As Great Britain prepares to leave the EU, it\u2019s been indicated that Parliamentary Sovereignty will be restored as the UK will not be bound by EU laws anymore. While Parliament will regain authority, the Orthodox standard of Parliamentary Sovereignty<\/a> will not be restored. In this paper, I will discuss the continuous growth in the common law as well as the rise in powers of the judiciary in the United Kingdom.<\/p>\n In 1610, Chief justice Coke in Dr. Then in 1688 the \u201cglorious revolution\u201d took place and the way things had been done changed. The idea of natural law doctrines were disregarded; becoming unrecognized and Parliamentary supremacy was established.[3]<\/sup><\/strong><\/sup><\/strong><\/a> By 1689, the Bill of Rights was established which created a new political contract between the Monarchy and Parliament. Parliament became the \u2018highest form of law\u2019 known to the English Constitution[4]<\/sup><\/a> as the courts bowed to the sovereignty of Parliamen<\/a>t and this bill limited the power of the Monarchy.<\/p>\n The idea of natural law doctrines was replaced by absolute sovereignty of Parliament and in 1885, Albert Dicey then came up with three traits which are known as Orthodox Parliamentary Sovereignty. The first is that there is no law which Parliament cannot change. The second is that there is no distinction between laws which are constitutional or ordinary. The third is that there is no person or body that can pronounce an Act of Parliament as void.[5]<\/sup><\/a> <\/p>\n The UK is set apart from other The courts, specifically judges are However, things weren\u2019t always the Orthodox Parliamentary Sovereignty was notably different to that of European Law which made joining the EU controversial. Major changes would be brought forth if the UK became members of the EU. Some of these major changes included that Community law would prevail over Parliamentary law as well as over UK law.[13]<\/sup><\/a> EU law would not allow UK legislation to be passed that was not compatible with EU law[14]<\/sup><\/a> and by overruling domestic rule of law, immunity was provided to some constitutional institutions like Parliament[15]<\/sup><\/a> under EU law. European Law went directly against the idea Orthodox Parliamentary Sovereignty as it limited Parliament\u2019s power. Being aware of this, the UK still joined. <\/p>\n According to Lord Bridge of Harwich, When the UK entered the European Union, the By leaving the European Union<\/a>, the UK will remove a strong external source that limited Parliament\u2019s supremacy when they joined the EU in 1972. However, it will also create legal limitations on itself at the same time by doing it though they will be able to change law by gaining ultimate power on the other hand. As it is currently, According to Tomkins, \u201cif an act is passed that takes away power of future Parliament then the future Parliament will not be legislatively supreme\u201d.[21]<\/sup><\/a> And as stated in the Ellen Street Estates Ltd case by Maugham Lj, \u201clegislature cannot…bind itself as to the form of subsequent legislation\u201d.[22]<\/sup><\/a> <\/p>\n As a result of leaving the EU, a Throughout the years surrounding the That being said, notable changes Allen, Sovereignty of Law: Freedom, Constitution, and Common Costa v ENEL (6\/64) [1964] ECR 585<\/p>\n Dicey A, An Introduction to the Study of the Law of the Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB Entick v Carrington [1975] 19 St Tr 1029<\/p>\n Goldsworthy J, The Sovereignty of Parliament (1998)<\/p>\n Grace J, Key facts key cases: Constitutional & Home Office, Rights Brought Home: The Human Rights Bill Loveland I, Constitutional Law, Administrative Law, and M. Elliott and S. Tierney, \u2018The \u2018Great Repeal Bill\u2019 and Merchant Shipping Act 1988, c. 12.<\/p>\n Oliver D and Drewry G, The Law and Parliament (1998)<\/p>\n O\u2019Cinneide C, \u2018Human Rights and The UK Constitution\u2019 in Pickin v British Railways Board [1974] AC 765, 786-88<\/p>\n Thomas Bonham v College of Physicians [1610] 8 Co Rep 114a Tomkins A, Public Law (oxford: Oxford University Press, R (Factortame Ltd) v Secretary of State for Transport [1990] R (Jackson and ors) v Attorney General [2005] UKHL 56<\/p>\n R (Miller) v Secretary of State for Exiting the European Van Gend en Loos v Nederlandse Administratie der Belastingen [1]<\/sup><\/a> Thomas Bonham v College of [2]<\/sup><\/a> Loveland I, Constitutional Law, [3]<\/sup><\/a> Goldsworthy J, The Sovereignty of [4]<\/sup><\/a> Loveland I, Constitutional Law, [5]<\/sup><\/a> Dicey A, An Introduction to the [6]<\/sup><\/a> Ibid<\/p>\n [7]<\/sup><\/a> Entick v Carrington [1975] 19 St Tr [8]<\/sup><\/a> O\u2019Cinneide C, \u2018Human Rights and The [9]<\/sup><\/a> Home Office, Rights Brought Home: [10]<\/sup><\/a> R (Jackson and ors) v Attorney [11]<\/sup><\/a> Pickin v British Railways Board [12]<\/sup><\/a> Loveland I, Constitutional Law, [13]<\/sup><\/a> Oliver D and Drewry G, The Law and [14]<\/sup><\/a> Grace J, Key facts key cases: [15]<\/sup><\/a> Oliver D and Drewry G, The Law and [16]<\/sup><\/a> R (Factortame Ltd) v Secretary of [17]<\/sup><\/a> Allen, Sovereignty of Law: Freedom, [18]<\/sup><\/a> Merchant Shipping Act 1988, c. 12.