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    Saturday, 4 February 2017

    Supremacy of British Parliament

    1. The growth of the legislative authority of the Parliament
    It was recognized in the middle ages that an Act of Parliament could .change the common law. With the Reformation there disappeared the idea that there were certain ecclesiastical doctrines that Parliament could not touch. Henry VIII and Elizabeth I made the Crown of England supreme over all persons and causes and used the English Parliament to attain this end.

    a. Historical introduction
    In the nineteenth century the prevailing juristic theory in this country was Austin's doctrine of sovereignty, which supposed that in every mature legal system there was some person or body, the "Sovereign", vested with unlimited power to make law.

    b. Establishment of parliamentary supremacy
    The establishment of parliamentary supremacy was a product of the revolution of 1688. Before then the chief rivals were, first, the King or king in council, and then the common law courts. Later the House of Commons acting by resolution occasionally threatened a breach in the authority of the Parliament as a whole.

    c. Growth of ministerial responsibility
    The Bill Rights and the Act of settlement established the legislative authority of the English Parliament vis-à-vis the Crown, while preserving the prerogatives of the Crown in matters which had not been called in question. But it was not yet recognized that the responsibility of the .King's ministers could best be achieved through their presence in Parliament.

    The first step was to ensure the individual responsibility of Ministers to Parliament for their actions and, secondly, collective responsibility for general policy and for the action of other, ministers.

    d. The king as lawmaker
    Parliament emerged as an effective body in the fourteenth century. In the reign of Henry VI the Lords and Commons framed the statutes and the King assented in much the same fashion as at the present day.

    e. Proclamations
    The Statute, of Proclamations 1539, which gave the King power, with the advice of the Council, to Make proclamations that would have the force of statutes, was of very limited scope and short-lived.

    f. The suspending and dispensing powers
    By virtue of the, suspending power the king claimed to postpone indefinitely the general operation of a given statute; by virtue of the dispending power he relieved particular offenders or classes of offenders from the statutory penalties they had incurred.

    e. Monopolies
    Formerly the granting of monopolies by the monarch was presumed to inflict a hardship on the public. In a case Darcy, a servant of Elizabeth I and grantee of the sole rights of importing and making playing-cards, sued alien for interfering with his grant. The court held that the grant was a monopoly, hence void.

    f. Taxation
    It was supposed to have been settled by Magna Carta and by legislation in the resigns of Edward I and Edward III that taxation beyond the levying of customary feudal aids required the consent of Parliament.

    g. The judges and a High Law
    Medieval judges, though appointed by the King, had inherent authority to declare and apply the law, which was mainly feudal and customary, even against the king; and they could develop the law, within the limits set by a narrow range of sources, to meet new situations.

    2. Legislative Supremacy of Parliament
    The Legislative Supremacy of Parliament means that Parliament can pass laws on any topic affecting any person, and that there are no fundamental laws which Parliament cannot amend or repeal in the same way as ordinary legislation. Dicey was following the tradition of Coke and Blackstone when he said that Parliament has the right to make or unmake any law whatever, and further that no person or body is recognized by the law of England as having the right to override or set aside the legislation of Parliament.

    a. Explanation of Legislative supremacy
    Legislative supremacy as thus defined is a legal concept. The supremacy of Parliament being recognized an acted on by the courts, is a principle of the common law. It may indeed be called the one fundamental law of the British Constitution, for it is peculiar in that it could be not be altered by ordinary statute, but only by some fundamental change of attitude on the part of the courts resulting from what would technically be a revolution.

    b. Only an act of Parliament is supreme
    The courts do not attribute legislative supremacy to the following and will if necessary decide whether or not they have legal effect;

    i. a resolution of House of Commons
    ii. a proclamation or other document issued by the Crown under prerogative powers for which the force of law is claimed;
    iii. a treaty entered into by the government under prerogative powers which seeks to change the law within territory subject to British jurisdiction;
    iv. an instrument of subordinate legislation which appears to be issued under the authority of an Act of Parliament.

    c. Examples of subject-matter
    Examples of the positive aspect of the legislative supremacy of Parliament as regards subject-matter are;
    i. the Septennial Act 1715, extending the maximum duration of the existing and future Parliaments from three to seven years;
    ii. the Parliament Act 1911 and 1949, restricting the power of the House of Lords to withhold its assent to public Bills (especially money Bills), and reducing the maximum duration of a Parliament to five years;
    iii. the prolongation of its own life by annual Acts to eight years by the Parliament that passed the Act of 1911, and annual prolongations during the last war of the life of the Parliament that was elected in 1935;
    iv. the Act of Settlement 1700, which regulated the succession to the throne on the failure of Queen Anne's issue, and His Majesty's Declaration of Abdication Act 1936, which varied that succession;
    v. the Union with ,Scotland Act 1706, by which the English Parliament extinguished itself and transferred its authority to the new Parliament of Great Britain;
    vi. the Government of Ireland Act 1920 and the Irish Free State Agreement Act 1922, dissolving the union between Great Britain and Ireland (which had been created by the Union with Ireland Act 1800), setting up a subordinate legislature in Northern Ireland and giving Dominion status to the Irish Free State.

    d. Composition of the parliament

    Parliament is also free to alter its own composition. The. composition of the House of Commons may be affected by redistribution of seats, alteration of the franchise or changes in the disqualifications for membership. The composition of the House of Lords has been affected by extending the qualification of coquettish, and the creation of life peerages and Lords of Appeal. Parliament could confine membership of the House of Lords to life peers.

    f. Persons and areas
    With regard to persons and areas, since Parliament is the parliament of the United Kingdom its Acts are presumed to apply to the United Kingdom and not to extend further. If an Act is not intended to apply to Wales, Scotland or Northern Ireland, or if it is intended to apply outside the United Kingdom, e.g. to a colony, this must be expressly stated.

    g. Can Parliament bind its successor?
    No Parliament may bind its successors all future Parliaments must have the same attribute of sovereignty as the present Parliament.

    3. Practical limitations upon the supremacy of the parliament
    There are in practice, of course, factors which Parliament’s ability to pass any laws it likes, or, rather, which limit the choice of measures that the government puts before Parliament for approval.

    a. The mandate or party manifesto
    The government is expected to carry out the policy (if any) indicated at the last general election and is not expected to act contrary to that policy, according to the general and rather vague doctrine of the mandate, which seems to have been invented in the latter part of the nineteenth century. But a government acts for the whole people, not only those who voted for their party.

    b. Public opinion
    Parliament must also take account of the even vaguer concept of "public opinion." Public opinion expresses itself through the press, radio, television, trade unions, industrialists, local councilors, party organizations and in countless other ways. The manner in which it is interpreted by the government and other members of Parliament must obviously affect Parliament's activities, including the passing of legislation.

    c. Consultation of organized interests
    In modern times the government does not in practice introduce legislation affecting well-defined sections of the community without first consulting organizations of the groups specially concerned. or interested ("pressure, groups"). In matters affecting industry or trade, for example,. the Minister proposing to initiate legislation would consult the employers' associations, chambers of commerce and the trade unions, notably the officers of the Trade Unions Congress and the Confederation of British Industry.

    d. International Law
    The customary principles of International law are said to be part of the law Of England, but treaties do not automatically become part of English law.

    International law as such does not bind Parliament, although the activities of the Parliament are; in fact, restrained by considerations of international law and the comity of nations. There is a presumption that Parliament does not intend to legislate contrary to the principles of International law, and a statute would be interpreted as far as possible so as not to conflict with them; but the legal power of Parliament to make laws contrary thereto remains, and redress would have to be sought by diplomatic action and not through the courts.
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