English Legal System - Introduction to the English Legal System (Part 2)

Supremacy of Parliament

The supremacy of Parliament is the second fundamental principle of the British constitution, also called the parliamentary sovereignty. This states that the Parliament is the highest source of English law.

Dicey used ‘sovereignty’ to describe the concept of the ‘power of law-making unrestricted by any legal limit’ and described the principle as meaning:

[N]either more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever, and further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.

Therefore the law must be applied by the courts as long as it has been passed in accordance with the parliamentary procedure rules. Parliamentary supremacy is an unusual approach in democratic countries. The reasoning behind the supremacy of the Parliament is that it is democratically elected.

The Effect of Membership of the European Union on Parliamentary Sovereignty

• The Human Rights Act 1998 (came into force in October 2000) incorporates the European Convention on Human Rights into the domestic law but does not give the convention superiority over English law

• The membership of Britain in the European Union affects the Parliamentary supremacy by giving EU law precedence in the specific subject it can make law

• In the subject areas are not covered by the European Union, the Parliament remains supreme

Rule of Law

The third basic principle of the British constitution is the Rule of Law. This principle is developed from the writings of 19th century writer Dicey who stated that there are three (3) elements to this principle;

1. Nobody should be punished by the state if they had not broken the law

2. One law should govern everyone – citizens and state officials

3. Rights of individuals should not be secured in a written constitution but by the decisions of judges in ordinary law

Today the importance of the concept of rule of law is combination of these three (3) elements forming the principle that the state may use its powers only according to agreed rules.

Constitutional Reform in the UK

The UK constitution evolved through the centuries into the form that is currently studied today, however Professor King has stated:

Although few people seem to have noticed the fact, the truth is that the United Kingdom’s constitution changed more between 1970 and 2000, and especially between 1997 and 2000, than during any comparable period since at least the middle of 18th Century.

Professor King identified 12 areas of change that occurred during this period. Professor Bogdanor has expanded this list to 15. Significant changes include the UKs membership of the EU, devolution and the establishment of a Supreme Court and changes in the role of Lord Chancellor. The impact of these events is still to be seen in full, and more changes are still likely to happen.
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