Public Law Essay Example | Topics and Well Written Essays - 1750 words - 1

Public Law - Essay Example The principle of Parliamentary sovereignty formulated by Dicey 1 states that the English Constitution confers power to the Parliament both to â€Å"make or unmake any law† and that no other person or body recognized by the English law has power to â€Å"set aside† or â€Å"override† â€Å"the legislation of Parliament†2 The judges have power to make law known as common law though the Parliament can pass legislation to nullify a particular common law which the judges are expected to follow. In fact according to Dicey, judges as handmaidens of the Parliament are expected to expound, explain and â€Å"give effect to the statutes† they come across in their discourse. This principle was confirmed in British Railways Board v Picklin.3 Judges as guardians of common law Notwithstanding this principle, judges as the guardians of common law retain the power of statutory interpretation to ensure that the common law constitutional principles are not eroded by t he Parliamentary legislation. It follows therefore that Parliament does not have an unfettered right to make laws foolishly or unreasonably contrary to the common law principles. However, this presumption is so broad that its weight varies with the specific common law right in issue. European Convention on Human Rights reflect some of these principles. In R v Secretary of State for State for the Home Department ex p. Simms 4 , the issue involved challenge of blanket ban on permitting prisoners to meet journalists to protest their innocence. This was held by the House of Lords as a breach of the common law right giving freedom of expression. Although the prison rules permitted such a policy of blanket ban, the House of Lords found it necessary to read down the rules to make the policy unlawful. Lord Hoffman though agreed with the Parliamentary Sovereignty that gives it a right to pass legislation contrary to fundamental principles of human rights and that The Human Rights Act 1998 ne ed not absolve Parliament of this power, it is fraught with political cost. He further states that fundamental rights cannot be denied by means of general or ambiguous words. This might have escaped unnoticed in the democratic process of law making. As such when there is no express provision, courts find it necessary to presume such general words are also subject to the fundamental rights of individuals. Therefore, courts while in agreement with the sovereignty of Parliament, apply these principles universally applicable in different countries where the parliamentary power is limited by the constitution.5 Thus several case laws have recognized some of the fundamental rights. For example, unhindered access to the courts vide R v Lord Chancellor ex-parte Witham 6 and R v Secretary of State for the Home Department ex-parte Saleem7. Secondly, right against punishment through a retrospective legislation as held in Waddington v Miah 8 . Thirdly, right against increase of penalties and rig ht of confidential communication with legal advisor in R v Secretary of State for the Home Department ex-parte Pierson 9 and R v (On the Application of Daly) v SSHD 10 respectively. Lord Hoffman drives home the point that in giving effect to what the Parliament must have intended, the courts rather uphold the supremacy of the