Public Law Essay

ADVICE TO ANGUS AS TO THE CORRECTNESS OF HIS ASSERTIONS OF LAW

This question deals with Parliamentary sovereignty, the Act of Union between England and Scotland and the impact of Directives of the European Union on both countries. The United Kingdom is made up of England, Wales, Scotland and Northern Ireland. The English legal system extends only to England and Wales, with Scotland and Northern Ireland independently having their own distinct legal system (Bennett, 2011). The affairs between Scotland and Britain are based on an Act of Union (1706/7). This act joined the Kingdom of England and the Kingdom of Scotland (previously with separate legislatures but one monarch) into a single United Kingdom, also known as Great Britain (Weller, 2012).
According to A.V. Dicey, there are three basic principles of Parliamentary supremacy. First and foremost, parliament is supreme; meaning that the parliament of the United Kingdom have absolute and unrestrained power. In short, statutes are accepted by the courts as the highest form of law, subject to judicial interpretation. This is seen in Mortensen v Peters, where the captain of a Norwegian fishing boat was convicted of an offence under the Herring Fisheries (Scotland) Act 1889 even though the Act regulated fishing outside the limit of Scottish waters recognised in international law. To this Lord Dunedin quotes: ‘For us an Act of Parliament duly passed by Lords and Commons and assented to by the King is supreme, and we are bound to give effect to its terms’.

The second principle is that parliament is the supreme law-making body, thus can make and unmake any law whatsoever. This is demonstrated in the case of Edinburgh & Dalkeith Railway v Wauchope where Mr Wauchope claimed that the private Act obtained by the Railway Company should not be applied as it had been passed without his having notice of the passing of the Act as required by Standing Orders. Lord Campbell quoted that: All that a court…can do is to look at the Parliamentary Roll: [if from that it should appear that] a Bill has passed both Houses and received Royal Assent; no court…can inquire into the mode in which it was introduced…or what passed…during its progress in its various stages through Parliament’.

The final principle is that parliament cannot bind or be bound. In other words, no parliament can bind future parliaments. As stated by AV Dicey, A sovereign power cannot while retaining its sovereign character, restrict its own powers by any particular enactment. This is illustrated in Ellen Street Estates v Minister of Health, concerning the amount of compensation to be paid on the compulsory purchase of land. The courts ruled that the legislature cannot, according to our constitution, bind itself as to form of subsequent legislation and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal.
For a long time, the doctrine of Parliamentary sovereignty was unchallenged until over the years, laws passed by Parliament have limited its administration. One of such change is the UK’s membership to the European Economic Community in 1972 which later became the European Union. This constituted as the utmost challenge to the doctrine of parliamentary sovereignty (Tomkins, 2003) as EU law takes priority over UK laws and binding upon UK courts. This is established in R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2). The UK government enacted the Merchant Shipping Act 1988 which conflicted with the EU Treaty preventing discrimination on the grounds of nationality. Spanish fishermen claimed this act affected UK fisheries policy and was contrary to EC Law. The European Court of Justice (ECJ) held that the UK must set aside the Merchant Shipping Act and adhere to EU supremacy.
Another principle that has undermined Parliamentary sovereignty

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