Judicial Law-Making and Parliamentary Sovereignty in the UK Legal Order

2013 ◽  
pp. 1-6
Author(s):  
Daniel Clarry
Keyword(s):  
Legal Order ◽  
Parliamentary Sovereignty ◽  
The Uk ◽  
Law Making

5. Parliamentary sovereignty

2019 ◽  
pp. 99-123
Author(s):  
Anne Dennett
Keyword(s):  
Legislative Process ◽  
Bill Of Rights ◽  
House Of Commons ◽  
Legislative Power ◽  
Legal Limits ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Uk ◽  
A Current ◽  
Law Making

This chapter focuses on parliamentary sovereignty. The term ‘Parliamentary sovereignty’ is normally defined as the ‘legislative supremacy of Parliament’. Since the constitutional settlement brought about by the Bill of Rights 1689, the UK Parliament has had unchallenged authority to create primary law. Parliament's legislative supremacy means, therefore, that there is no competing body with equal or greater law-making power and there are no legal limits on Parliament's legislative competence. Parliament has broad legislative power but cannot make unchangeable statutes, and a current parliament can reverse laws made by a previous parliament. Nobody but Parliament can override Acts of Parliament. The Enrolled Bill rule requires that, if a Bill has passed through the House of Commons and House of Lords and received royal assent, the courts will not enquire into what happened before or during the legislative process.

6. The relationship between EU and national law

2020 ◽  
pp. 154-178
Author(s):  
Sylvia de Mars
Keyword(s):  
National Court ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Eu Membership ◽  
Parliamentary Sovereignty ◽  
Domestic Courts ◽  
The Uk ◽  
The Impact ◽  
The Relationship

This chapter focuses on the relationship between EU law and national law. It first explores the jurisprudence on what is known as the doctrine of supremacy of EU law of the Court of Justice of the European Union (CJEU). When a national court observes that a national law clashes with an EU law, they must set aside that national law. The EU legal order would not work without a doctrine like supremacy: not only would domestic courts not be compelled to apply EU law instead of conflicting national law, but it is likely that different domestic courts would take different decisions as to whether to apply EU law over national law in a given scenario. The chapter then considers how supremacy has been received in Germany and the UK, looking at how the German and UK legal orders interact with EU law. It then addresses whether ‘parliamentary sovereignty’ is compatible with EU membership, and examines the impact of Brexit on the supremacy of EU law.

scholarly journals Democracy as the legitimating condition in the UK Constitution

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 42-58
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
Common Law ◽  
Democratic Legitimacy ◽  
Moral Principles ◽  
Westminster Model ◽  
Normative Conception ◽  
Parliamentary Sovereignty ◽  
The Common ◽  
The Uk ◽  
Law Making ◽  
Do So

The UK Constitution is either theorised as a political constitution that is premised on the Westminster model of government or as a legal constitution that rests on moral principles, which the common law is said to protect. Both models conceive of democracy in procedural terms, and not in normative terms. However, the democratic legitimacy of laws stems from a complex constellation of conditions that no longer involves popular or parliamentary sovereignty alone. In this paper, I break with the traditional account that bases law-making authority on the condition of procedural democracy. Instead, I argue for a normative conception of democracy that conditions parliamentary authority. I show that failure to do so amounts to a glaring omission in certain cases.

6. Parliamentary sovereignty

2021 ◽  
pp. 123-145
Author(s):  
Anne Dennett
Keyword(s):  
Legislative Process ◽  
Bill Of Rights ◽  
House Of Commons ◽  
Legislative Power ◽  
Legal Limits ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Uk ◽  
A Current ◽  
Law Making

This chapter focuses on parliamentary sovereignty. The term ‘parliamentary sovereignty’ is normally defined as the ‘legislative supremacy of Parliament’. Since the constitutional settlement brought about by the Bill of Rights 1689, the UK Parliament has had unchallenged authority to create primary law. Parliament’s legislative supremacy means, therefore, that there is no competing body with equal or greater law-making power and there are no legal limits on Parliament’s legislative competence. Parliament has broad legislative power but cannot make unchangeable statutes, and a current parliament can reverse laws made by a previous parliament. Nobody but Parliament can override Acts of Parliament. The Enrolled Bill rule requires that, if a Bill has passed through the House of Commons and House of Lords and received royal assent, the courts will not enquire into what happened before or during the legislative process.

The Institutionalization of a Process

2016 ◽  
Vol 13 (2) ◽  
pp. 308-340
Author(s):  
Gloria Fernández Arribas
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
International Organization ◽  
Soft Law ◽  
Decision Making Process ◽  
Main Task ◽  
Kimberley Process ◽  
Law Making

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

scholarly journals Sentenza 238/2014: A Good Case for Law-Reform?

