“The Rule Of Law Has Been Described As An ‘Essentially Contested’ Concept.” School Of Law Essay

2735 words - 11 pages

LI, Jade
The United Kingdom, having an uncodified constitution, is known for its sovereign Parliament. Parliamentary sovereignty is whereby the ruling Parliament has absolute supremacy, this meaning that it takes the position of highest legal jurisdiction and has the ability to make or unmake any statute with few limitations. Due to this principle delegated in the United Kingdom, the judicature particularly seldom take it upon themselves to act as a ‘constitutional court’ and review Acts passed by Parliament. However, as Lord Hope articulated, it is the courts who enforce the Rule of Law. The context of the Rule of Law, although not holding a singular definition, is that no government party or official stands above the law. By being the body that upholds the Rule of law, the courts assume a more prominent stature in the legal dimension. It is in the contention of this essay to critically analyse the dicta of Lord Hope on the proceedings of absolute Parliamentary sovereignty, and the position of the courts within the constitution.
The first matter in question to be critically analysed, is brought up by Lord Hope in the case of Jackson v Attorney General [2005]. Hope entertains doubts towards the principle of absolute Parliamentary sovereignty and furthermore raises uncertainty as to whether it ever truly existed. By adopting A V Dicey’s orthodox frame of reference of Parliamentary sovereignty it would be believed that rulings made by Parliament stands above all, with minor restrictions, moreover no court of law can dispute Acts passed by Parliament.[footnoteRef:1] Therefore, by approaching Lord Hope’s dicta with Dicey’s orthodox perception it brings into question its underlying validity. [1: Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 39-40, 59-60, 75-81) ]
The case of Jackson v Attorney General[footnoteRef:2] is of substantial significance in the legal dimension as it was of the first instance whereby the courts demonstrated their true legal capacity by scrutinising a case based upon an Act passed by Parliament. The central issue of this case was the validity of the Parliament Act 1949 and Hunting Act 2004, as they had been enacted without the consent of the House of Lords which was technically not permitted under the criteria of the Parliament Act 1911. In hind sight, such an action to be carried out by the courts, by acting as a ‘constitutional court’, impede the inherent constitutional doctrine that the judiciary will not review or investigate the procedural process by which an Act is legislated, this principle was exhibited in the Bill of Rights 1689[footnoteRef:3], and further established in Pickin v British Railway Board.[footnoteRef:4] However, although this case seemingly questions the authoritative sovereignty of Parliament, it was not heard to debate the constitutional law, rather to seek an unmitigated interpretation of the 1911 Parliamentary...

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