Principle Of Parliamentary Sovereignty Research Articles

Supremacy of the Parliament and the Rule of Law in the UK: An Analysis

The United Kingdom is a constitutional monarchy, which means that the monarch must abide by a constitution that outlines the powers and limitations of the government. In the UK, the concept of the rule of law is central to the functioning of the legal system, and the principle of parliamentary sovereignty is considered to be a fundamental aspect of the constitution. However, the concept of the royal prerogative, which is the set of powers and privileges that historically belonged to the monarch, still exists. These powers include the right to appoint and dismiss ministers, to issue pardons, to grant honours and titles, to declare war, and to sign treaties. Although many of these powers have been transferred to the Parliament, some remain with the monarch and their use is subject to limited judicial review. While the concepts of the royal prerogative and parliamentary supremacy remain important aspects of the UK's constitutional framework, they must be balanced against the principle of the rule of law. The use of executive power must be subject to legal scrutiny, and Parliament must continue to act as a check on the government's actions to ensure that they are consistent with the rule of law.

The Effect of Treaty Withdrawal on Implementing Legislation

This article explores the effect of treaty withdrawal on domestic legislation implementing a treaty in the Australian constitutional context. In R (Miller) v Secretary of State for Exiting the European Union (‘ Miller’), the Supreme Court of the United Kingdom held that the executive cannot exercise its prerogative power to withdraw from a treaty where that withdrawal would frustrate or invalidate domestic law. This article contends that treaty withdrawal would be unlikely to have this effect on a law implementing a treaty in the Australian context. The article ultimately draws two conclusions. First, a law implementing a treaty would likely survive treaty withdrawal in most cases due to the law’s enduring nexus with Australia’s foreign relations, enabling its continued characterisation as a law ‘with respect to’ s 51(xxix) of the Constitution. Secondly, in the event that withdrawal does lead to a loss of constitutional support, the law would likely become prospectively invalid from the date of effective withdrawal (an outcome identical to legislative repeal in its effect). The article contends that this outcome would not, however, engage the constraint on executive power so emphatically reasserted in Miller. This is because the law’s invalidity is consistent with the implied will of the legislature and thus reinforces, rather than contravenes, the fundamental principle of parliamentary sovereignty which the constraint on executive power protects.

From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel

Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the “constitutional revolution” of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992- which included a limitation clause - and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. At that decision the Supreme Court stated that all basic laws - even if not entrenched - have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled “Basic-Law” is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution - that is, basic laws - addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review. Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional-not regular-legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court arguing that the Knesset’s constituent power is actually being “abused”. These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent? This paper examines the almost unique position of Israeli jurisprudence in relation to the doctrine of “unconstitutional constitutional amendments.” It focuses on the possibility of applying the doctrine in the Israeli case-laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of the paper is that in light of the unbearable ease by which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.

From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel

Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the “constitutional revolution” of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992- which included a limitation clause - and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. At that decision the Supreme Court stated that all basic laws - even if not entrenched - have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled “Basic-Law” is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution - that is, basic laws - addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review. Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional-not regular-legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court arguing that the Knesset’s constituent power is actually being “abused”. These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent? This paper examines the almost unique position of Israeli jurisprudence in relation to the doctrine of “unconstitutional constitutional amendments.” It focuses on the possibility of applying the doctrine in the Israeli case-laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of the paper is that in light of the unbearable ease by which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.

Brexit and Parliamentary Sovereignty

This note addresses the implications of R (Miller) v Secretary of State for Exiting the European Union for the legal principle of parliamentary sovereignty, and argues that the strong restatement of the latter is the most significant feature of the decision. The aim here is to show how traditional principle in the Dicey tradition has been strongly applied against the competing claims of EU law, the royal prerogative, the referendum and devolution. However, the note also argues that the claims relating to parliamentary sovereignty could have produced a different result and that the most compelling feature of the case was the argument that was not forcefully put by the Government, namely that Parliament had already provided sufficient authority for the triggering of Article 50.

'Law, Liberty and Entick V. Carrington'

Entick v. Carrington is generally known for a set of legal propositions for which it stands as authority, notably that express legal must be shown for interferences with legal rights. A few lines from Camden’s opinion are piously quoted in every textbook, especially those establishing a common law right of property rooted in natural law: The great end for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law. In this chapter, I would like to suggest that the value of Camden’s opinion does not in the main reside in this somewhat rhetorical incrustation of a natural law argument. Part one is devoted to a brief analysis of the common law approach to liberty, of which Entick v. Carrington appears as a fine example. Part two attempts to show how the case reads, in Camden’s own terms, as an inquiry into authority which aims at removing all semblance of legitimacy to the abuses of power committed at Entick’s house. Part three aims at showing in what way Entick v. Carrington paves the way for many legal features of the modern state, notably a rationalized system of legal sources and the principle of parliamentary sovereignty. It deserves to be remembered as a move in the direction of the positivist legal approach to the state.

10.5937/pravzap0-6298 = The human rights act: Its impact upon the constitutional system of Great Britain

The author analyses some of the effects of the 1998 Human Rights Act upon the constitutional system of the United Kingdom. Namely, the passing of this Act gave rise to a discussion of its impact upon the principle of Parliamentary sovereignty. Also, it has been frequently asked if this Act introduces a certain form of judicial review. The author concludes that the answer to both questions is negative, although The Human Rights Act has certainly transformed some aspects of the constitutional system of the United Kingdom.

