The Relationship Between Parliamentary Sovereignty and the Rule of Law

1720 Words May 3rd, 2013 7 Pages
The Rule of Law and the Orthodox Doctrine of Parliamentary Sovereignty are constitutional concepts which were popularised by Albert Venn Dicey, an influential 19th century constitutional lawyer. Therefore, it seems only appropriate to begin this discussion with Dicey’s interpretation. In Dicey’s formulation, Parliamentary Sovereignty is comprised of two aspects, the positive and the negative. The positive side is that Parliament can ‘make or unmake any law’ and the negative aspect is that ‘no court or other body’ is recognised as having the ‘right to override or set aside the legislation of Parliament. ‘The Rule of Law is a chameleon-like notion. Used by different people it may mean radically different things’. From this statement, it is …show more content…
The Rule of Law dictates that because this is a retrospective act, it should not be allowed, as it runs counter to the rule of law in its second sense, which is covered in Lord Bingham’s expansive meaning of the Rule of Law. Nonetheless, Parliament can make or unmake any law it wishes under the traditional doctrine of Parliamentary Sovereignty, and this, therefore, includes retrospective laws. This case is authority for a situation in which the Orthodox Doctrine of Parliamentary Sovereignty and the Rule of Law come into conflict. However, in this particular case, Parliamentary Sovereignty overcomes and takes priority over the rule of law. Thus, this is one reflection of the relationship of Parliamentary Sovereignty and the Rule of Law; that Parliamentary Sovereignty outplays the Rule of Law. Nevertheless, Parliamentary Sovereignty has received some judicial criticism that has suggested that it is merely construct of the common law which judges can qualify to uphold the Rule of Law. The case that illustrates this point is Jackson v Attorney General. In this case, the Hunting Act 2004 received Royal Assent and House of Commons assent but the Lords never agreed it as it was a hugely controversial piece of legislation. Despite this, the Act was still valid as it complied with the 1949 statutory

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