<\/p>\n [19]<\/sup><\/a> Van Gend en Loos v Nederlandse [20]<\/sup><\/a> Costa v ENEL (6\/64) [1964] ECR 585<\/p>\n [21]<\/sup><\/a> Tomkins A, Public Law (oxford: [22]<\/sup><\/a> Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB [23]<\/sup><\/a> R (Miller) v Secretary of State for [24]<\/sup><\/a> M. Elliott and S. Tierney, \u2018The In this paper, I will discuss the continuous growth in the common law as well as the rise in powers of the judiciary in the United Kingdom.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[43],"tags":[85],"class_list":["post-481","post","type-post","status-publish","format-standard","hentry","category-free-law-essaysconstitutional-law","tag-uk-law"],"yoast_head":"\nDicey and a history of Orthodox Parliamentary Sovereignty:<\/h2>\n
\nBonham\u2019s case said that, \u201cit appears in our books, that in many cases, the
\ncommon law will control Acts of Parliament, and sometime adjudge them to be
\nutterly void: for when an Act of Parliament is against common right or reasons,
\nor repugnant, or impossible to be performed, the common law will control it,
\nand adjudge such Act to be void.\u201d[1]<\/sup><\/strong><\/sup><\/strong><\/a>Then in Day v Savadge, Chief Justice
\nHobert stated only five years later that, \u201ceven an Act of Parliament, made
\nagainst natural equity, as to make a man judge in his own case, is void in
\nitself, for jura naturae sunt immutabilia, and they are leges legum\u201d.[2]<\/sup><\/a>
\nThis supported the argument that indeed people strongly did believe that the
\ngovernment’s control was limited by a sort of \u2018divine\u201d or \u201cnatural\u201d law which
\nwas based on moral principles which were to be upheld by the courts; out of
\nreach of Parliament. <\/p>\nParliamentary Sovereignty and the Constitution:<\/h2>\n
\ncountries in that it has made Parliament the supreme legal authority; this is
\nknown as Parliamentary Sovereignty. Parliament, according to Albert Dicey, \u2018has
\nunder the English constitution the right to make or unmake any law whatever;
\nand further, that no person or body is recognised by the law of England as
\nhaving the right to override or set aside the legislation of Parliament\u2019.[6]<\/sup><\/a>While the majority of other countries
\naround the world have a single legal document that outlines how the state
\nshould function and sets out the fundamental laws of their country, the UK does
\nnot. There is no codified or written constitution; only Parliamentary
\nSovereignty which has been put in place as a founding principle of the UK
\nconstitution. As a result of the absence of a written constitution and codified
\nlaws, the functioning of Parliament and the UK constitution have gone through a
\ngreat deal of change throughout history which was majorly noticed when the UK
\njoined the European Union.<\/p>\nThe Courts and the Orthodoxy Constitutional Theory:<\/h2>\n
\ngiven the heavy responsibility to protect the rights of UK citizens, to make
\nsure values in statutes are respected and to interpret UK law. It is also their
\nresponsibility to challenge statutes that don\u2019t align with the rule of law
\nwhich is a principle that demands human rights are protected. This specifically
\nis noted in Entick v Carrington[7]<\/sup><\/a>
\nwhen common law courts set a precedent
\nof legality, making it clear that government officials weren\u2019t allowed to use
\npublic authority unless it had legal basis for it based from a certain rule of
\nlaw. The European Convention on Human Rights is what gives protection to these
\nhuman rights in the UK currently. It must be noted that there isn\u2019t a
\nrequirement to have direct effect under it unlike EU law though which means the
\nOrthodox Parliamentary Sovereignty is not affected[8]<\/sup><\/a> in
\nthis area. Adding to the ECHR, the Human Rights Act 1998 incorporated new ways
\nfor rights to be enforced into the UK\u2019s domestic courts[9]<\/sup><\/a>which has impacted the UK positively.