The principle of parliamentary sovereignty

In this paper, I use Dworkin's distinction between rules and principles to analyse the doctrine of parliamentary sovereignty. I argue that, inherent in many conceptions of the doctrine, is an assumption that it operates in the conclusive manner of a Dworkinian rule. I then submit that the doctrine actually functions in the flexible way characteristic of a Dworkinian principle. In support of this contention, I argue that Acts of Parliament may be balanced against competing principles or statutes; that they possess the dimension of weight or importance; and that the degree to which they will be adhered in any particular case will be contingent upon the importance attributed to any competing principle or statute. I finish the paper with an evaluation of my arguments and an attempt to anticipate potential counter-arguments.

Review: New Politics, New Union?

Politics in Scotland since devolution has settled into an argument between nationalism and unionism. With home rule, the old division between SNP fundamentalists and gradualists was buried as both sides united under the slogan of 'we are all fundamentalists now', bound together on the next stage of their journey. The Conservatives abandoned their historic opposition to home rule and drew the new line of defence for the union at the same point as Labour a devolved Parliament in a unitary state, with the principle of parliamentary sovereignty preserved by fiat i f not by logic. The Liberal Democrats, who have historically favoured federalism but have never been able to explain how it would work, joined them. After the SNP victory of 2007, the three parties banded together under the label of 'unionist', an appellation previously tainted by Irish associations and Protestant supremacy.

Allies or Subversives? The Judiciary and Democracy

In the search for democracy, are judges allies or subversives? Until very recently, British constitutional law appeared to present a relatively straightforward answer to this perennial dilemma: judges are only allies if their power is clearly subordinate to that of Parliament. In terms of constitutional theory, this faith in the political process and corresponding distrust of the judiciary is expressed through the principle of parliamentary sovereignty. However, the imminent enactment of a Human Rights Act in Britain compels a reconsideration of this response. It is true that the judiciary has always played a significant role in law-making through the common law and statutory interpretation. It is true, too, that non-constitutional judicial review has developed vigorously in the past few decades. Yet it has always been possible to assert, not least by the judiciary, that law-making of this sort is subordinate to parliamentary law-making and is justifiable by and legitimated in terms of parliamentary intent. Parliamentary sovereignty has, of course, been challenged explicitly by membership of the European Union. Faced with the confident assertion by European Community institutions of the sovereignty of European Community law, the judiciary has gradually shifted its allegiance from Parliament and acknowledged the supremacy of EC law in its sphere of operation. This shift of allegiance is revolutionary in one way. Nevertheless, judicial law-making remains subordinate, although to a differently constituted legislature.

An Entrenched Bill of Rights for the United Kingdom: The Constitutional Dilemma

In 1974 Sir Leslie Scarman, in delivering the twenty-second Hamlyn lecture, proposed a written Bill of Rights for the United Kingdom that would be “entrenched” and hence binding on Parliament even without a written constitution. (Entrenchment is sometimes used to describe a process whereby an Act of Parliament incorporates a Bill of Rights but provides that any subsequent legislation will be deemed to be in compliance with that Bill unless it clearly manifests a contrary intention.) The controversy and constitutional commentary surrounding Scarman’s proposal in the 1970s continues to have relevance for the nature of the British constitution. Historically and still today theoretically, the unwritten British constitution rests on the principle of parliamentary sovereignty and the implication that Acts of Parliament are not subject to judicial review and that judges must adhere to the last expression of Parliament.This article suggests that entrenchment is not possible because it creates fundamental law by an Act of Parliament, something that for all its authority Parliament cannot do. Entrenchment attempts to alter fundamentally the structure of government without a corresponding change in constitutional premises. Proponents of entrenchment seek to achieve constitutional change without discarding the traditional theory of parliamentary sovereignty. Obviously, constitutional reforms would fare better if they were compatible with the orthodoxy associated with A.V. Dicey’s view of the British constitution, that the last expression of Parliament is the supreme law of the land. Unfortunately the essence of fundamental law and the nature of entrenchment force a conflict between theory and reform. Proponents of entrenchment advanced numerous arguments and precedents supposedly offering constitutional justification, seeking to reconcile the theoretical demands and implications of parliamentary sovereignty with entrenchment. Entrenchment, however characterized, involves a fundamental alteration of the legal and political order. An entrenched provision would serve the same function as a written constitution: law that the legislature could not change save by specified amendment. As fundamental law it must derive its existence from the ultimate source of legitimate authority – those governed – and not simply by legislative fiat. For entrenchment to be effective requires some form of explicit consultation with the people.The passage of the Human Rights Act of 1998 and the creation of a Supreme Court for the United Kingdom that began operating in 2009 have raised the specter of judicial review and challenges Britain’s constitutional legacy of parliamentary sovereignty. The Human Rights Act was passed to rectify the oddity that a British subject whose rights under the European Convention of Human Rights were being violated could not get legal redress in a British court, but had to seek relief from the European Court of Human Rights in Strasbourg. The Act requires judges to interpret all legislation as compatible with the Convention to the extent possible. If the legislation cannot be interpreted consisted with the Convention then the courts may issue “a declaration of incompatibility,” but the statute remains in force until and unless Parliament decides to alter the statute. Thus, parliamentary sovereignty remains theoretically intact.The tensions and ongoing debate over the nature of the British constitution reflect the desire to place human rights and liberties beyond the control of Parliament while still acknowledging the sovereignty of parliament.