1. Legislative Sovereignty of Parliament
The
"Legislative Supremacy of Parliament" means that Parliament (i.e. the
queen, Lords and Commons in Parliament assembled) can pass laws on any topic
affecting any persons, and that there are no "fundamental" laws which
Parliament cannot amend or repeal ill the same way as ordinary legislation.
Dicey was following tilt 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 and 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 riot 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
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;
ii. the
Union with Scotland Act 1706, by which the English Parliament extinguished
itself and transferred its authority to the new Parliament of Great Britain;
iii.
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.
2. Sovereignty to 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 Scottish
peers, and the creation of life peerages and Lords of Appeal. Parliament could
confine membership of the House of Lords to life peers.
a.
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.
b.
Can Parliament bind its successors?
No
Parliament may bind its successors all future Parliaments must have the same
attribute of sovereignty as the present Parliament.
i. Some
matters authorized by legislation are of such a kind that once done; they
cannot be undone by further Act. Thus, over 60 years after Parliament approved
the cession of Helgoland to Germany in 1890, Parliament repealed the statute by
which cession was approved. But in so doing, Parliament had no expectation that
this would recover the territory for the United Kingdom.
ii.
In a different way, Parliament may bind future Parliament by altering the rules
for the composition of the two Houses of Parliament or the succession to the
throne. Thus in 1832, when Parliament reformed the House of Commons to secure
more democratic representation, later Parliaments were bound by that legislation
inasmuch as the only lawful House of Commons was one elected in accordance with
the 1832 Act.
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 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.
0 comments:
Post a Comment