Notes to the text

House of Tudor ruled England from 1485 to 1603. the dynasty began when Henry (later Henry VII overthrew Richard III in 1485. it ended with the death of Elizabeth I in 1603.

Tenant-in-chief – in feudal and old English law one who held or possessed lands immediately under the king, in right of his crown and dignity.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I Make up adjectives from the following nouns and group them according to the suffixes used:

Power, influence, theory, use, force, function, monarchy, system, wealth, commerce, skill, law, custom, origin, office, purpose, favour, practice, history, period, body, parliament, pyramid, reason, basis, judge, right, king, decision.

Task II a) Match the words on the right with their synonyms on the left:

summon

originate as

dismiss

evolve

enact

transmit

confer

aspire

grant

develop

gather

transfer

dissolve

adopt

appear as

aim at

b) Use the verbs conferred, enacted, dismissed, evolved, aspires, granted, enact, conferred, transfer, enacted, developed, enacted, granted, to dismiss, adopted, summoned, originated, develop, dismiss, gathered, in the following sentences;

c) Translate the sentences:

1. With the consent of his subjects in Parliament, the King exercised an absolute power to make law, … by and subject only to God.

2. The King in Parliament represented the Church as well as the temporal realm: “the parliament . . . together represents the estate of all the people within this realm, that is to say of the whole catholic church thereof.”

3. Medieval jurists and political writers … the theory that sovereignty is the supreme authority in the state.

4. Privy Council held that, when the Imperial Parliament … power to colonial legislatures to make laws for 'the peace, welfare and good government' of their colonies, it … them power of the same nature, as plenary and absolute, as its own power.

5. Give to the Judges a power of annulling Parliament's acts; and you … a portion of the supreme power from an assembly which the people have had some share, at least, in choosing, to a set of men in the choice of whom they have had not the least imaginable share: to a set of men appointed solely by the Crown.

6. Some law-makers, such as municipal councils, which make by-laws, exercise an authority … on them by a higher law, made by a superior law-maker.

7. John Toland insisted that the legislature in any age had as much right to make new laws as any previous one, and that ‘to … a law for posterity, is no more, than recommending a thing to their choice; since if they think there's a reason for it, they can no more be divested of the power to repeal any law … by their ancestors, than we are of repealing such laws as have been … by ours.”

8. Parliament might have to demand that the judges be … , and replaced with more compliant ones willing to overrule their predecessors' decision.

9. Democracy … to … important civic virtues: to reduce feelings of powerlessness, enhance self-confidence and self-respect, and promote education, a broadening of horizons, and an appreciation of other points of view.

10. The sovereignty of Parliament … from that of the medieval English King.

11. It was often argued that if legislators violated a constitution … by the people, the only lawful remedies were for the people … them at the next election.

12. A government and Parliament are more likely to use their powers to appoint, … , and threaten judges, in order to reduce them to submission.

13. The notion that the magnates were the King's partners or companions in government … in the traditional feudal relationship between lord and vassal.

14. After Richard III was defeated and killed at Bosworth, Henry VII quickly … a Parliament which … yet another Act of Succession (1485) to resolve 'all ambiguities and questions.'

TASK III a) Match the words on the right with their antonyms on the left:

insignificant

efficient

questionable

superior

separate

official

considerable

harmonious

unimportant

subordinate

informal

important

useless

unfriendly

undisputable

inferior

b) Use the adjectives useless, superior, separate, considerable, superior, harmonious, inferior, superior, harmonious, questionable, superior, insignificant, efficient, superior, official, inferior in the following sentences;

c) Translate the sentences:

1. Juror’s impartiality became … during trial.

2. The orthodox view is that a judgment lays down a rule or principle that is binding on … courts in all cases of the same kind.

3. The King was restrained not “by the … and compulsive part of the laws, but by the exemplary only.”

4. Federal law preempts more exacting state standards, even though both could be complied with and state standards were … with purposes of federal law.

5. Should the legislators “think fit positively to enact a law, there is no power which can control them. If a Court may take it upon them to dispense with, and act in direct violation of a plain and known law of the State, all other Courts either … or … may do the like; and the Legislatures become … .”

