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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