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Uk's Constitution: The Rule Of Law And Parliamentary Sovereignty

2184 words - 9 pages

Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.

The case of Jackson v Attorney General scrutinised the relationship between the rule of law and parliamentary sovereignty in a fresh manner, suggesting that there were restrictions to sovereignty where constitutional fundamentals were at risk . The courts were asked to examine whether the Hunting Act 2004 and Parliament Act 1949 were legal Acts of Parliament, on procedural grounds. It was argued that they did not comply with the legislative requirements mentioned in the Parliament Act 1911, and hence were invalid. Under the Act, it was an offence to hunt wild mammals with dogs except within limited conditions. The Bill was passed using a process under the Parliament Acts of 1911 and 1949, without the approval of the House of Lords.

Refusing to make the declaration, the House of Lords upheld that the 1949 Act has been sanctioned validly using the 1911 Act, and that the Hunting Act had been approved using the modified process. It was affirmed that the courts cannot challenge the validity of primary legislation, regardless of how an Act has been passed. However, it was not an Act of the sovereign Parliament, only the outcome of a process authorised by a sovereign Parliament in the past . The reasoning behind it is that the Parliament Acts of 1911 and 1949 aided the Crown and the House of Commons to pass laws as primary legislation, but they expressly implemented limitations at the same time, particularly excluding the right to elongate the Parliament’s lifetime.

The crucial issue may be deemed as a matter of legislative interpretation, specifically, in terms of the significance of the Parliament Act of 1911. The judges have used at least five approaches by while interpreting section 2(1) of the 1911 Act. However, Jackson discussed a broad range of matters associated with Parliamentary sovereignty, which makes it remarkable. The case raised issues of supremacy in practice, as Lord Hope stated, 'the English principle of the absolute legislative sovereignty of Parliament...is being qualified' . This examination of the wider issues indicates that, a deviation from orthodox opinions on the principles of the UK's constitutional mandate may be gaining support in...

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