What limits are there, could there be and should
What limits are at that place, could at that place be and should at that place be on the legislative domination of the Queen in Parliament. ( 1500 words )
The English constitutional colony remainders on the footing of a constitutional monarchy. This means that despite the deficiency of a individual written fundamental law, the English sovereign, as caput of province, must govern in conformity with the fundamental law ( itself an formless construct constituted by assorted historical paperss, and conventional patterns ) . The impression of a constitutional monarchy itself suggests a limited monarchy distinct, for illustration, from the absolute monarchies of historical era which could govern randomly and without restraint. The sovereign in England is besides limited in the sense that she fulfils a mostly symbolic function, as opposed to exerting existent political power. To this extent, so, there are assorted bounds on the Queen’s nominal legislative domination, which will be discussed, as will the properness of these bounds, and any possible add-ons.
In his seminal work,The English Constitution, the 19th century constitutional historian Walter Bagehot wrote that the English sovereign had the right to be consulted, the right to rede and the right to warn. [ 1 ] These rights can be seen to associate more to the influence which the sovereign may decently exercise over the authorities than to the existent exercising of monarchal power. As Bogdanor has pointed out, it is both important and necessary that the existent influence of the present Head of State, the Queen, over her consecutive premier curates, is kept hidden from the public ‘by an official head covering of discretion’ . [ 2 ] It is important because it makes it hard, possibly impossible, accurately to measure the existent place of legislative domination of the Queen ( as opposed to the theoretical place ) ; and it is necessary because this is an built-in portion of the fundamental law that has evolved easy over a period of centuries.
The legislative domination of the Queen in Parliament is a construct that pays attentiveness to the historical development of the British fundamental law. It is inherently a figure of address instead than a description of a world. The Queen is nominally legislatively supreme in that all statute law, after go throughing through the two Houses of Parliament, must be ratified by the sovereign. Rather more than this, nevertheless, it the construct recognises the being of the legislative domination of Parliament. The term ‘the Crown’ is on a regular basis used to denote the executive subdivision of the province playing in its official executive capacity. [ 3 ] In other words, it refers to the activities of the authorities that is moving on behalf of the Crown. This reflects the mostly symbolic intensions of the ‘legislative domination of the Queen in Parliament’ .
A significant component of this construct relates to what is known as the Royal Prerogative. This has been described by Blackstone as ‘that particular pre-eminence which the King hath, over and above all other individuals, and out of the ordinary class of the common jurisprudence, in right of his existent dignity…’ [ 4 ] Again, this thought is more of a acknowledgment of the historical development of the English fundamental law than an accurate contemplation of the existent powers of the sovereign. It refers to executive powers that are, today, vested in the executive ( Ministers of the Crown ) to take one-sided action in certain fortunes without the authorization of an Act of Parliament, to cite Dicey. [ 5 ] These powers are non thoroughly and precisely defined, even in today’s universe, but the closest we have come to such a list was in 2003, when the House of Commons Public Administration Select Committee published a non-exhaustive list of prerogative powers. [ 6 ] These included the power of assignment and dismissal of curates, the evocation, prorogation and disintegration of Parliament, royal acquiescence to measures, directing the temperament of the armed forces in UK, the granting of honours ; and in foreign personal businesss, the declaration of war and peace, the preparation of pacts and the acknowledgment of foreign provinces.
The legislative domination of the Queen in Parliament, so, refers both to these prerogative powers retained by the executive on behalf of the Queen, and besides the wider construct of the legislative domination of Parliament. In this sense, the term ‘the Queen in Parliament’ simply reflects the historical necessity for Royal Assent in go throughing Bills into Acts. A wider building of it incorporates both the House of Commons and the House of Lords into the limitless legislative domination. This can be seen as an avowal of the high quality in the English legal system of statutory jurisprudence to the common jurisprudence. The bench is expected to obey the legislative acts which Parliament has produced, and is merely permitted to change them incrementally to take history of new state of affairss, through the device of judicial reading. This in itself can be seen as a bound to the legislative domination of the Queen in Parliament ; the bench organizing a kind of balance to executive power. This has become progressively of import with the coming and growing of the procedure of judicial reappraisal as a agency of oppugning executive action where it is felt that a public organic structure has acted beyond its powers.
