About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

26 Liverpool L. Rev. 1 (2005)

handle is hein.journals/lvplr26 and id is 1 raw text is: Liverpool Law Review (2005) 26: 1-12 © Springer 2005 DOI: 10.1007/s10991-005-3774-6 JOHN MCGARRY* PARLIAMENTARY SOVEREIGNTY, JUDGES AND THE ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS ETC.) BILL ABSTRACT. It is an aspect of the traditional view of Parliamentary sovereignty that the courts will not rule as invalid an Act of Parliament, or any part of an Act, which has been passed in the correct fashion. This view has been questioned by some, including some senior judges. They argue that certain limits on the legislative com- petence of Parliament are necessary to protect those fundamental values that are essential in a democracy. Many who argue for limits to the legislative competence of Parliament also suggest that the relationship between the different arms of the government is one based on mutual respect, restraint and co-operation. If Parliament legislates in such a way as to breach this mutuality, and in a way that will cause conflict between Parliament and the courts, then, it is suggested, the courts may reply in kind by holding that legislation, or part of it, invalid. It is argued here that in the recent quarrel between the Government and the courts over the ouster clause con- tained in the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003, the Government was encouraged to undertake to amend the legislation as a result, at least in part, of intimations by senior judges that the clause could be overruled by the courts. This demonstrates, it is argued, that both sides believed this threat to have some force. KEY WORDS: judges, ouster clauses, Parliamentary sovereignty INTRODUCTION It has been written that Parliamentary sovereignty is the dominant characteristic of our political institutions.1 It is an aspect of the traditional view of Parliamentary sovereignty that the courts can- not overrule an Act of Parliament, or any part of an Act, that has been passed in the correct fashion. This traditional view must, of * Lecturer in Law, Department of Law and Criminology, Edge Hill College of Higher Education. Email: mcgarryj@edgehill.ac.uk. I am grateful to Kas Wachala and Maggi Eastwood for their comments on earlier drafts of this article. Any errors remain my own. A.V.Dicey, Introduction to the Study of the Law of the Constitution (1898), 10th ed. (London: Macmillan, 1959) p.39.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most