PUBLIC LAW ESSAY

Public Law Essay

Public Law Essay

History

The origins of the principle of parliamentary sovereignty are controversial. Some claim that in England it originated in the early 16th Century, when the parliament asserted the supremacy of statute over the Church. Others argue that originated in the 17th and 18th centuries when Parliament asserted the right to name and depose a monarch. In 1648, Henry Herbert, the 2nd Earl of Pembroke, famously commented while a member of the House of Lords, that "Parliament can do anything but make a man a woman and a woman a man."

Another classic exposition was that of Albert Dicey, in his book Introduction to the Study of the Law of the Constitution (1885):

After the Act of Union of 1707, there was some ambiguity about whether the principle applied in Scotland. It has been suggested that, prior to the Union, parliamentary sovereignty was a principle only of English law, not of Scottish law. Since the Act of Union guaranteed the continuity of the Scottish legal system, some members of the Scottish judiciary maintained the right in theory to rule an Act of Parliament inadmissible. One clear statement of this from the year 1953 was in Lord Cooper's judgment in the case MacCormick v. Lord Advocate. The issue was never been tested, as no Scottish court since 1707 has actually attempted to make such a ruling. But it is now clear that the suggestion that the pre-Union Scottish Parliament was not sovereign is falsei

The doctrine of parliamentary supremacy was upheld by Lord Reid in Madzimbamuto v. Lardner-Burke:"It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid."

Such a theory might not, however, work in practice. In 2004, the Government sought to pass the Asylum and Immigration. Bill, which contained a comprehensive "ouster clause", which would have excluded judicial review of decisions on applications for asylum. There was uproar among judges and lawyers, and the Lord Chief Justice, Lord Woolf, went so far as to suggest that if the clause were to become law, the courts would simply refuse to apply it. Guardian) With a constitutional crisis looming, the government backed down, and the clause became law in a much-diluted form.

However, in each case, the laws have been structured so that there is no theoretical erosion of parliamentary supremacy. Parliament has the power to abolish or overrule any of the devolved legislatures at its pleasure, although it would be unlikely to do so. The European and British Courts have the authority to declare incompatibility or to annul a law only because of an Act of Parliament, the European Communities ...