does constitutionalism suggest the limitation of power?
...ent for Parliament to uphold a democratic system as they are sovereign, and that the Caspar R Thompson PI; U5784066 TMA 01 Page 2 values of legal certainty and fidelity to establish authority are imperative, so Acts must be unchallengeable. Dicey did recognise that ultimately government was answerable to Parliament and, in turn Parliament answerable to the electorate who in fact held the sovereign power. Parliamentary sovereignty is a legal doctrine found in various constitutional statutes such as the Magna Carta 1215, which established that royal power was limited and. more importantly, The Bill of Rights 1689 which created the principle of Parliamentary sovereignty. Conventions also have a role in Parliamentary sovereignty, although they are not legally enforceable by the courts they are necessary in the workings of the government. Dicey claimed that as they are not enforceable by the courts they are a matter for politics and not law. They do, however, supplement legal rules, described by Sir Ivor Jennings as “the flesh that clothe the dry bones of the law”. Examples of conventions could be the convention of individual or collective ministerial responsibility whereby ministers are answerable to Parliament. Collective responsibility is a convention where it is possible for Parliament to issue a vote of no confidence against the government which, is successful, would mean the government should step down, though not legally required to do so. Now we will see how Parliaments sovereignty can be reaffirmed or compromised through case law. In the Burma Oil Co case the court ruled that the company was entitled to compensation for the oil installations destroyed by the British forces during the Second World War. Subsequently parliament passed the War Damage Act 1965. This Act was retrospective and so repealed the rights of the company to claim compensation. It is rare for Parliament to pass a retrospective Act. This case reaffirmed Parliaments supremacy but also questioned the courts decision, which was an infringement on the separation of powers as well as the rule of law. According to the doctrine Parliament is the main source of law in the form of statute. However, since the incorporation of the Human Rights Act 1998 and the European Communities Act 1972 Parliament is no longer the main source of law in the UK. The ECHR is designed to protect the fundamental rights of citizens and was incorporated into domestic law by way of a normal Caspar R Thompson PI; U5784066 TMA 01 Page 3 Act of Parliament. It does not compromise the sovereignty of Parliament however. It allows the courts to declare whether an Act of Parliament is compatible with the convention but does not allow them to set the Act aside leaving Parliament as the ultimate guardian of fundamental rights. Under S.3 of the Act the courts can make a declaration of incompatibility, but must still apply the incompatible legislation. It is then left to the government to amend the breach if they wish by making a “remedial order”. This can repeal the problematic legislation, with retrospective effect if necessary. The main source that compromises the sovereignty of Parliament is the law deriving from the E.U. European law was incorporated into domestic law by way of the ECA1972. This brought a new form of law before the courts and a conflict did not arise until the landmark case of Factotame [1990]. This was a case where there was a direct conflict between a piece of domestic legislation (Merchant Shipping Act) and a Treaty provision (Freedom of Establishment). The two pieces of legislation were in direct conflict and set the principle that the courts could review legislation for compatibility with EC law, known as judicial review. In this particular case the court granted an interim injunction against the Crown preventing the government from applying the Act before a final decision in the case. This did not nullify or quash the Act but merely meant the court was construing it in the light of S.2(4) ECA 1972, which relates to conflicts between directly effective EC law and UK statutes. This did undermine the traditional idea of the doctrine of Parliamentary sovereignty whereby the courts have no power to question Parliament. As did the principle of State liability where the courts can award damages against the State for its failure to implement EC law. This principle was established in the Francovich case, reaffirmed in later cases such as Brasserie du Pecheur and Factotame (no 5). The result of this is it could be said that the courts are questioning Parliaments legislative capacity. This can be justified by way that Parliament accepted this when creating the ECA1972. So the question remains, is Parliamentary sovereignty compatible with this aspect of limitation of power within the ...