Constitutional Supremacy Vs Parliamentary Sovereignty example essay topic

Assignment- Consider the concepts of Parliamentary Sovereignty contrasting it with Constitutional Supremacy and discuss the implications of living in both systems. In the United Kingdom their legal system is one of Parliamentary supremacy. This means that Parliament cannot bind itself or its successors, their power cannot be limited. In most countries there is a document or a set of documents called the Constitution in these countries there exist Constitutional supremacy. This is where a document sets out certain laws which cannot be changed; these laws protect the fundamental rights and freedom of the citizens. In Britain there is no such thing as a written Constitution, there is a sense of a Constitution however but that can be overruled by legislation.

Parliament is not allowed to make any laws which will curb its freedom. The politicians make and break their own rules in a system of Parliamentary supremacy. 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 recognized by the law of England as having a right to override or set aside the legislation of Parliament. ' Hence it is possible for Parliament to pass a law that all new born boys must be killed and it must be done. It is also possible to make a Constitution which would govern the people's rights but it would be a false reassurance because the next day legislation could be passed to retract the Constitution passed the day before. Parliamentary sovereignty has a few advantages; they can easily make amendments and make laws without needing to seek a special majority, they can pass laws without submitting them for public viewing and they can restrict citizens from doing things they consider wrong, inappropriate and harmful even if it infringes on their basic human rights.

These advantages however can also be seen has disadvantages. Some could see it has unfair that the public has no opportunity to see the proposition of a law which might govern them in the future while other may believe that leaving every to the people they voted for is the right thing to do. "Parliament, unlike the judiciary, is democratically elected and therefore ought to have the upper hand when making the laws that every citizen has to live by". Also many would view it as unjust for a government to have the means to infringe on basic human rights. It can also be argued that an unwritten Constitution develops along with the changing needs of society. Another disadvantage is that 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 never 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. vs. 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 stated that, '... all that a court of justice can do is to look at the Parliamentary roll: if from that it should appear that a bill has passed both houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, what was done to it previously being introduced, or what passed in Parliament during the various stages of its progress through both houses of Parliament. ' From this it is quite clear that courts will obey statutes as long as they are passed correctly but that ordinary courts have no jurisdiction, nor are they willing, to enquire into issues concerning the internal affairs of Parliament. This is known as the 'enrolled Act' rule.

It was also shown in the case of Ex Parte Canon Selwyn (1872) J.P. 54. It was again emphasized over a hundred years later in the case of Pickin vs. British Railways Board [1974] AC 763. This again concerned the plaintiff arguing over the validity of a private Railways Act. Lord Reid reiterated the words of Lord Campbell in Edinburgh & Dalkeith and stated in his judgment that, 'For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, and I would only support it if compelled by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation.

' Once again this shows the courts unwillingness to question the validity of an Act. Lord Morris also said in this case, 'It is the function of the courts to administer the laws which Parliament has enacted. In the process of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the statute book at all.

' On the other hand Constitutional supremacy provides guidelines for the government to rule by. The Constitution provides protection of basic rights and liberties, such as freedom of speech. It is a selection of the most important rules about the government of the country. In "Constitutional and Administrative Law" de Smith states that all Constitutions will have these to things in common; they will have fundamental law which designates the principle organs of government and invests those organs with their authorities. They will also be hierarchal to other laws. Having a written Constitution which is supreme has its benefits; it is made to protect the citizens of the country, it prevents against dictatorship, it give the citizens a say in how they are to be governed, it also gives the opposition a chance to argue against the leading party and any law that differs from the Constitution is considered void.

It also has its disadvantages; it is not easy to amend the Constitution because of the many special procedures provided before the law can be changed, such as the fact that the leading party can pose the referendum to the public in a way where they might not be sure what they are deciding on and hence they may decide in the government's favor and few things which should be changed, such as an alien marrying a female citizen should be able to apply for citizenship as well, have not been changed. Parliamentary supremacy and Constitutional supremacy are almost extreme opposites of each other. The Constitution spells out exactly how the government is to operate while the British has complex rules defining the role of government. They too have a regular and functioning system of government which ca easily be changed. The Constitution also sets out the fundamental rights of the individual while the British again have another set of complex rules. The Constitution also has entrenched provisions for amendments to the Constitution while in the British system Parliament change any laws as easily as they can pass one.

If one lives in a constitutionally sovereign country one can consider oneself protect form dictatorship and having your basic human rights protected such as the right to life, liberty and freedom. One can also expect that for anything set out in the Constitution to be changed that the party trying to make the amendment must go through certain provision which could make it extremely hard for them to succeed before the amendment can be made. One can also expect no sudden change in your country's legal system nor will one have to fear loss of property without compensation. One can also expect to have the freedom of speech and to have a newspaper which is free to tell the truth as they see fit because they cannot be suppressed by the government. A person living in a country with Constitutional supremacy will have the chance the live a life free from unjust harassment from police, a fair trial and justice where justice is due. A Constitution is made to protect, in a state governed by one you can expect, with good reason, to be protected.

In a Parliamentary sovereign country one can expect a government which is flexible enough to develop and changing along with an ever growing and ever changing society. One should also be aware however of the implication that people have full power of the state you live in and are free to change and make laws as they see fit which can lead to dictatorship and the oppression of an entire state. In the British system one can take pride in the fact that in is a country which prides itself on tradition and hence the possibility of it turning into a country dictated by a tyrannical leader is a remote one. However there is always the possibility of dictatorship and the possible infringement upon the basic human rights and the reluctance of the courts to question Parliament. Both Parliament supremacy and Constitutional supremacy have their advantages and disadvantages and both of them have important implications to citizens if one lives within such a system but they are both considered to be with few faults and operating for the good of the people of their respective countries.

So therefore one can conclude that one has compared and contrasted two extremely diverse systems of supremacy and they are both reliable once controlled by responsible leaders with generally honest and beneficial intentions.

Bibliography

o ALDER - Constitutional and Administrative Law o DICEY - The Law of the Constitution o DE SMITH- Constitutional and Administrative Law o IVAN WALTERS- Aspects of Legal Systems o The English Legal System o The Constitution.