\nThe UK courts have play a significant role in enforcing the rule of law and
\nvalues of their constitution as noted by Lord Hope in R (Jackson and ors) v
\nAttorney General when he statedthat
\n\u201cthe rule of law enforced by the courts is the ultimate controlling factor on
\nwhich our constitution is based\u201d.[10]<\/sup><\/a><\/p>\n
\nway they are now and the courts didn\u2019t always have such authority despite the
\nrule of law being upheld as a major part of the UK\u2019s constitution. In Pickin v
\nBritish Railways Board, the House of Lords made clear that the court should not
\nconcern itself with how Parliament carries out its functions as the court\u2019s
\nrole is to apply the enactments of Parliament.[11]<\/sup><\/a>The enrolled Bill rule was echoed in
\nthis case as it states no court may inquire such things. In the Orthodox
\nconstitutional theory, the courts\u2019 allegiance is not to the people, nor to a
\nsupra-legislative constitution, but simply to the will of Parliament as
\nexpressed in the words of a statute.[12]<\/sup><\/a>
\nHowever, this way of doing things slowly began to change and the UK slowly grew
\naway from the Orthodoxy constitutional theory. The judiciary\u2019s role began to
\nchange as they began to question Parliament\u2019s power; reducing Parliament\u2019s
\nsupremacy and questioning the validity of statutes. They gained an important
\nrole of protecting human rights in the United Kingdom as international law was
\nadhered to and as a result of the UK\u2019s choices, common law constitutionalism
\nchanged as well the perception of Parliamentary Sovereignty into what it is
\ntoday.<\/p>\nJoining the EU and New Limitations to Parliamentary Sovereignty: <\/h2>\n
\nwhatever limitation of its sovereignty, Parliament accepted when it enacted the
\nEuropean Communities Act 1972 and it did this voluntarily.[16]<\/sup><\/a> \u201cHe
\nwas explaining the political circumstances in which the courts were now obliged
\nto make sense of Parliament\u2019s various enactments\u201d[17]<\/sup><\/a>
\nwith this comment. <\/strong>European law was
\nthen accepted by the UK courts as superior as observed in the case of
\nFactortame in which the House of Lords issued an interlocutory injunction
\ndisplaying primary legislation[18]<\/sup><\/a>
\nand EU law was adhered to. As a result, limitations to Orthodox Parliamentary
\nSovereignty was put forth by joining the European Union and UK law changed.<\/p>\n
\npower of Parliament became limited by the doctrine of direct effect. This was
\nestablished by the European Court of Justice who made clear before members
\njoined that if Member States have a conflict, EU law prevails and national law
\nmust be put aside. This was seen in the case of Van Gend en Loos when Dutch
\ncustoms authorities required an import tax be paid but Van Gend could rely on
\nEU law to refuse to pay such a tax. It was stated that, \u201cThe European Court of
\nJustice specifies that the Community constitutes a new legal order of
\ninternational law for the benefit of which the States have limited their
\nsovereign rights and the subjects of which comprise not only Member States but
\nalso their nationals. The Court concludes from this a fundamental principle:
\nthat of the direct effect of Community law\u201d[19]<\/sup><\/a>.This was also seen in the Costa v ENEL
\ncase where judgment stated that \u201cthe EEC Treaty has created its own legal
\nsystem which, on the entry into force of the Treaty, became an integral part of
\nthe legal systems of the Member States, and which their courts are bound to
