The Parliament and the parliamentary sovereignity
- English legal system and difference with the civil law
- Distinction between Common law and equity
- Distinction between Common Law and statute law (written law)
- House of Lords, House of Commons and the parliamentary sovereignity
- The legislation : Source of English law
- Statutory interpretation
- Case Law and precedent in the English Legal System
- Stare decisis or the doctrine of binding precedent
- Judge-Made Law
- What is Equity in English Common Law Tradition ?
- Equity in the english legal system
- Custome Law and Soft Law
- Treaties : Ratification and Provisional Application
- Application of european law by English courts
- How does the European court of Human Rights affect the UK?
- Foreign Law in the English Courts : conflict of laws rule
- Lower courts : Magistrate’s courts, Crown court, county court
- High Court : Chancery and Queen’s Bench Division
- Supreme court and Court of appeal
- Lord Chancellor, lord Chief Justice (authorities of the judicial system)
- The independence of the judiciary in England and Wales
- Lawyers in the english legal system : Solicitors and Barristers
- English Law – English legal system
Legislation: law passed directly or indirectly by Parliament. It’s not only the laws this is all pieces that the parliament adopt or that he delegated at other parties to adapt.
I) the Parliament:
The etymology of the word: the word is originate in the French word. At the beginning, Parliament was an expression used to describe the consultative meetings on the English monarchy with a large group of nobles and prelates (church men). The word parliament was the place where the monarch talks with the nobles and the church men. At that time, the language used by the monarch and the elite was French. It comes from the word “parler”.
The Parliament today is composed of 3 bodies:
- – The monarch, now the queen.
- – The house of Lords.
- – The house of Commons.
A) The house of Commons (HC): (peut être traduit par assembléenationale mais pas très approrié) :
It’s close to “comment”. The commons were the none nobles and the none church men. The commons are people who are neither nobles neither church men.
King Eduard the 1st which who in 1275 called his first Parliament. He called not only the nobles and church men but also the knights of the shire (chevaliers) who represented the county (zone rurale) and he called also burgesses (bourgeoisie) who represented the city. It was accepted that Common people, that is people affected by taxations, that they have to give their consent to taxations in Parliament. It was established that the Commons have to participate and consent was to be adopted. In the 14th century, two distinct houses of Parliament emerged. On the one side, the nobles and church men and on the other side the Commons. Nobles and church men were in House of Lords.
Today the house of Commons is a democratically elected chamber of Parliament. There are 650 members of Parliament (MPs) as they are 650 constituencies (local division in England to elect a representant, a MPs). Every five years an election is organized, but very often there is an election before the expiration because of the politic games. The system is quite easy, the person who gets the more vote will be elected, there is no proportionate system.
MPs aren’t only for England, there are also for Scotland, Wales and NI. This is a parliament for the whole territory, in addition there is also a Parliament in Scotland and a national assembly in Wales and in NI. This isn’t the English Parliament.
It’s organized on the basis of political parties. There are 3 main political parties in England today which are the labors, the liberal democrats and conservative. Nearly all members of Parliament represent a political party. But even more the cabinet found by the Prime Minister is composed only of members of Parliament or Lords. You need to be elected to be part of the government in England. It’s not the case in France.
As the cabinet is formed only of members of Parliament that means that the HC is really the place where the opposition can have a big role. It’s the concept of the shadow government. It came from the opposition, when there are elections the opposition forms a shadow government. There is a distinct role of the most important members of opposition.
Government opposite to the shadow government in House of Common =>voir plan de la chambre des Communes.
Distinction between frontbenchers and backbenchers. The frontbenchers (who sit in the front) are members of Parliament who are members of the government. The backbenchers are Member of Parliament who aren’t part of the government.
B) The house of Lords (HL):
Unlike the members of Parliament they aren’t elected. The majority are appointed by the Queen on the recommendation of the Prime Minister or of the House of Lords appointment commission.