6. Parliament was not an institution … from the King; it was convened by the King to advise and assist him in transacting the affairs of the realm, and its statutes were acts of the King and community jointly.

7. As an employer, government is interested in attaining and maintaining full production from its employees in a … environment.

8. In common law cases judges in … courts have … authority to change the law according to their moral convictions.

9. Of course, a change in a fundamental legal rule has to start somewhere: someone has to initiate the requisite change in the … consensus that constitutes it.

10. It seems that, although no person was equal or … to the King, the combined authority of the King and earls was … to the authority of the King alone.

11. The immediate trigger of civil war in 1642 was a dispute between the two Houses of Parliament and the King concerning their respective constitutional authority. Neither the King nor the two Houses would have accepted that the judges had authority to resolve their dispute, since both claimed to possess an authority … to the judges'.

12. 'Nothing can be more scornful and …, than the worthless group  of people, when they are instigated against a king, who is supported by the two branches of the legislature'.

TASK IV Translate the following sentences and define the meanings of the derivatives: confer, conference:

1. So even if we believe that property-holding is a legitimate reason for conferring political power (and many argue that this remains a key assumption of the constitution although not to be found in any legal rule), the modern House of Lords is difficult to explain on this basis.

2. “The word “Parliament” which in origin meant merely a parley or conference entered into official language about the middle of the thirteenth century. It described formal conferences between the King and his officials and a number of the tenants-in-chief summoned for that purpose”.

In Latin confer meant “to compare”, whence the present meaning of the abbreviated form of compare, namely cf. The unabbreviated form confer no longer has this meaning; today it means 1) (intransitively) “to come together to take counsel and exchange views” – to confer with or 2) (transitively) “to bestow, usually from a position of authority) – to confer … on.

TASK V Insert who, which, that into their proper places:

1. The great landowners transmitted to their descendants their property and the titles and power … went with it.

2. Inheritance was originally based upon the feudal system under … every landowner owed allegiance to a superior landlord.

3. There was also an “inner” council of close advisers … developed into the Privy Council.

4. During the medieval period, law-making power lay mainly with the judges … in theory were supposed to declare the general and local customs of the realm (the common law).

5. The word “Parliament” … in origin meant merely a parley or conference entered into official language about the middle of the thirteenth century.

6. The period from the seventeenth to early nineteenth century, during … the Lords still had considerable power and influence, playing a key role in the classical theory of mixed government, a role … has echoes today.

7. It is worthwhile noting that as a result of the reforms in land law … were made in the nineteenth century succession to peerages became governed by different rules from succession to the land itself.

TASK VI Explain the following QUOTATION:

Parliament itself would not exist in its present form had people not defied the law. (Arthur Scargill , in Select Committee on Employment, 2 April 1980)

TEXT 4 THE BRITISH PARLIAMENT TODAY

The system of parliamentary government in the United Kingdom is not based on a written constitution, but is the result of a gradual evolution going back several centuries. The essence of the system today, as it has been for more than two centuries, is that the political leaders of the executive are members of the legislature and are responsible to an elected assembly. The Government's tenure of office depends on the support of a majority in the elected House of Commons, where it has to meet informed and public criticism by an Opposition capable of succeeding it as a government should the electorate so decide.

Modified to suit varying local environments, British parliamentary practice has exercised a profound influence on the development of parliamentary institutions overseas, both in the other countries of the Commonwealth and in developing foreign countries.

The supreme legislative authority in the United Kingdom is the Queen in Parliament, that is to say, the Queen and the two Houses of Parliament — the House of Lords and the elected House of Commons.

The three elements of Parliament are outwardly separate; they are constituted on different principles; they do different work in different places; and they meet together only on occasions of symbolic significance such as the coronation, or the State opening of Parliament when the Commons are summoned by the Queen to the House of Lords. As a law-making organ of State, however, Parliament is a corporate body and with certain exceptions cannot legislate without the concurrence of all its parts.

