1.3 The rule of law and parliamentary sovereignty
5 min read•august 16, 2024
The and are key pillars of the UK's constitutional system. These principles shape how laws are made, interpreted, and applied, ensuring government accountability and protecting individual rights.
Tensions can arise between these concepts, as Parliament's supreme law-making power may conflict with rule of law principles. Balancing these forces involves complex legal and political mechanisms, reflecting the UK's evolving constitutional landscape.
The rule of law in the UK
Fundamental principles and elements
Top images from around the web for Fundamental principles and elements
WikiCorporates talk:Contents - WikiCorporates View original
Is this image relevant?
Rule of law — Wikipédia View original
Is this image relevant?
Federalism: How should power be structurally divided? | United States Government View original
Is this image relevant?
WikiCorporates talk:Contents - WikiCorporates View original
Is this image relevant?
Rule of law — Wikipédia View original
Is this image relevant?
1 of 3
Top images from around the web for Fundamental principles and elements
WikiCorporates talk:Contents - WikiCorporates View original
Is this image relevant?
Rule of law — Wikipédia View original
Is this image relevant?
Federalism: How should power be structurally divided? | United States Government View original
Is this image relevant?
WikiCorporates talk:Contents - WikiCorporates View original
Is this image relevant?
Rule of law — Wikipédia View original
Is this image relevant?
1 of 3
- Rule of law ensures all individuals and institutions, including the government, are subject to and accountable to the law
- Key elements include legal certainty, , and (executive, legislative, judicial branches)
- Provides framework for protecting individual rights and freedoms, limiting arbitrary government action, and maintaining social order
- Not codified in a single document in the UK, derived from various sources (statutes, , constitutional conventions)
- Evolved over centuries with contributions from legal theorists (, )
- Essential for maintaining public confidence in legal system and ensuring legitimacy of governmental authority
Historical development and sources
- Concept rooted in (1215), limiting monarch's power and establishing due process
- (1689) further strengthened rule of law by limiting royal prerogative and establishing parliamentary supremacy
- Common law development through judicial decisions (precedent system)
- Statutes passed by Parliament (Acts of Parliament)
- Constitutional conventions (unwritten rules and practices)
- International treaties and agreements ()
Practical applications and challenges
- Ensures fair trials and due process in criminal justice system
- Protects freedom of speech and expression (libel laws, press freedom)
- Regulates government surveillance and data collection ()
- Challenges in balancing national security with individual rights (anti-terrorism legislation)
- Addressing potential conflicts between rule of law and parliamentary sovereignty
- Adapting to technological advancements and new forms of communication (social media regulations)
Rule of law vs Parliamentary sovereignty
Principles of parliamentary sovereignty
- Parliament has supreme and unlimited law-making power in the UK
- Can theoretically pass any law, including those contradicting previous legislation or fundamental rights
- No parliament can bind its successors ()
- Courts cannot strike down primary legislation due to parliamentary sovereignty
- Principle evolved from historical struggles between monarchy and parliament ( 1688)
- Traditionally viewed as cornerstone of UK's unwritten constitution
Potential conflicts and limitations
- Rule of law acts as constraint on parliamentary sovereignty by promoting legal certainty and protecting fundamental rights
- Courts interpret and apply laws passed by Parliament, but cannot overturn them
- introduced mechanism for courts to issue declarations of incompatibility (European Convention on Human Rights)
- Membership in European Union affected supremacy of EU law ()
- restored full parliamentary sovereignty
- Tension between parliamentary supremacy and protection of fundamental rights (prisoner voting rights case)
International influences and obligations
- UK's ratification of international treaties impacts parliamentary sovereignty (UN Convention on the Rights of the Child)
- Monist vs dualist approach to international law in UK legal system
- Influence of European Court of Human Rights judgments on UK law and policy
- Balancing parliamentary sovereignty with compliance to international obligations (refugee and asylum policies)
- Impact of globalization and interconnected legal systems on traditional notions of sovereignty
Balancing rule of law and sovereignty
Constitutional reforms and mechanisms
- strengthened separation of powers and judicial independence
- Creation of in 2009 enhanced judiciary's role in constitutional matters
- (repealed in 2022) attempted to regulate dissolution of parliament
