The Nature Of Parliamentary Sovereignty And N. W. Barber Case Study - Arts and Humanities Assignment Help

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1. Parliamentary sovereignty

Muchhas beenwrittenabout Parliamentary sovereignty andmuchabout Parliamen tary sovereignty is open to debate. Despite this, before 1991, there was broad agree ment about its content. Parliamentary sovereignty was a legal rule that specified the  legal force ofstatutes. The rule could be expressed in deceptively simple terms: 

Whatever the Queen-in-Parliament enacts as a statute is law.1 

A few inferences can be drawn from this rule. First, no institution within the Con titution has the capacity to declare that a statute is beyond the power of Parliament.  Once the Court—or anyone else operating within the legal order—has concluded that a  document is a statute, it is obliged to treat that document aslegally binding, unlessit has  been repealed bylaterlegislation.2 Second, when there is conflict between an older and a  newer statute, the resolution of this conflict must give legal force to the newer statute— a resolution which may require a court to find that elements of the earlierstatute are im pliedly repealed.3 Each ofthese aspects ofsovereignty—though refined and clarified by  scholars—was found in the case law. Parliamentary sovereignty was a legal rule and,  like otherlegal rules, itsinterpretation was a matter forthe courts. A third inference was  drawn by constitutionalscholars:4 the Court’sinability to rule that a statute was beyond  the power of Parliament, coupled with the rule of implied repeal, entailed that Parliament  could not effectively impose substantive limits on itself. Astatute that purported to deny  Parliament the power to legislate in a specified area would be impliedly repealed (or  could be expressly repealed) by any later statute concerning the same matter.

2. The quiet death of Parliamentary sovereignty 

When Britain was considering joining the European Community in the late 1960s and  early 1970s, many politicians wondered if the limitations of membership were  desirable.25 Constitutional scholars, in contrast, wondered if these limits were pos sible.26 By 1972, it was clear that membership in the Community brought with it the  requirement that domestic courts give European Law priority over conflicting rules  of national law.27 Such a duty ran directly contrary to Parliamentary sovereignty; if  a later statute conflicted with an earlier statute incorporating European Law into  English Law, Parliamentary sovereignty required that the later statute impliedly  repeal the earlier, incorporating statute. Parliament in 1972 did not, as it might have  done, employ cunning constitutional lawyers to evade the problem by using one of the devices discussed in the previous paragraphs. It did not employ the language of the  manner-and-form school or change the judicial oath. Rather, in section 2(4) of the 

European Communities Act 1972, it was asserted that statutes “shall be construed and shall have effect subject to the foregoing provisions of this section”—that is, sub- ject  to the incorporation of European Law into the British legal systems. This was a direct  challenge to Parliamentary sovereignty, an attempt to impose a substantive limit on the effective legislative capacity of subsequent parliaments.

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