By the passing of the Parliament Act 1911 the life of a Parliament was fixed at five years (although it may be dissolved and a general election held before the expiry of the legal term). Because it is not subject to the type of legal restraints imposed on the legislatures of countries which have formal written constitutions, Parliament, during this period, is virtually free to legislate as it pleases: generally to make and unmake any law; to legalise past illegalities and make void and punishable what was lawful when done, and thus reverse the decisions of the ordinary law courts; and to destroy firmly established conventions or turn a convention into binding law. If both Houses agreed, it could even prolong its own life beyond the normal period of five years without consulting the electorate. In other words, Parliament is sovereign.

The two-chamber system is an integral part of British parliamentary government. The House of Lords and the House of Commons sit separately and are constituted on entirely different principles, but the process of legislation is the duty of both Houses.

Since the beginning of Parliament, the balance of power between the two Houses has undergone a complete change. The process of development and adaptation, which has been going on by fits and starts for several centuries, has been greatly accelerated during the past 80 years or so. In modern practice the centre of parliamentary power is in the popularly elected House of Commons, but until the twentieth century the Lords' power of veto over measures proposed by the Commons was, theoretically, unlimited. The Parliament Act 1911 curtailed the veto of the Lords to a period of two years for Bills passed by the Commons in three successive sessions (whether of the same Parliament or not), and abolished the veto altogether in connection with Bills dealing exclusively with expenditure or taxation.

These limitations to the powers of the House of Lords (further strengthened by the Parliament Act 1949, which reduced the delaying powers of the Lords from two years to one for Bills passed by the Commons in two successive sessions) are based on the belief that in respect of legislation the principal function of the modern House of Lords is revision and that its object is to complement the House of Commons and not to rival it.

NOTES TO THE TEXT

The Commonwealth – a voluntary organization of autonomous states which had been imperial possessions of Britain. Its head is the reigning British monarch. It was formally established by the Statute of Westminster (1931) and meets frequently to discuss matters of mutual interest and concern. While most states, on independence, chose to become members of the Commonwealth, three have left (Irish Republic, 1949; Pakistan, 1972; Fiji, 1987).

By fits and starts - repeatedly starting and stopping.

LANGUAGE PRACTICE AND COMPREHENSION CHECK:

TASK I a) Use GLOSSARY or a law dictionary to define the following words:

ACTIVE VOCABULARY

executive a, n

authority, n

subject, a, n, v

summon, v

summons, n

legislature, n

legislation, n

legislative, a

legislate, v

void, a

convention, n

legalise, v

binding, a

succeed, v

body, n

successive, a

veto, n,v

succession, n

principal, a, n

principle, n

election, n

b) Use the words legislation, subjects, executive, void, subjects, succession, legislator, legislation, binding, veto, election, void, legislation, principal, summoned, legislatures, legislate, principles, subject, legislative, subjects, elections, to legislate, executive in the following sentences;

c) Translate the sentences:

1. The … branch of government is responsible for effecting and enforcing laws.

2. Legally, therefore, the House of Commons could 'concur with the king and the peers in defeating the … ends for which it is elected and appointed.

3. The predominant view was that abuses of power should be cured by fresh …: they 'believed in the supremacy of Parliament, provided it was truly representative and properly elected'.

4. Tudor Parliaments also dealt with other matters of fundamental constitutional importance, including the … to the throne.

5. The clergy agreed that all future ecclesiastical … would be subject to royal … , and that all existing canons would be reviewed, and … to repeal, by royal authority.

6. The judges of the realm by the fundamental law of England have power to determine which Acts of Parliament are … and which are … .

7. Previously, parliamentary and popular sovereignty had rarely been considered rivals, because of the ancient fictions that Parliament represented all … , and was incapable of acting against their interests.

8. Common lawyers sometimes spoke of statutes contrary to natural law being “…”.

9. Parliament enacted … appropriating the lands of the monasteries. The Statute of Uses (1536) and the Statute of Wills (1540), 'transferring to the King the lands of the lesser monasteries brought about a fundamental change to the law of real property.