\napply.\u201d[20]<\/sup><\/strong><\/sup><\/strong><\/a><\/p>\nParliamentary Sovereignty and Withdrawal From the European Union:<\/h2>\n
\ngreat deal of change will take place to the structure of Parliament which is
\nthought to be \u2018continuing\u2019 in regards to sovereignty currently and unable to
\nbind its successors. By controlling the withdrawal process it can put forth its
\nown legislation as change takes place. After Brexit, Parliament may have the
\npower to bind its successors becoming self-embracing which is opposite of what
\nit is currently under EU law today.<\/p>\n
\nUK\u2019s exit from the EU, a heavy felt transition will take place. Many are unsure
\nif EU law will continue to influence UK law after withdrawal but according to R (Miller) v
\nSecretary of State for Exiting the European Union, for a transitional period of
\ntime this will be the case.[23]<\/sup><\/a> On Brexit Day, the
\nGreat Repeal Bill, also coined the European Union Withdrawal Bill
\ncontroversially will come into play. This Bill will repeal the ECA of 1972 but
\nwill also preserve much of EU law that is at force in the UK by converting
\ndirectly effective EU law into UK law and preserving secondary legislation enacted
\nunder ECA.[24]<\/sup><\/a>
\nIt will help to make this transition as smooth as possible.<\/p>\n
\nwill include that EU Law will no longer prevail over UK law, UK legislation
\nwill be able to be passed that is inconsistent with the ECC and finally,
\nauthoritative rule of Parliament will be restored as sovereign as discussed
\nabove. However, the Orthodox standard of Parliamentary Sovereignty won\u2019t be
\nfully restored as the nature of Parliamentary Sovereignty has changed a great
\ndeal since Dicey and can\u2019t be argued to be to an Orthodox standard in the
\nUnited Kingdom anymore. <\/p>\nBibliography:<\/h2>\n
\nLaw (Oxford 2013). p.149-150<\/p>\n
\nConstitution (8th edn 1915). P. 37-39<\/p>\n
\n590<\/p>\n
\nAdministrative Law (Routledge 2016)<\/p>\n
\n[1997)<\/p>\n
\nHuman Rights: A Critical Introduction (7TH edn 2014) p. 22, 27, 76<\/p>\n
\nDelegated Powers\u2019, U.K. Const. L. Blog (7th Mar 2017) (available at https:\/\/ukconstitutionallaw.org\/<\/a>))<\/p>\n
\nJeffrey Jowell and Dawn Oliver, The Changing Constitution (8th edn, OUP 2015)<\/p>\n
\nat 118a<\/p>\n
\n2003) p. 105<\/p>\n
\n2 AC 85 and [1991] 1 AC 603<\/p>\n
\nUnion [2016] EWHC 2768 (Admin)<\/p>\n
\n[1963] ECR 1 at 12<\/p>\n
\n
\nPhysicians [1610] 8 Co Rep 114a at 118a<\/p>\n
\nAdministrative Law, and Human Rights: A Critical Introduction (7TH edn 2014) p.
\n22<\/p>\n
\nParliament (1998)<\/p>\n
\nAdministrative Law, and Human Rights: A Critical Introduction (7TH edn 2014) p.
\n27<\/p>\n
\nStudy of the Law of the Constitution (8th edn 1915). P. 37-39<\/p>\n
\n1029<\/p>\n
\nUK Constitution\u2019 in Jeffrey Jowell and Dawn Oliver, The Changing Constitution
\n(8th edn, OUP 2015)<\/p>\n
\nThe Human Rights Bill [1997)<\/p>\n
\nGeneral [2005] UKHL 56<\/p>\n
\n[1974] AC 765, 786-88<\/p>\n
\nAdministrative Law, and Human Rights: A Critical Introduction (7TH edn 2014) p.
\n76<\/p>\n
\nParliament (1998)<\/p>\n
\nConstitutional & Administrative Law (Routledge 2016)<\/p>\n
\nParliament (1998)<\/p>\n
\nState for Transport [1990] 2 AC 85 and [1991] 1 AC 603<\/p>\n
\nConstitution, and Common Law (Oxford 2013). p.149-150<\/p>\n
\nAdministratie der Belastingen [1963] ECR 1 at 12<\/p>\n
\nOxford University Press, 2003) p. 105<\/p>\n
\n585<\/p>\n
\nExiting the European Union [2016] EWHC 2768 (Admin)<\/p>\n
\n\u2018Great Repeal Bill\u2019 and Delegated Powers\u2019, U.K. Const. L. Blog (7th Mar 2017)
\n(available at https:\/\/ukconstitutionallaw.org\/<\/a>))<\/p>\n","protected":false},"excerpt":{"rendered":"