The Common Law of England and Wales is one of the major global legal traditions. In order to understand the common law, we need to deal with its history, and the development of its characteristic institutions like the jury, judge made law, parliamentary sovereignty and due process. We also need to ask some critical questions. What role does democracy play in the development of the common law? To what extent are human rights central to the modern common law? How does the common law of England and Wales relate to the law of the European Union? Answering these questions will give us insights into the current challenges the law faces and its possible futures.
The Powers of Parliament
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来自 伦敦大学 的课程
English Common Law: Structure and Principles
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从本节课中
Week Three: Supreme Power: Parliamentary Sovereignty and Law Making
Welcome to week 3 of English Common Law. Learning outcomes this week: 1. Explain the concept of Parliamentary Sovereignty 2. Describe the journey of a Bill
与讲师见面
Professor Adam GeareyProfessor of Law
School of Law, Birkbeck College, University of London
[MUSIC]
What I want to do now is talk in much more detail about parliamentary sovereignty.
What I'm going to do in order to elaborate this argument, is make
reference to one of the major writers
on the British Constitution, Albert Venn Dicey.
Dicey, from here on in.
Now Dicey in his major work on the, the British Constitution, said or
discribed parliamentary sovereignity through three rules, which
I'm going to outline to you now.
So, firstly, parliament is the supreme lawmaking body
and may enact laws on any subject matter.
Secondly, no parliament may be bound by a predecessor or bind a successor.
Thirdly, no person or body, including a court
of law, may question the validity of parliament's enactments.
Okay.
Let's just think about these rules as a block of three
and then I want to say a little bit more about them.
The three rules, Dicey's three rules
of parliamentary sovereignty clearly follow from the
idea that parliament is the supreme law making body in the British constitution.
That everything Dicey's says really follows from that fundamental fact.
So let's just try and work through what this might mean.
One of the problems, and I'm sure this may even
be a problem to a listener of this lecture or somebody thinking about these things.
Parliament sounds tyrannical.
It can change any law that it likes and there's nobody that can stop it.
Now that's the real problem here.
Now, I'm going to give a number of answers to this question.
So, Leslie Phillips, another commentator on the constitution, I think gave us
a particularly pointed way of thinking
this problem through, thinking this question through.
He said, could Parliament pass a law condemning all blue eyed babies to death?
Clearly a very emotive, striking way of putting it.
And the answer that Phillips comes up with,
and this comes back to Dicey, and I think
it's probably still generally true of the contemporary
doctrine of parliament sovereignty is both yes and no.
It might shock you in some ways, but let me try and elaborate what I mean here.
Now, clearly if we are saying that parliament
is sovereign and parliament can change any law
that it likes and that there is nobody
that can overrule parliament, then it would certainly
follow from that that parliament can make a
law murdering blue-eyed babies or depriving a particular
section of the population of that property, any
of these things which would strike us as horrific.
Will parliament do this?
Now, this is a different question, isn't it?
The answer is, hopefully, no, or at least
that's what some people would say the answer is.
Parliament wouldn't do this because of the realities of politics.
Can one imagine, for instance, a government
that suddenly passes a law which it
can do, saying that if you are blue eyed you will be sentenced to death.
Well, it seems fairly unimaginable, doesn't it?
Why is that?
Well, it could be because for the most part, at least it's possible to argue
that the last civil war in the United Kingdom was in the 1600.
In other words, we have a country characterized by an
extended period of peace, where certain political bodies have not [UNKNOWN].
Again, one has to be careful with these things.
Have not committed acts of genocide or acts of civil war.
So this may reflect, really, just an understanding of
the political settlement in the United Kingdom and the relative
political social peace that has characterized the last few centuries
in the United Kingdom, at least in mainland United Kingdom.
So the issue that we have to work through here,
is the distinction if you like, between legal and political sovereignty.
What do I mean by this?
Well if we're thinking technically and can parliament
make or change any law that it likes.
Well what we are referring to there is legal sovereignty.
Parliament legally has the power because it is the sovereign body.
However, we need to make a
distinction between legal sovereignty and political sovereignty.
We could say, as far as the political
sovereignty of parliament is concerned, it is limited.
It is limited by the democratic
accountability of parliament to the people.
Parliament is not then politically absolute.
Parliament as I've stress, is, owes its, the
government that has power in Parliament owes the
fact that it is in Parliament to the fact that it's been voted in to Parliament.
In other words, it's politically limited throughout the period of
a government, the time that that government is in power.
It can do what it likes, but it is ultimately
accountable to the people when there is a general election.
In other words, Dicey and any sensible commentator on the
constitution has to make a distinction between political and legal sovereignty.
Legally, parliament can make or unmake any law that it likes.
Politically, Parliament is limited.
It's limited by its accountability to the people.
And also perhaps to the general rules, practices, conventions,
and understandings that have themselves grown up in British politics.
And also I suppose by the politically possible.
For instance, one could imagine that
the present coalition, government would, could, in
principle, make a law about abolishing cars,
abolishing private ownership of cars, let's say.
Would it do that?
Well, it'd be politically suicidal, to do that.
It would be the end of that government, certainly,
in the medium term, if not in the short term.
So once again, this seems to draw our
attention to this distinction between legal and political sovereignty.
Could a parliament legally pass an act, pass an act of
parliament, create a statute that
abolishes private ownership of motor vehicles?
Well yes it could.
Politically would it do that?
Well, probably not.
And that seems to me to give us a
fairly good understanding of the dynamic of parliamentary sovereignty.
Let me just pick up a number of other points about
parliamentary sovereignty in relation to Dicey's at three themes, three rules.
Dicey says that no parliament may be bound by a predecessor or bind a successor.
This would mean for instance that no parliament
can create an act that is binding on a
future parliament and no parliament is compelled to
follow an act laid down by an earlier parliament.
So in terms of the strict legal theory here, we
could say that this is the continuing theory of parliamentary sovereignty.
It's a rather technical term, it's explained by Ian Loveland in terms of the
idea that, if you like in terms of the, the theory of it, the continuing
theory maintains that the sovereign parliament is
a perpetual institution, its unconfined legislative power
is created in you every time it
meets, irrespective of what previous parliaments have enacted.
Starts the idea of the continuing power of parliament.
Now, it causes us to reflect in some ways, some referendums and things like that.
In other words, as a parliament, as a referendum
passed by one parliament binding on a subsequent Parliament.
Legally, probably not.
Politically, that takes us back to that whole old story, doesn't it?
Would a Parliament be bound by referendum passed by an earlier Parliament?
Well, legally that later Parliament can change its mind.
It's not bound by that referendum.
Whether or not politically, the governing would want
to do that, is of course another question.
Third point, third point, third, Dicey's third
rule that relates to parliamentary sovereignty and that
is the idea that nobody, no court
effectively may question the validity of parliament's enactments.
In other words, no British court has the power to strike down an act of Parliament.
Obviously if one looks at other supreme courts in
other jurisdictions, one might come across this power, in
other words, the power to declare that an act
is null or void by reference to the constitution.
That is not the case in the United Kingdom.
Although we have a supreme court, it is not in
a sense supreme because as I've said parliament is supreme.
So courts cannot question, cannot strike down declare void acts of parliament.
That would be, if you like, a constitutional revolution.
I'll come back to this point, because it takes
us to one of the, the main themes that
certain are appearing in contemporary law and contemporary politics
about the relationship between judges, human rights, and Parliament.
Certainly a theme that needs to be thought about in the wake of the
human rights side, but this is a theme that we will come back to presently