10. At a meeting of leading clergy and lawyers in October 1530, a majority advised Henry VIII that Parliament could not authorize the Archbishop of Canterbury to grant Henry's divorce in the face of papal opposition. Later, doubts were raised in Parliament itself as to its competence … with respect to spiritual matters.

11. Although Montague depicts the statute as a piece of conveyancing, rather than as genuine … , on another occasion, he clearly thought of Parliament as a … with respect to rights in land.

12. But decisions about the common good are just what modern … are supposed to make; they, too, are expected to be governed by fundamental, abstract … of political morality that are not judicially enforceable.

13. Were statutes made by the King alone, with the assent of his … , or by the King, Lords, and Commons exercising a shared … power?

14. The Church possessed a divinely ordained power to … in ecclesiastical matters.

15. Parliament derived its authority from the community as a whole, as well as from the King who … it.

16. An Australian judge said in 1862 that the United Kingdom Parliament had 'unlimited' and 'despotic' powers over its … .

17. Dicey argued that in extraordinary situations of internal disorder or war, legal rights must sometimes be violated to protect the public interest from irreparable harm. The … might have to break the law 'for the sake of legality itself', and then seek an Act of Indemnity from Parliament.

18. The electors delegated their share of the sovereign power, other than their power of …, to their representatives 'absolutely and unconditionally.

TASK II a) Find all verbs in passive forms in the text and translate those sentences.

b) Put verbs in brackets in proper passive forms and translate the sentences:

1. The doctrine of parliamentary sovereignty … long (regard) as the most fundamental element of the British Constitution.

2. This doctrine … now (criticise) on historical and philosophical grounds and critics claim that it is a relatively recent invention of academic lawyers that superseded an earlier tradition in which Parliament's authority … (limit) to common law.

3. It … sometimes (argue) that even if the doctrine … well (establish), it remains subject to judicial law-making, precisely because it is a common law rule, established by judicial decisions.

4. But recently the doctrine … (challenge), by judges and academic lawyers in the United Kingdom, New Zealand, and Australia.

5. But no attempt … (make) to defend the doctrine against the proposal that it should … (overturn) by the formal adoption of a judicially enforceable Bill of Rights.

6. It … (say) that Parliament is able to enact or repeal any law whatsoever, and that the courts have no authority to judge statutes invalid for violating either moral or legal principles of any kind.

7. When Parliament's authority … (describe) as 'absolute', it … (treat) as a supreme court from which there was no appeal, rather than as a sovereign legislature in anything like the modern sense of the term.

8. Sir Stephen Sedley has suggested that the doctrine of parliamentary sovereignty … (replace) by “a new and still emerging constitutional paradigm”, consisting of 'a bi-polar sovereignty of the Crown in Parliament and the Crown in the courts

9. Judges can change the common law, but because it is subordinate to statute law, their decisions are always liable (overturn) by Parliament.

10. Parliament … (entitle) to override much of the common law, but not its most fundamental principles, because they are the ultimate source of its own authority.

11. The argument that the doctrine of parliamentary sovereignty is a matter of common law, dependent on judicial recognition and is … (find) in judicial decisions … frequently (affirm) by judges since 1871, but it … rarely (mention) in judgments before then.

12. Two mistakes … sometimes (make) when parliamentary sovereignty … (think) to rest on judicial acceptance alone, rather than a consensus among senior legal officials in general.

13. It … sometimes (argue) that Parliament's legal authority to alter a truly fundamental constitutional principle, or to enact a very unjust law, … not yet … directly (test) in the courts.

14. The Human Rights Act 1998 … (criticize) for providing a weak protection of human rights.

15. Dicey defines 'law' as 'any rule which … (enforce) by the courts'.

16. The principle then of Parliamentary sovereignty may, looked at from its positive side, … thus (describe): Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, … (obey) by the courts.

17. A legislature is sovereign provided that its law-making authority … (not limit) in any substantive respect, even if it … (bind) to exercise its authority according to requirements of a purely procedural or formal kind.