- Increasing use of referendums for major constitutional changes (Scottish independence, Brexit)
- Proposals for a written constitution to clarify relationship between rule of law and parliamentary sovereignty
- of powers to Scotland, Wales, and Northern Ireland assemblies
Challenges and controversies
- Tension when Parliament passes laws perceived as undermining fundamental rights or rule of law principles
- Lack of codified constitution makes resolving conflicts between parliamentary sovereignty and rule of law difficult
- Increasing use of delegated legislation and Henry VIII powers raises concerns about erosion of parliamentary scrutiny
- Prorogation of Parliament controversy in 2019 highlighted complex interplay between executive power, parliamentary sovereignty, and rule of law
- Debates over extent of parliamentary sovereignty post-Brexit (Internal Market Bill 2020)
- Balancing national security concerns with rule of law principles (Shamima Begum case)
Legal and political responses
- Development of common law principles by judiciary to protect fundamental rights ()
- Parliamentary committees scrutinizing legislation for compliance with human rights and rule of law ()
- Increased of executive actions to ensure compliance with legal principles
- Academic and public debates on constitutional reform and modernization
- Proposals for strengthening parliamentary oversight of executive actions (reform of prerogative powers)
- Calls for greater transparency in government decision-making processes
Judiciary's role in upholding the rule of law
Judicial review and constitutional interpretation
- Courts scrutinize legality of executive actions and secondary legislation through judicial review
- Doctrine of allows courts to declare administrative actions invalid if exceeding powers granted by Parliament
- Statutory interpretation involves applying rules and presumptions to ensure legislation aligns with fundamental rights
- Development of common law principles to protect rights when interpreting ambiguous legislation (principle of legality)
- Judicial review cases challenging government policies (, 2004)
- Interpretation of constitutional statutes (European Union (Withdrawal) Act 2018)
Separation of powers and judicial independence
- Creation of UK Supreme Court enhanced visibility and authority of judiciary in constitutional matters
- Appointment process for judges aims to ensure independence from political influence
- Judicial Appointments Commission established to promote diversity and merit-based selection
- Principle of security of tenure protects judges from arbitrary removal
- Challenges in maintaining independence while navigating politically sensitive cases
- Debates over appropriate level of judicial intervention in policy matters ( on Brexit)
Evolving role in protecting rights and freedoms
- Development of privacy law through judicial decisions (phone hacking cases)
- Interpretation and application of Human Rights Act 1998 in domestic courts
- Issuing declarations of incompatibility when legislation conflicts with European Convention on Human Rights
- Balancing competing rights and interests in complex cases (right to die, freedom of religion)
- Addressing new challenges posed by technological advancements (data protection, artificial intelligence)
- Engaging with international legal norms and comparative jurisprudence in decision-making
Key Terms to Review (29)
A.V. Dicey: A.V. Dicey was a British jurist and constitutional theorist, best known for his influential work 'Introduction to the Study of the Law of the Constitution,' published in 1885. His ideas helped shape the understanding of constitutional law in the UK, particularly regarding the rule of law and parliamentary sovereignty, making him a key figure in discussions around how these principles govern the political landscape.
Belmarsh Prison Case: The Belmarsh Prison Case refers to a significant legal decision in the UK concerning the detention of foreign nationals suspected of terrorism without charge. This case highlighted the tension between national security and the protection of individual rights, raising questions about the compatibility of such detention practices with the rule of law and the principles of parliamentary sovereignty.
Bill of Rights: A Bill of Rights is a formal statement of the fundamental rights and freedoms that are guaranteed to individuals, serving as a safeguard against the abuse of power by the government. It plays a critical role in establishing legal protections for citizens, reflecting the principles of democracy and the importance of individual liberties within a constitutional framework.
Brexit and European Union (Withdrawal) Act 2018: The Brexit and European Union (Withdrawal) Act 2018 is a piece of legislation that facilitated the United Kingdom's exit from the European Union, formally known as Brexit. This act aimed to repeal the European Communities Act 1972, effectively ending the supremacy of EU law in the UK, while also ensuring that the existing body of EU law would be retained in UK law post-Brexit, providing a legal framework for the transition.
