Differences between Parliamentary sovereignty and Constitutional supremacy The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement without parallels in comparative constitutional law. By giving unconditional power to the Westminster Parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the Malaysian Constitution, whose powers are carefully limited by their respective constitutions. Parliamentary sovereignty is thus seen as a unique feature and a result of the unwritten constitution. If parliamentary sovereignty is to be a legal doctrine, it must rely on a list of powers that belong to parliament as an institution. These legal powers are organised in powers and disabilities and are thus both empowering and limiting.
F. F. Ridley argues that Britain does not have a true constitution as it does not meet the four essential characteristics of (i) ‘it establishes, or constitutes, the system of government and thus it is not part of it’; (ii) ‘it involves an authority outside and above the order it establishes’; (iii) ‘it is a form of law superior to other laws’ and (iv) ‘it is entrenched’. In contrast, the Select Committee on the Constitution argue that ‘the British Constitution, contrary to popular description, is not ‘unwritten’ – a good part of it is written – but it is uncodified’. The conflicting arguments of constitutional writers about whether the British constitution can even be labelled a constitution is reflective of how laypeople regard it. The common man is unlikely to know or understand the elements of the British constitution due to its uncodified nature, whereas in the United States of America the constitutional rights are a commonly known fact and people often refer to their amendment rights, largely due to the clear format demonstrating the fundamental laws and rights. As we withdraw from the European Union and large amounts of legislation is being repealed, replaced or introduced, knowing and understanding the key fundamental rules of Britain is crucial for its citizens and codification would solve
However, two of the most important regulations of the Britain constitution are known because it is much based on Parliamentary Supremacy (means that Parliament can, if it chooses, legislate contrary to the fundamental principles of human rights) and the division of powers (meaning that Parliament, as opposed to a written constitution, it is the highest source of law in the United kingdom and that the executive, the legislature and the judiciary powers would be divided among themselves. Additionally, the possibly existence of only a few other countries in the world that does not have a written, along with new change of constitution such as the Human Rights Act of 1998 and the Constitutional Change Act of 2005 have rekindled the debate on whether or not the United Kingdom should write its constitution . This essay will start by introducing some of the proposal that have been shown and forwarded for a codified constitution. It will then argue that even though it is
For example, the Terrorism Act 2006, which changed the maximum duration that someone could be detained for without being charged to 28 days, can be see not take precedence over the rule of law by undermining it. Furthermore due to the UK not having a written constitution, there is no document that can tell us what powers government has or, more importantly, doesn't have, and no UK judgement specifically discredits the idea of parliamentary sovereignty. One must also consider that Parliament has influence over the rue of law. Even though the rule of law means to establish clarity of what is and isn't allowed in the eyes of the law, Parliament can pass new legislation to alter this, and hence influence the rule of law. An example of this is the Criminal Evidence (Witness Anonymity) Act 2008 which nullified the defendants right to know the identity of his witness by replacing it with a regime where witness anonymity orders could be used if circumstances allowed or required them to be
If a codified constitution requires 2/3 majority in both houses for an amendment, devolution would never have been passed by the Parliament, but we can see its benefits. How can we possibly know that what may be best for our current aims will still be best for us after a hundred years? Although people argue that adopting a codified constitution would prevent corruption in the Parliament, the people should be happy to leave policy decisions to their elected representatives and their judgement as they are more informed and educated about politics. They should trust them to govern the country as they wish because it was the people’s decision to elect them in order to do so. Democracy is regarded as the rule of the people, and therefore the executive branch should be able to create the laws and policies that the public have elected them to make in order to satisfy their wishes.
Pwint Yune Phyu (Sherry Huang) Mr. Nick Sturmey World Studies September 20, 2016 Word Count: 750 Constitutional Monarchy Prevails Democracy When concerning the issue of managing a country, it all comes down to whether or not people prefer to make decisions for themselves or to have leader guide and take charge. Democracy, and ideology which depends on numerous individuals, would allow influence and instigates corruption. Constitutional monarchy should be broadly accepted since it ensures the prosperity and development of a country from the utilization of hierarchy, probable growth in economy, and reliance on a leader born and bred with the highest possible education to rule instead of an elected representative chosen directly by the people. The structure of hierarchy within Constitutional Monarchy establishes clear communications, responsibilities, and well-defined goals. There are many types of hierarchies such as management
These intentions disclose the structure of government it aims to articulate and subsequently protect over time. In doing so, it lists only governmental powers that are necessary to maintain its enduring political system, which reflects the state’s identity and indirectly promotes civic virtue. Powers regarding various policy areas are not included as they are instead determined by the people via the legislature. As an extension to this, in order to preserve its fundamental ramifications, the constitution must be drafted in a manner that makes it difficult to amend. By retaining a rigid amendment process, it protects the people from the passions of small factions that threaten to sabotage its original meaning.
Parliamentary Sovereignty is a major principle of the UK constitution. This means that parliament is the supreme legal authority and has the power to both make and break laws. Generally speaking no court, including the highest court in the land- the Supreme Court, has the power to overrule its legislation. Instead, it is the job of the Supreme Court to interpret and develop the law where necessary. This provides proof that the UK courts are subordinate to parliament.
Like mentioned statutory law is made by members of parliament, which means elected officials are making laws on behalf of the citizens that elected them in are more likely than judges to know what laws the public wants and needs. Furthermore, judicial precedent or common law is amended by statutory law. Thus, some argue, statutory law is more powerful than judicial precedent, as the former can take precedence or amend the latter. Therefore, statutory law will prevail if there was a contradiction between the two. Additionally, some may argue that a disadvantage of statutory law is that statutes are not made by judges who know the law best, however, it is relevant to note that statutory law goes through a long scrutiny process and most times the acts of parliament that are passed will not be in disservice to the citizens.
However the Constitution is a primarily based Western doctrine which is problematic when referring to it as the Supreme law of our country. Providing recognition for African Customary Law is evident through various sections of the Constitution. However, this forces an African perspective into a Western legal paradigm. The idea of modernity is subsequently quantified by the apparent need to modernize African law into a Western legal system. This ironic contradiction of the Constitution is supported by.