TASK III Explain or translate the following phrases:

1. British parliamentary practice;

2. To meet informed and public criticism by an Opposition;

3. The State opening of Parliament

4. Before the expiry of the legal term;

5. To legalise past illegalities;

6. In two/three successive sessions;

7. The delaying powers of the Lords.

TASK IV Use the words from Active Vocabulary to complete the following sentences:

1. There are plans to … against computer-related crimes,

2. Two … sessions of Parliament adopted new laws on terrorism.

3. The … is an institution that has power to make or change laws.

4. The Prince of Wales is to … the Sovereign when he or she dies.

5. The part of the government responsible for making sure that new laws are done is called the … .

6. The knights were first … by King Richard I.

7. They all were served … .

8. When a contract has no legal effect it is called null and … .

9. The decisions of the House of Lords are … on lower courts.

10. The president … a new tax increase on gasoline.

TASK V Translate the following sentences paying attention to the meanings of the word "authority/authorities":

1. Jurisdiction has been defined as the authority of the court to hear and determine cases.

2. Certain legal writers hold that there is no world authority with power to enforce the rules of laws, and that, as public international law is incompatible with national sovereignty, the essential characteristics of law are absent.

3. Administrative law determines the legal rights of a private citizen whose house a local authority intends to acquire compulsorily.

4. There are over 300.000 reported decisions which lawyers have to study in order to ascertain what the law is, and to unearth and cite some of them as what is called "authority" in the cases they have to conduct.

5. Police officers are not allowed, in the absence of written authority, to search a person before arrest.

6. Education for those in custody in England and Wales is provided by local education authorities.

7. The validity of an Act of Parliament that has been duly passed legally promulgated and published by the proper authority cannot be disputed in the law courts.

8. The House of Lords also exercises judicial authority over claims of peerage.

9. Members are usually appointed by the minister concerned with the subject, but other authorities (for instance, the Crown and the Lord Chancellor) have the power of appointment.

10. The police were acting on the authority of the City Council.

TASK VI Give English equivalents of the word "body" in the following sentences:

1. The Council is a governing body of the town.

2. Government is a public body.

3. There is now a substantial body of opinion that opposes this law.

4. The House of Commons is a legislative body.

5. The murderer buried the dead body in the garden.

6. The main body of the document must be studied thoroughly.

7. A corporate body has legal personality.

TASK VII a) Read the text and discuss advantages and disadvantages of secondary legislation; b) What body scrutinises secondary legislation in your country?

Advantages of secondary legislation

It is important to remember the advantages which Government, Parliament and society derive from the existence of delegated powers. Ministers and other statutory authorities are able to legislate on detailed points within the limits of the original delegated power. In consequence:

• Bills can be restricted to their essentials. There is a saving in Parliamentary time, Parliament can concentrate on the key principles underlying legislation, and Acts can be better understood by those who may be affected;

• there is no need to wait until the fine detail of every practical implication of a policy has been worked out before legislating. Such details can be filled in later;

• there is less need for corrective amendments to primary legislation. Secondary legislation can be amended or replaced much more easily than primary legislation;

• it allows for flexibility to adapt to changing circumstances over time, without the delay which would result from having to wait for a suitable Bill; and

• it is easier to tailor the legislative requirements in the parent Act to the different circumstances which may apply in particular cases.

In addition, the operation of the Human Rights Act may well reveal that much potential incompatibility between the European Convention on Human Rights (ECHR) and United Kingdom law arises from secondary legislation. The Delegated Powers and Deregulation Committee Memorandum drew attention to this point. It argued that scrutiny of draft secondary legislation on ‘compatibility’ grounds would be highly desirable and “could be a very considerable task”.

Obstacles to effective scrutiny

Parliament does have opportunities to consider the merits of those Statutory Instruments which are subject to affirmative or negative resolution procedure, but there remain a number of obstacles to effective scrutiny.

Statutory Instruments cannot be amended. Affirmative resolution instruments can only be approved or rejected. As they rarely raise major issues of principle, there is a natural reluctance to go to the length of rejecting the whole Instrument when most of it gives rise to no cause for concern.

