parliamentary sovereignty
Uploaded by william jones on Dec 07, 2002
When we talk about 'Parliament' and 'parliamentary sovereignty' what exactly do we mean? Firstly we must take the word 'Parliament' to mean not the actual Houses of Parliament themselves but instead the Acts passed by Parliament with the consent of the Commons, Lords and the Queen. The doctrine of parliamentary sovereignty is about the relationship between those who create the Acts (Parliament) and those who must apply them (courts). The argument we find ourselves trying to answer is who in fact has the supreme power? Is it the law makers or those who must apply the law? To present an analogy of the problem we could ask who has supreme power in a game of football or rugby. Is it the governing body who make the rules or is it the referee who must apply the rules in each game using his discretion as each situation occurs. The analogy may seem crude but judges find themselves in the exact position of referees. The question therefore remains, who is supreme?
When Dicey published The Law of the Constitution in 1885 he identified parliamentary sovereignty as meaning that,
'Parliament has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.'
To look at this much quoted statement in more detail we can find a lot of evidence to support his view. It has been shown over the years that courts are totally unwilling to question the legitimacy of statutes unless there is some question as to them not being passed using the correct procedure. As long as an Act has passed through both Houses and received the Royal Assent judges will not argue whether or not a statute should or should not exist but will merely try to apply the statute. One of many examples of this is the case of Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710. In this case a man was appealing to the court against a private Act obtained by the railway company as it adversely affected him. The court however would have nothing to do with it and Lord Campbell pronounced,
'...all that a court of justice can do is to look at the Parliamentary roll: if from that it should appear that a...