It is through laws that policies of government are laid down for implementation. It does however have many constitutional roles to fulfil such as the power of the purse, oversight, foreign policy and legislation. It can be argues that Congress does fulfil its constitutional roles as it may deliver effective over sighting, legislation, money bills, representation and foreign policy that may provide good checks and balances. However, most would argue that Congress may not carry its roles effectively thus leading to poor scrutiny (sometimes over scrutinising) which leads to ineffective fulfilment of constitutional roles. The principle organ of the US state is to legislate, represent and scrutinise the other, safely separated, branches of the government.
The doctrine of parliament sovereignty has been regarded as the most fundamental element of the British constitution. It can be summarised in three points: that parliament has the power to make any law they wish; that no parliament can create a law that a future parliament cannot change; that only parliament can change or reverse a law passed by parliament. Parliamentary Sovereignty thus gives unconditional power to the Westminster Parliament. A.V. Dicey describes it as ‘the dominant characteristic of our political institutions',and ‘the very keystone of the law of constitution'.
Sample multiple-choice questions for the English Legal System module for LLB open learning 1. Which of the statements below most accurately reflects the constitutional position between the legislature and the judiciary: a) Parliament encourages the judiciary to make law through the process of statutory interpretation because it does not have enough parliamentary time to enact laws itself. b) Parliament is the supreme lawmaking body and the role of the judiciary is to interpret and apply law made by Parliament. c) The judiciary considers itself a primary lawmaking body equal to Parliament. d) It is the role of the judiciary, when interpreting statutes, to fill in the gaps in the statutes.
Parliament in Britain is generally regarded as making laws that apply to the entire population but there is no universal agreement that it should have unlimited power to make laws of whatever kind. In many constitutions, legal limits on parliament to make laws are set out in their written constitutions but as Britain does not have such a written constitution, does it mean that there are no legal limits on parliament? The traditional doctrine of Parliamentary sovereignty was first defined by Dicey in the 19th century in his book “The Law of the Constitution”. According to Dicey’s theory, parliamentary sovereignty means, “the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a ride to override or set asides the legislation of parliament.” This idea of parliament being sovereign was formed at time where England was not a democratic country and it could be argued that this theory is dated and can no longer be regarded as an immutable part of UK Constitutional law. If Dicey’s theory is placed in historical context, it was produced in a very different political environment to today.
The role of the executive ‘..includes initiating and implementing legislation, maintaining order and security, promoting social and economic welfare, administering public services and conducting the external relations of the state. The judiciary is made up mainly of professional judges, and their main function is ‘to determine disputed questions of fact and law in accordance with the law laid down by Parliament and expounded by the courts and ..is exercised mainly in the civil and criminal courts.' The question which now arises is whether or not there should be a strict separation of each of the above functions. Locke stated: ..it may be too great a temptation to human frailty..for the same persons who have the power of making laws, to have also their hands the power to execute them, whereby
This section helps judges discover the exact meaning put upon the word by Parliament. The final Intrinsic Aid is the schedules which can be found in the back of the Act, the schedule cannot always be used to help find the true meaning of the Act unless specifically referred to within a section. The schedule provides additional information surrounding the Act and its intentions. Extrinsic Aids are any references that are not concealed within the act that is being interpreted. The most common External Aid which is also used within everyday life is a Dictionary.
So how can judge create law through the doctrine of precedent? The basic doctrine means every court in the UK is bound to follow any decision made by a superior court and in general, appellate courts are bound by their own decisions. Although this appears that the courts are not allowed to develop law, there are ways in which the judicial precedent can be avoided, in turn, allowing
Secondly there is Common Law, Common law includes legal principles that have been developed and applied by UK courts. The courts interpret and clarify the law where there is no clear statute law. Common law takes legal precedent made by judges, for example, the right of homeowners to tackle intruders who enter their property. Government ministers may clarify or amend common law trough Acts of Parliament. The common law also includes customs and precedents that have become accepted practice.
Firstly, legal sovereignty should be distinguished from political sovereignty. The former refers to the unrestricted legislative power of Parliament that this essay is primarily concerned with, while the latter refers to unlimited political power – this power lies in the electorate in democracies. Secondly, it is important to note that Parliament’s legislative supremacy lies only in the primary legislation borne out of the agreement of the three bodies, namely the House of Commons, the House of Lords and the Queen. Hence, it can be said that ‘whatever the Queen-in-Parliament
Common law, which has developed over many years becoming accepted due to court judgements. The laws and customs of Parliament re also a source of the constitution. Works of authority are also referred to as authoritative sources such as books by Dicey or Bagehot. Finally, European Union Law also impacts the UK constitution as the judgements of the European court of Justice, in general EU law has precedence over that passed by Parliament. A codified constitution is too inflexible and cannot adapt to the changing political circumstance, such as society changing.