There is no realistic prospect of a Statutory Instrument being defeated in the House of Commons. Although in 1994 the House of Lords (on a motion from Lord Simon of Glaisdale) asserted its “unfettered freedom to vote on any subordinate legislation”, in practice there has (so far) been no serious challenge since 1968 to the convention that the House of Lords does not reject Statutory Instruments. Nevertheless, members of the House of Lords have found various ways in which to indicate their concern about particular Statutory Instruments. These have occasionally resulted in Ministers adjusting their proposals.

Very little time is made available for debates on Statutory Instruments in the House of Commons. Affirmative resolution instruments are routinely referred to Standing Committees, rather than debated on the floor of the House. The Committees cannot consider amendments or debate substantive motions: They are required to report that they have ‘considered’ the Statutory Instrument, which is then moved formally in the House. Negative resolution instruments may be ‘prayed against’ within 40 sitting days but only a minority of those ‘prayed against’ are referred (by agreement between the Party Whips) to a Standing Committee, where in any case the same conditions apply. The pressure of time is less acute in the House of Lords. Affirmative resolution instruments and all ‘prayers’ against negative resolution instruments are debated, and all are taken on the floor of the House; but they have accounted for only about 5 per cent of the time of the House in recent years.

Negative resolution instruments usually come into effect about 40 days after being made and laid before Parliament. Members may therefore feel that there is little point in seeking to negate something which has already come into effect, especially given all the attendant practical and legal difficulties.

The sheer volume of Statutory Instruments and their level of detail. This makes it difficult for any individual MP or member of the second chamber to get to grips with the substantive issues.

TASK VIII

1. Read the text, determine the key message in each paragraph.

2. Summarise the text in 150-200 words.

A. The doctrine of parliamentary sovereignty has long been regarded as the most fundamental element of the British Constitution. In his classic exposition of the doctrine, A. V. Dicey described it as 'the dominant characteristic of our political institutions', 'the very keystone of the law of the constitution'. It is said that Parliament is able to enact or repeal any law whatsoever, and that the courts have no authority to judge statutes invalid for violating either moral or legal principles of any kind. Consequently, there are no fundamental constitutional laws that Parliament cannot change, other than the doctrine of parliamentary sovereignty itself. As a political scientist has put it, 'there is a sense in which the British Constitution can be summed up in eight words: What the Queen in Parliament enacts is law'.

B. Until recently, there has been little doubt about the core of the doctrine, that the courts have no legal authority to invalidate statutes on the ground that they are contrary to fundamental moral or legal principles. As a leading critic of the doctrine concedes, among English lawyers 'it is hard to question Dicey's doctrine without appearing to lose touch with practical reality. Until very recently, it was almost unthinkable that the courts would ever refuse to apply an Act of Parliament.'

C. But recently the doctrine has been challenged, by judges and academic lawyers in the United Kingdom, New Zealand, and Australia. Sir Robin Cooke, the President of the New Zealand Court of Appeal, was the first eminent judge to do so publicly. After initially expressing 'reservations' about the sovereignty of the New Zealand Parliament, he came to the view that 'some common law rights presumably lie so deep that even Parliament could not override them'. Since then, some other judges in New Zealand, Australia, and Britain have either endorsed that view, or agreed that it is arguable.

D. Recently, the High Court of Australia expressly deferred judgment on the issue: whether the exercise of legislative power by a State Parliament 'is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law is another question which we need not explore'. In Britain, several senior judges have explored the question, in extra-judicial speeches. The Master of the Rolls, Lord Woolf of Barnes, has asserted that there are 'limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold'. Sir John Laws has argued that true sovereignty belongs not to Parliament, but to the 'unwritten constitution', which includes fundamental principles, such as democracy and freedom of expression, that the judiciary can enforce, if necessary, by invalidating statutes. Without going that far, Sir Stephen Sedley has suggested that the doctrine of parliamentary sovereignty has been replaced by 'a new and still emerging constitutional paradigm', consisting of 'a bi-polar sovereignty of the Crown in Parliament and the Crown in the courts.

