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The Sovereignty of Parliament

In the UK, one of the main features of the constitutional settlement is the acceptance of parliamentary sovereignty (while in other European countries it is the Constitution which represents the core of the system). According to some authors (Vernon Bogdanor), "it is clear that there is a CONFLICT between the sovereignty of Parliament and the rule of law".

The idea of parliamentary sovereignty does not mean that Parliament is omnipotent, but that it has no legislative superior.
The courts have no inherent powers to invalidate, strike down, supersede or disregard the provision of an unambiguous statute duly enacted by the Queen in Parliament, and indeed and extremely limited power to enquire whether a statute has been duly enacted. In other words, law prevails on the courts, which de facto cannot pronounce a judgement on the validity of an act of Parliament.

Many arguments have been raised in this sense: some say that parliamentary sovereignty cannot be fully respected nowadays; others think that Parliament’s sovereignty is no longer absolute. Bingham refuses these and other opinions and asserts an important idea: the principle of parliamentary sovereignty cannot be ascribed to a statute, but it does not follow that it has been "created" by the judges, who could alter it. The judges did not by themselves establish the principle and they cannot, by themselves, change it.

 The question of Iraq War (2003) has to be observed in this light. The debate is on whether the Security Council, with its Resolutions, had allowed for a military intervention.
There are discordant opinions: Lord Bingham thinks that the invasion of Iraq by the U.S., the UK and some other states was not authorized by the Security Council and therefore that there was a serious violation of international law and of the ROL. For the effect of acting unilaterally was to undermine the foundation on which the post-1945 consensus had been constructed. The moment that a state treats the rules of international law as binding on others but not on itself, the compact on which the law rests is broken.
Art. 5 provides that a person can be detained, even if not indefinitely, if deportation is pending. However, it is possible to derogate to almost all the Convention’s provisions, in exceptional cases, under art. 15 of the ECHR.

di Luca Porcella
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