Checks and balances: Checks and balances refer to a system in which different branches of government have powers that can limit or check each other, ensuring that no single branch becomes too powerful. This principle is crucial for maintaining the rule of law, protecting individual rights, and promoting a balanced government structure, impacting the relationship between the judiciary, executive, and legislative branches.
Common law: Common law is a system of law developed through court decisions and judicial rulings, rather than through legislative statutes or executive branch action. It emphasizes the role of judges in interpreting laws and establishing legal precedents that guide future cases, which connects to the principles of fairness and equality before the law. This legal framework significantly influences the nature of the constitution, as it serves as a source of law that complements statutory provisions and is essential in understanding the application of parliamentary sovereignty and the rule of law.
Constitutional Reform Act 2005: The Constitutional Reform Act 2005 is a key piece of legislation that restructured the judiciary of the United Kingdom, establishing the Supreme Court and enhancing judicial independence. This act marked a significant shift in the balance of power within the UK's constitution, highlighting the importance of an independent judiciary and its role in maintaining the rule of law and parliamentary sovereignty.
Devolution: Devolution refers to the transfer of powers and responsibilities from a central government to local or regional governments. This process has reshaped governance in various parts of the UK, allowing for greater autonomy and self-governance, impacting political dynamics and public policy across the regions.
Doctrine of implied repeal: The doctrine of implied repeal is a legal principle in the UK constitution which asserts that if a new statute conflicts with an existing statute, the newer law takes precedence and effectively repeals the older one, even if there is no explicit mention of repeal. This doctrine highlights the supremacy of Parliament and the importance of legislative intent, ensuring that laws can evolve without the need for a formal repeal process.
Equality before the law: Equality before the law is a legal principle stating that all individuals, regardless of status, wealth, or position, are subject to the same laws and entitled to equal protection and treatment under the law. This concept underpins the idea that no one is above the law and serves as a fundamental aspect of justice in society, ensuring fairness and impartiality in legal proceedings.
European Communities Act 1972: The European Communities Act 1972 is a significant piece of legislation that facilitated the United Kingdom's entry into the European Economic Community (EEC), which later evolved into the European Union (EU). This act integrated EU law into UK law, establishing a framework for the relationship between the UK and European institutions, while impacting the structure of Parliament, the rule of law, and parliamentary sovereignty.
European Convention on Human Rights: The European Convention on Human Rights (ECHR) is an international treaty established in 1950 that aims to protect human rights and fundamental freedoms in Europe. It forms the foundation for the legal framework of human rights in the region and is closely linked to the UK’s own legal principles, particularly through the Human Rights Act 1998, which incorporates ECHR rights into UK law.
Fixed-Term Parliaments Act 2011: The Fixed-Term Parliaments Act 2011 is a UK law that established a system of regular five-year intervals between general elections, thereby removing the power of the Prime Minister to call early elections at will. This act aimed to provide greater stability in government and reduce the potential for political manipulation related to election timing.
Glorious Revolution: The Glorious Revolution was a pivotal event in 1688 in England that saw the overthrow of King James II and the ascension of William III and Mary II to the throne. This revolution established constitutional monarchy, reinforcing the role of Parliament and limiting the powers of the monarchy, significantly influencing the relationship between the executive and legislative branches of government.
Human Rights Act 1998: The Human Rights Act 1998 is a piece of legislation in the United Kingdom that incorporates the rights contained in the European Convention on Human Rights (ECHR) into UK law. This act allows individuals to seek justice in UK courts for breaches of their rights as outlined in the ECHR, thereby enhancing the protection of civil liberties and individual rights within the framework of the UK's constitution.
Investigatory Powers Act 2016: The Investigatory Powers Act 2016 is a UK law that grants extensive powers to law enforcement and intelligence agencies to carry out surveillance and collect data to combat crime and terrorism. This legislation has sparked debate about its impact on privacy rights and the balance between state security measures and individual liberties, particularly in relation to the rule of law and parliamentary sovereignty.