E. Growing doubt about parliamentary sovereignty among New Zealand, Australian, and British judges has coincided with increasing judicial activism in all three countries. In public law, this has mostly involved the invalidation of actions of the executive government, but also, in Australia, the purported discovery of 'implied rights' in the written Constitution.

F. For causes that are obscure, an increase in both the ability and willingness of judges to control the other organs of government appears to be a worldwide phenomenon. Despite occasional complaints, parliaments and executives in Britain, Australia, and New Zealand have generally acquiesced in, or even tacitly approved of, the expansion of judicial review of executive actions, which does not fundamentally threaten their powers as long as the parliaments retain their capacity to control or even reverse it.16 But that depends on continued acceptance of the doctrine of parliamentary sovereignty. When judges question the doctrine, the potential threat posed by judicial activism to the powers of the legislature and executive is much more serious.

G. What is at stake is the location of ultimate decision-making authority the right to the 'final word' in a legal system. If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe unwritten rights, they would be claiming that ultimate authority for themselves. In settling disagreements about what fundamental rights people have, and whether particular legislation is consistent with them, the judges' word rather than Parliament's would be final. Since virtually all significant moral and political controversies in contemporary Western societies involve disagreements about rights, this would amount to a massive transfer of political power from parliaments to judges. Moreover, it would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum. It is no wonder that the elected branches of government regard that prospect with apprehension.

H. This apprehension has been voiced in the United Kingdom Parliament. In 1996, Lord Irvine of Lairg, at that time the Shadow Lord Chancellor, initiated a debate in the House of Lords concerning the relationship between the three branches of government. In the presence of Lord Woolf and Lord Cooke of Thorndon (formerly Sir Robin Cooke of New Zealand), he criticized statements by senior judges challenging the doctrine of parliamentary sovereignty as 'unwise', and disparaged the alternative they advocated as 'obsolete'. The Lord Chancellor, Lord Mackay, and Lord Wilberforce also strongly affirmed Parliament's sovereignty. When the Human Rights Bill was introduced into the House of Lords in 1997, the accompanying White Paper stated that a power to invalidate Acts of Parliament is something 'which under our present constitutional arrangements they [the judges] do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament. There is no evidence to suggest that they desire this power, nor that the public wish them to have it.'

I. The doubts expressed by judges such as Lord Woolf and Sir Robin Cooke are strongly supported and, no doubt, partly inspired by the work of some academic lawyers who have criticized the doctrine of parliamentary sovereignty on both historical and philosophical grounds. 'Modern assertions of unlimited sovereignty', says one leading critic, 'rest on a misunderstanding of constitutional history'. The main historical criticism is that the doctrine is a relatively recent invention of academic lawyers, particularly Sir William Blackstone, John Austin, and Dicey, influenced by the tradition of legal positivism founded by Thomas Hobbes, who erroneously argued that there is necessarily a sovereign law-maker at the foundation of every legal system. The doctrine was successfully foisted upon a gullible legal profession, which abandoned the traditional common law understanding that law-making was subject to fundamental legal principles. Or so it is alleged, by critics who disparage the doctrine as an authoritarian, legal positivist 'dogma' that misconceives the real foundations of the British constitution.

J. The critics attempt to clarify those real foundations through philosophical as well as historical analysis. The doctrine of parliamentary sovereignty maintains that Parliament has ultimate authority to determine what the law shall be. It is the responsibility of judges to declare what the law is, but in doing so, they are bound to accept every Act of Parliament as valid law. They can change the common law, but because it is subordinate to statute law, their decisions are always liable to be overturned by Parliament. The critics reject this doctrine as a misunderstanding of the relationship that must logically hold between statutory and common law. They argue that since it is the responsibility of judges to declare what the law is, the extent of Parliament's lawful authority to legislate is necessarily a matter for the judges to determine. In other words, it is necessarily a matter of common law, which is a body of judicial decisions based on fundamental principles such as justice and the rule of law. It follows that Parliament is entitled to override much of the common law, but not its most fundamental principles, because they are the ultimate source of its own authority.

TEXT 5 The Composition of Parliament