Before the Lords had inherited titles (nobles and churchmen). It’s not a democratic system. It has been a long struggle to change that. But it changes in 1999 with the House Of Lords Act. This act removed the right of most hereditary peers to sit and vote in House Of Lords. It has been agreed with the House Of Lords that some of them will stay, 92 peers will remain in the House Of Lords and will able to sit and vote. The 92 hereditary peers (paires) is a fix number. When one dies there is an election to elect another hereditary peers. The lords that have been expulsed maybe candidate to be elected when one of the 92 dies.
Today there are around 160 Lords. There are 2 categories of Lords:
– The Lords temporal: different kinds of lords temporal:
- Life peers: a peer is a member of the House of Lords. They are people appointed by the Queen on the recommendation of the Prime Minister or the appointment commission of the House of Lords.
- Elected hereditary peers:these are the 92 remaining peers.
- Until 2009: judicial peers. They were the members of the HL who are from the judicial comity. The HL doesn’t have a judicial function anymore and the highest judicial function is now played by the UK Supreme Court.
Lords temporal because there are Lords spiritual who are 26 bishops of the Church of England. This presence of church men is still controverted in England. Why only the church of England? There is lot of confessions in England and only one is represented in the HL. We mustn’t forget that there is a democratic process since 1999. There was a bill, a proposal to review the composition of the HL which was presented in 2011. It was presented that 80% of the Lords will be elected and not appoint. But these bill was dropped in 2011 and the project is now buried.
There is more benches in the middle for independent lords.
They share the task with the members of Parliament of making law, of considering what public policy should be and thirdly the government is responsible before the House of Lords and the HC (holding government to account). They ask questions to the government.
II) The parliamentary sovereignty:
Parliamentary sovereignty is a principle of the UK constitution; it makes parliament the supreme legal authority in the UK. When we said that the Parliament is sovereign that means that nobody over the parliament exist in the UK.
This parliamentary sovereignty has several legal consequences:
- 1) No judicial review in England: judicial review means the possibility for courts to examine whether an act is in conformity with the constitution or not. For instance, in the USA there is a judicial review. Judges may decide that an act that is invoked before them, that this act is contrary to the US constitution and therefore they decide to not apply it. This isn’t possible in England since what the parliament does is sovereign, nobody can judge what the parliament is doing. That means that the legal system as in France doesn’t apply in the UK, the law can’t be attacked by anyone like in France.
- 2) Any earlier inconsistent legislation is automatically repealed. If the parliament decides to adopt a new act and if this act contradicts an earlier act then this new act will automatically repealed the other act.Because the current parliament has always right.
- 3) Contrary to the French Constitution, Parliament may pass any kind of law without restrictions;there is no limitation as to the issues that the Parliament can deal with. There is only one formal limitation: the parliament cannot pass a law that attempts to bind its successor either as to the content of legislation all the manner and form of enactment, he cannot forbid a future action of the parliament because the future parliament will be sovereign too.
The acts of parliament are in England the supreme form of law.
However there are some developments which affect this PS.
Over the years, parliament has passed laws that limit the application of PS. These laws reflect political developments but within onside the UK:
- – The devolution of power to bodies like the Scottish parliament and Welsh Assembly.It has given some limitations to the PS.
- – The Human Rights Act in 1998 which is the act that transposes European convention in the English legal system. This act has given some limitations to the PS.
- – The UK’s entry to the European Union in 1972. EU law has to be applied by the courts and whether a contradiction exists between EU law and UK law because the EU law prevails.
- – The decision to establish a UK Supreme Court in 2009, which ends the HL function as the UK’s final appeal, court of appeal. Parliament lost a portion of his sovereignty during this process.
These recent developments have limited the Parliament sovereignty.
Nonetheless, we should still remember that Parliament is sovereign and that Parliament could repeal any of the laws implementing these changes.
This principle is important to understand the process of legislation in England.
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