Joint Committee on Human Rights: The Joint Committee on Human Rights is a parliamentary committee in the UK that examines human rights issues and ensures that legislation complies with human rights standards. It plays a critical role in scrutinizing government actions and promoting the protection of individual rights within the framework of the rule of law and parliamentary sovereignty.
Judicial Review: Judicial review is the power of courts to assess whether a law, policy, or action by the government is constitutional and to invalidate those that are not. This mechanism plays a crucial role in maintaining the balance of power between branches of government and protecting individual rights within the legal framework.
Legal Sovereignty: Legal sovereignty refers to the ultimate authority of a legal body to make and enforce laws within a specific territory. It is the concept that within a state, no higher authority exists above the law made by the sovereign entity, which can be the parliament, government, or other recognized legal authority. This principle underpins the rule of law and parliamentary sovereignty, establishing that the legislature has the power to enact laws that govern society, while also highlighting the limits of those laws in ensuring justice and equality.
Lord Bingham: Lord Bingham was a prominent British jurist who served as the Master of the Rolls and was later appointed as a Law Lord, contributing significantly to the development of common law in the UK. He is well-known for his advocacy of the rule of law and judicial independence, emphasizing the importance of these principles within the framework of a functioning democracy and the separation of powers.
Magna Carta: The Magna Carta, signed in 1215, is a foundational legal document that established the principle that everyone, including the king, is subject to the law. Its significance extends beyond its historical context, influencing various aspects of governance, including the royal prerogative, the rule of law, and the balance of power between the state and individual liberties.
Miller Cases: The Miller Cases refer to a series of significant legal challenges in the UK regarding the relationship between parliamentary sovereignty and the rule of law, particularly in relation to the exercise of executive power. These cases, notably Miller v Secretary of State for Exiting the European Union (2017) and Miller II (2019), highlight how the courts can intervene when parliamentary processes are threatened or when executive actions appear to overstep legal boundaries, reinforcing the principle that the law applies equally to all, including government bodies.
Parliamentary Sovereignty: Parliamentary sovereignty is a fundamental principle of the UK constitution that establishes Parliament as the supreme legal authority, with the ability to create or repeal any law without being subject to legal limitations. This means that no other body, including the judiciary, can challenge or invalidate legislation passed by Parliament.
Principle of Legality: The principle of legality is a fundamental legal doctrine stating that individuals cannot be punished or have their rights restricted without clear and specific legal authority. This principle ensures that laws are made known and applied consistently, connecting it to the concepts of the rule of law and the authority of Parliament in creating legislation.
Rule of law: The rule of law is a foundational principle stating that all individuals and institutions, including the government, are subject to and accountable under the law, which is fairly applied and enforced. This principle ensures that no one is above the law and is crucial for maintaining justice, order, and individual rights within a society.
Separation of powers: Separation of powers is a governance model that divides the responsibilities and powers of government into distinct branches to prevent any one branch from exerting too much power. This principle helps maintain a system of checks and balances, ensuring that each branch—legislative, executive, and judicial—operates independently while also holding one another accountable.
Supremacy of law: The supremacy of law refers to the principle that all individuals and institutions, including the government, are accountable to the law, which is applied equally and fairly. This concept underscores the idea that no one is above the law, and it plays a crucial role in maintaining order and protecting individual rights within a legal framework. It ensures that laws govern society rather than arbitrary decisions by individual leaders or institutions.
UK Supreme Court: The UK Supreme Court is the highest court in the United Kingdom, established in 2009, and serves as the final court of appeal in civil and criminal cases. It plays a crucial role in interpreting law and upholding justice, significantly impacting the rule of law and parliamentary sovereignty while navigating the challenges of constitutionalism in a globalized world.
Ultra Vires: Ultra vires is a Latin term meaning 'beyond the powers.' It refers to actions taken by an individual or organization that exceed the authority granted to them by law or a governing body. This concept plays a crucial role in ensuring that both public authorities and private entities operate within their legal limits, reinforcing accountability and legality in governance and decision-making.