Although the judiciary provides a valuable and necessary step of restraint on the legislative domination of the Queen in Parliament, it is important that it is the actions of the executive instead than the Act of Parliament itself that can be questioned. In the 19th century instance ofEx P Canon Selwyn( 1872 ) , Cockburn CJ stated that ‘there is no judicial organic structure in the state by which the cogency of an Act of Parliament can be questioned. An Act of the legislative assembly is superior in authorization to any tribunal of law.’ It is important that he referred to the act of the legislative assembly, and non the actions of the executive. It is merely the latter of the two in which, in the early 21st century, the tribunals may step in in certain fortunes. There are, nevertheless, extra bounds other than the tribunals, to the legislative domination of the Queen in Parliament, which have developed since the 2nd half of the last century ; most notably those bounds associated with the European Communities, and those bounds associated with the human rights statute law of 1998.
The former of the two was considered extensively in the instance ofR V Secretary of State for Transport, ex p Factortame Ltd( No 2 ) ( 1991 ) . This came approximately because of theEuropean Communities Act 1972, which brought England into the EC, and wittingly and volitionally submitted a grade of sovereignty to the European degree. The result of the instance was that the tribunals were obliged to construe domestic statute law in conformity with Community statute law. It recognised, in other words, the domination of Community jurisprudence over domestic jurisprudence. The consequence of this on the domination of the Queen in Parliament is clear ; the legislative assembly is no longer able to exert limitless domination in passing. It has increased the powers of the tribunal by compeling them to construe statute law in a mode compatible with Community law. What is of import, nevertheless, is that it was the really domination of Parliament that caused this to be the instance. The 1972 Parliament that passed the ECA 1972 expressly stated that by fall ining the Community, the legislative domination of Parliament would be curtailed ( ECA 1972, s2 ( 4 ) ) .
A similar bound to the legislative domination of the Crown in Parliament has been effected by the coming of theHuman Rights Act 1998which incorporated theEuropean Convention on Human Rightsinto English jurisprudence. Again it should be noted that this was passed by a legislatively supreme Parliament and as such, it was a willing sezession of a grade of domination. Pursuant to that Act, and once more recalibrating the balance of power in favor of the tribunals, statute law must now be interpreted in a mode consistent with Convention rights ( HRA 1998, s3 ( 1 ) ) . The existent bounds imposed by this, nevertheless, are non every bit rigorous as they might be, as Lord Steyn observed inR V DPP, ex p Kebilene( 1999 ) . ‘In a instance of mutual exclusiveness, which can non be avoided by reading under subdivision 3 ( 1 ) , the tribunals may non disapply the legislation.’ As can be seen, so, this in some respects preserves the legislative domination of the Queen in Parliament, by restricting the parametric quantities within which the bench may oppugn the cogency of an Act of Parliament.
There are, so, assorted bounds to the legislative domination of the Queen in Parliament although non, as has been seen, to those lasting prerogative powers exercisable by the executive on behalf of the Crown. These bounds are important, but have been accepted by a knowing and willing Parliament, and the effects remain stymied by the keeping of certain facets of the constitutional agreement.
European Communities Act 1972
European Convention on Human Rights 1950
Human Rights Act 1998
Ex P Canon Selwyn ( 1872 )
R V DPP, ex p Kebilene [ 1999 ] 4 All ER 801
R V Secretary of State for Transport, ex p Factortame Ltd [ 1991 ] 1 AC 603
Blackstone, W. ( 1979 )Comments on the Laws ofEngland( Chicago: Chicago University Press )
Bogdanor, V. ( 2004 )The British Constitution in the Twentieth Century( Oxford: OUP )
Leyland, P. and Woods, T. ( 2002 )Textbook on Administrative Law, 4ThursdayEdition ( Oxford: OUP )
Parpworth, N. ( 2004 )Constitutional and Administrative Law, 3rdEdition ( London: LexisNexis )