2021 ◽  
pp. 71-89
Author(s):  
Heike Krieger
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Law Reform ◽  
Cautious Approach ◽  
National Courts ◽  
State Immunity ◽  
International Legal Order ◽  
Post War ◽  
The Stability ◽  
Law Making

AbstractSentenza 238/2014 is an important judgment which does not only concern the concrete case at hand but also pushes for a change in the law of state immunity. However, such attempts at law-making by national courts may not always attain their goal but may exert adverse effects which are harmful for the international legal order. Sentenza 238/2014 may have an impact on three different yet related issues central to the future development of international law: the relationship between international and national law, exceptions to immunities, and individual reparations in cases of mass atrocities.This chapter criticises law-making through non-compliance with international judicial decisions by national courts. Judges in democratic states under the rule of law who try to push for law-reform, by initiating non-compliance with decisions of international courts, should be aware that they may act in the company, and thereby in support of, courts in regimes with autocratic tendencies, such as the Russian Constitutional Court, which refuses to comply with judgments of the European Court of Human Rights. Furthermore, the chapter argues that immunity from jurisdiction and immunity from execution should be kept distinct and that human rights exceptions should not be applied to immunity from execution. Such a differentiation remains justified because measures of constraint against property used for government non-commercial purposes intrude even further onto sovereign rights than the institution of proceedings before courts in the forum state. It is particularly difficult for states to protect assets and other property situated in a foreign state. These assets may therefore be more susceptible to abusive enforcement measures while simultaneously forming an essential basis for the actual conduct of international relations.The chapter concludes by advocating a cautious approach to individual reparations in cases of mass atrocities. This more cautious approach observes the complexities of ending armed conflicts and negotiating peace deals. An individual right to monetary compensation based on civil claims processes does not allow for taking into account broader political considerations related to establishing a stable post-war order. Such a right is conducive to bilateral settlements between the state parties concerned, which might create new injustices towards other groups of victims. It might also overburden negotiations for a settlement to an ongoing armed conflict.The chapter thereby starts from the assumption that the stability of the international legal order itself as guaranteed by concepts such as immunities or the respect for its judicial organs serves to protect human rights, albeit indirectly.

Sovereignty, Devolution and the English Constitution

2018 ◽  
pp. 45-67
Author(s):  
Akash Paun
Keyword(s):  
Northern Ireland ◽  
Power Sharing ◽  
Theory And Practice ◽  
Constitutional Theory ◽  
Parliamentary Sovereignty ◽  
Form Of Government ◽  
Political Disaffection ◽  
Eu Referendum ◽  
The Uk ◽  
The Right

This chapter argues that the UK territorial constitution rests upon a profound ambiguity about its central principles. Parliamentary sovereignty remains at the core of how the English understand their constitution. Yet in Scotland, Wales and Northern Ireland, alternative doctrines have flourished, especially since devolution, which conceded the right of each nation to determine its own form of government (popular sovereignty) and established a non-majoritarian system of power-sharing and cross-border governance in (Northern) Ireland. These developments imply that the UK is a voluntary ‘family of nations’ not a unitary state. Yet Westminster has never formally conceded this point and devolution could in theory be reversed by a simple parliamentary majority. Constructive ambiguity has been retained. However, the historic tendency to allow constitutional theory and practice to diverge may be unsustainable in the light of the EU referendum result and the wider mood of English political disaffection that Brexit has tapped into.

1. Introduction to constitutional law

2021 ◽  
pp. 1-8
Author(s):  
Colin Faragher
Keyword(s):  
Constitutional Law ◽  
Central Government ◽  
Essential Information ◽  
Legal Rules ◽  
Parliamentary Sovereignty ◽  
Head Of State ◽  
Form Of Government ◽  
The Government ◽  
Definition Of ◽  
The Uk

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the definition of constitutional law and the characteristics of the British Constitution. Constitutional law looks at a body of legal rules and political arrangements concerning the government of a country. A constitution may take the form of a document or set of documents which declare that a country and its chosen form of government legitimately exists. The British Constitution is largely unwritten, flexible in nature, and based on absolute parliamentary sovereignty. The UK is also a unitary state. There is a central government, as well as devolved legislative and executive bodies in Scotland, Wales, Northern Ireland, and England. It is also a constitutional monarchy. This means that the head of state is a king or queen and that they exercise their powers in and through a parliamentary system of government in which the members of the executive are accountable to a sovereign parliament.

1. The nature of international law and the international legal system

2019 ◽  
pp. 1-15
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Legal System ◽  
Vertical Structure ◽  
Legal Order ◽  
Sovereign Equality ◽  
System P ◽  
International Legal System ◽  
International Adjudication ◽  
Peremptory Norms ◽  
Law Making

This chapter briefly discusses the nature of the international legal system. The premise is that the structure of the international legal system is fundamentally different from that of national legal order: contrary to the vertical structure encountered in domestic settings, in international law the structure is horizontal. States enjoy sovereign equality, while both international law-making and international adjudication are based on the consent of the States. There are various theories that have attempted to describe the nature of the international law, including naturalism, positivism, formalism, and realism. Also significant is the existence of a certain hierarchy in the international legal system, in the sense that there are some peremptory norms of international law, such as the prohibition of torture and genocide, to which there is no derogation.

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