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A Critical Analysis of Judicial Review's Impact on Parliamentary Sovereignty
2020, Exeter Law
It will be argued in this short critical analysis that judicial review supports the sovereignty of Parliament to a degree, however it remains a threat where appropriate. This threat is not unjust, as it establishes an element of bi-polar sovereignty between the two powers. This bi-polar sovereignty allows for a calculated application of both parliamentary sovereignty and the rule of law, creating a fair state for the citizens of the United Kingdom. This piece was initially written under exam conditions for the May 2019 first year LLB constitutional and administrative law exam. Minor textual amendments and OSCOLA referencing were carried out retrospectively post-exam. Further editing and publishing was carried out by exeterlaw.org.
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This white paper examines the intricate balance between parliamentary sovereignty and democratic accountability through the lens of judicial review in the UK. It delves into the historical context, the scope of judicial review, and its impact on democratic governance, providing critical insights into how judicial review serves as a check on administrative powers and legislative processes.
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The article aims to discuss some British parliamentary issues that are directly link with the democratic values, power distribution, limitations, overlapping of national laws with the EU laws before Brexit, and restoration of state sovereignty in the post-Brexit UK. Parliamentary Sovereignty is a doctrine where the parliament wields absolute power and can therefore make and unmake laws. Many scholars argue that the doctrine is the central principle in the UK but by weighing its advantages and its disadvantages, one may assume that it can no longer be regarded as the central element of the constitution. The issue of common law radicalism can also be seen as a limitation to parliamentary sovereignty. The paper also discuss some legal issues of translating Parliamentary Acts by courts and judges. Simultaneously an act count valid on certain circumstances but not applicable when it conflicts with other status.
• Parliamentary sovereignty should be understood as an institutionally oriented-doctrine and in this context the 'political limits' on parliamentary sovereignty can be understood. • Challenges to Parliamentary sovereignty stem from the increasingly fragmented nature of authority in constitutional orders today. Such a problem is not unique to the UK. In this context, while Parliament can claim superior democratic legitimacy vis-à-vis constitutional authorities such as the courts, or the Monarch as was historically the case, the same is not necessarily the case in relation to other authorities such as the devolved institutions. • In particular, parliament should be particularly aware of the limits of the democratic legitimacy of parliamentary sovereignty in relation to referendums and the emergence of 'the people' as an alternative source of authority. In this regard, the idea of 'constituent power' can illuminate many of the current challenges facing parliamentary sovereignty today. • Parliamentary sovereignty performs much of the functions that 'constituent power'—the unlimited power to create and establish a constitutional order— performs in other constitutional orders. However, while constituent power is often considered to be vested in 'the people' Parliament's claim to the constituent power in the UK reveals a potential tension between Parliament and 'the People'. Parliament must be aware of, and take account of this tension if its claim to the constituent power is to be maintained and legitimated. • In turn, this concept of constituent power can illuminate discussion of who 'the people' in the UK actually are and whether the UK is a unitary or 'plurinational' polity.
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Is parliamentary sovereignty still a useful concept in the post-Charter era? Once a central principle of Canadian constitutional law, parliamentary sovereignty has come to be viewed by many as being of little more than historical interest. It is perhaps not surprising, then, that the doctrine has received relatively little scholarly attention since the enactment of the Charter. But while it is undoubtedly true that the more absolute versions of parliamentary sovereignty did not survive the Charter’s entrenchment, we should not be too quick to dismiss the principle’s relevance entirely. In this paper I suggest that some variant of parliamentary sovereignty continues to subsist in Canadian constitutional law. I also suggest that the study of parliamentary sovereignty reveals an important connection between the intensity of judicial review and the degree to which Parliament focusses on the constitutional issues raised by a law during the legislative process. Parliament can expand its sphere of autonomous decision-making power relative to courts by showing that it is proactive about securing and promoting constitutional rights.
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