Parliamentary sovereignty is considered one of the fundamental concepts of the UK constitution. In order to better understand the doctrine of parliamentary sovereignty it is important to consider some brief background on parliament including the origins of the theory of parliamentary sovereignty. The UK Parliament which is made up of the House of Lords, House of Commons emerged in the 13th century and is regarded as the second of the two sovereign authorities under english law (Tomkins, 2003). The original parliament was created out of the necessity of the Crown obtaining consent for governing matters such as revenue. The parliament has three general functions, the first of which is to maintain the government in office which means the government
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The second function of the parliament is to serve as a medium for the representation of grievances to the Crown, which considering the fact that Parliament is in control of the funding means the Parliament can barter with the crown— no monetary support until a certain grievance is addressed and amended (Tomkins, 2003). The final function of the Parliament is to Legislate (Tomkins, 2003). This essay will be outlining the doctrine of Parliamentary sovereignty and it’s origins and using relevant caselaw and literature address the question of whether or not the traditional doctrine of parliamentary sovereignty has remained an immutable part of the UK constitution.
Background on the emergence of parliamentary sovereignty as a doctrine: The origins of the concept of Parliamentary sovereignty are often attributed to Albert Venn Dicey and his doctrine of the sovereignty of parliament. Dicey’s doctrine was made up of three limbs said to be the framework of the doctrine. The first limb, which is known as the positive limb states that Parliament is within it’s rights to make or unmake any law. As a result of this power, an Act of Parliament is …show more content…
One of such instances is illustrated in the case of R v Secretary of State ex p. Factortame (No. 2) where the European Court of Justice held that the provisions of the 1988 Merchants Shipping Act were to be dis-applied by the courts if they opposed EU law. This action of the court is cited by Sir William Wade as an exception to the rule expressed in the third limb of Dicey’s doctrine of parliamentary sovereignty which is that one Parliament cannot bind or be bound by another. An opposing argument to that theory is that the outcome of the case was merely a result of statutory construction—which means that the court took certain external factors into consideration— and not an opposition to the sovereignty of parliament. Paul Craig claims that this opposing argument would likely favour the judges because it does not suggest a possible limitation of parliament. It was also argued by Mr David Vaughan that it is up to the court to determine interpret an act of parliament considering all things, including previous acts and also noted by him that simply because certain conditions are applied to a later Act as a result of a previous act that would not otherwise be applied then that does not challenge the sovereignty of
The second function of the parliament is to serve as a medium for the representation of grievances to the Crown, which considering the fact that Parliament is in control of the funding means the Parliament can barter with the crown— no monetary support until a certain grievance is addressed and amended (Tomkins, 2003). The final function of the Parliament is to Legislate (Tomkins, 2003). This essay will be outlining the doctrine of Parliamentary sovereignty and it’s origins and using relevant caselaw and literature address the question of whether or not the traditional doctrine of parliamentary sovereignty has remained an immutable part of the UK constitution.
Background on the emergence of parliamentary sovereignty as a doctrine: The origins of the concept of Parliamentary sovereignty are often attributed to Albert Venn Dicey and his doctrine of the sovereignty of parliament. Dicey’s doctrine was made up of three limbs said to be the framework of the doctrine. The first limb, which is known as the positive limb states that Parliament is within it’s rights to make or unmake any law. As a result of this power, an Act of Parliament is …show more content…
One of such instances is illustrated in the case of R v Secretary of State ex p. Factortame (No. 2) where the European Court of Justice held that the provisions of the 1988 Merchants Shipping Act were to be dis-applied by the courts if they opposed EU law. This action of the court is cited by Sir William Wade as an exception to the rule expressed in the third limb of Dicey’s doctrine of parliamentary sovereignty which is that one Parliament cannot bind or be bound by another. An opposing argument to that theory is that the outcome of the case was merely a result of statutory construction—which means that the court took certain external factors into consideration— and not an opposition to the sovereignty of parliament. Paul Craig claims that this opposing argument would likely favour the judges because it does not suggest a possible limitation of parliament. It was also argued by Mr David Vaughan that it is up to the court to determine interpret an act of parliament considering all things, including previous acts and also noted by him that simply because certain conditions are applied to a later Act as a result of a previous act that would not otherwise be applied then that does not challenge the sovereignty of