Thursday, August 16, 2007

Parliamentary Supremacy in the UK

As the United Kingdom does not possess a written constitution unlike other states, it has been Parliament that has always been regarded as bearing supreme authority insofar as statutes and laws are concerned. With no written constitution, there is nothing that subsequent statutes can conform itself with save for the exercise of the authority of Parliament in the crafting of its laws.

Parliamentary Supremacy has three main elements - Parliament can make any law whatsoever and no body or court of law can question an Act of Parliament, no Parliament can bind either itself or its successors, and no limit can be placed on the territorial extent of Acts of Parliament. The first of these elements is more popularly known as the Enrolled Bill doctrine. It simply states that all the judiciary can ever do insofar as statutes of Parliament are concerned is to parse through the Parliamentary Roll and nothing more, as the judiciary must afford fundamental respect and conclusiveness over the acts of Parliament, especially the process by which statutes were passed. The second main element is better known as the implied repeal rule which simply states that subsequent Parliaments can expressly or impliedly repeal previous statutes made by present and past Parliaments as subsequent parliaments possess the same powers and authority of all prior parliaments in existence. More so, the implied repeal rule also shows that past Parliaments cannot restrain future parliaments from exercising their authority of legislation. The last main element is known as the territorial extent doctrine which asserts that parliament can enact statutes that are outside the territorial jurisdiction of the United Kindom, such as the High-jacking Act of 1982, in which hi-jacking is punished even if it be committed outside the territorial jurisdiction and sovereignty of the United Kingdom.

However, the Manner and Form Thesis has come to challenge this traditional view of parliamentary supremacy, as some limitations on this exist, such as when the law require a certain procedure in order that previously enacted statutes may be changed. One good example of this is the requirement of a referendum among the people of Northern Ireland insofar as some of its territories are concerned. The Manner and Form thesis clearly delineates the boundaries in which the courts may intervene and even invalidate acts of the legislature such as those regarding procedure and composition but never on the area of its exercise of power. More so, it has been said that its power to change the law includes the power to change the law affecting itself because the legal sovereign herself may impose legal restrictions upon its acts. However, for as long as the enrolled bill doctrine is in effect and recognized both by Parliament and the courts of law, a big stumbling block exists that precludes the recognition of this view into legal contemplation.

On the other hand, a further challenge to the Supremacy of Parliament has been the legal effects of the European Community Law which is incorporated in to the UK legal system through the European Communities Act 1972, and asserted in case law through Mccarthys v Smith (1979) 3 All ER 325 that views that Treaty above as not only an aid in statutory construction and legal implementation but as having the force of law which must be given priority over and above national laws. Of important note are the Factortame cases which gave the distinction as what kinds of repeals parliament can make insofar as treaties are concerned. It was shown in these cases that parliament cannot simply impliedly repeal acts which tend to conflict with the international treaty signed by the UK but may do so if the repeal is express. In one case, a statute was actually disapplied though not invalidated for its failure to conform to the international treaty.

In all of these, confusion does exist as to which approach must be used insofar as parliamentary supremacy is concerned. The Factortame cases, though, are the most plausible and realistic in application as it clearly categorizes the kinds of statutes which may only be expressly or impliedly repealed, unlike in the traditional view that all statutes may be impliedly repealed even without qualifications. This distinction is very important because it recognizes a hierarchy of law that exists in the UK legal system.

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