifetime of Parliament). Thus the Parliament, consisting of the House of Commons and the Crown has not ‘the right to make or unmake