Parliamentary Sovereignty And Constitution

I started the research process for the presentation by identifying the relevant keywords stated in the question, which would later help me to identify appropriate resources. The two keywords identified were “parliamentary sovereignty” and “UK constitution”. After identifying those keywords I set out to find and read through the relevant chapters in two constitutional law textbooks. When selecting the textbooks I took into account course recommendations and reached for the latest available copies of the textbooks to make sure that the information I was reading was current and relevant. I began my reading with Part I, chapters “1. The meaning of a constitution” and “4. The legislative supremacy of Parliament” from the first textbook by Neil Papworth. These chapters provided me with a basic level of understanding of the nature of the UK’s constitution as well as the doctrine of parliamentary supremacy. They also brought to my attention key cases and statute sections related to this topic. However, the chapters did not include sufficiently detailed information on some of the key cases, such as extracts from the judgments and thorough discussions of the judges’ reasoning. In order to expand my understanding of this area of law I reached for the second textbook by Brian Thompson and Michael Gordon. I read and analysed chapter 2 – “The legislative sovereignty of Parliament” which contained an extensive discussion of the various factors that affect the sovereignty of the UK’s parliament, such as the implied repeal doctrine, the impact of the Human Rights Act 1998 and the relationship between the UK and the EU. This textbook was particularly useful in helping me to better understand the key cases and statute sections which provide an insight into the extent to which parliamentary supremacy has been maintained in the UK in the context of our evolving constitution. The key statute sections identified were as follows: ss. 3, 4 and 10 of the Human Rights Act 1998, ss. 1 and 2 of the European Communities Act 1972, the European Convention on Human Rights, and the European Union (Withdrawal) Act 2018. I have also identified the following cases as being relevant to the topic: Attorney-General v Jackson, Burmah Oil Company v Lord Advocate, R (Nicklinson) v Ministry of Justice, Ghaidan v Godin-Mendoza, R v A (No 2), and Thoburn v Sunderland City Council. Subsequently, I retrieved the above statutes from the legislation.gov.uk website and read as well as analysed the wording of the above sections. I then used Westlaw to retrieve the reports for the above cases and read as well as analysed the reports. This enabled me to become even more familiar with the primary legal sources related to this topic. It also helped me to begin formulating an argument in an answer to the posed question. In order to make sure that my argument was valid, I set out to identify, read and analyse relevant journal articles from peer-reviewed journals. My initial searches on Westlaw in which I used terms “parliamentary sovereignty” or “parliamentary supremacy” in the title or keywords search boxes rendered very few articles (up to 20 in both cases), which were either not relevant or not available in their full version on Westlaw. Therefore, I decided to expand my search by using words “parliamentary”, “supremacy” and “sovereignty” together in the “Free Text” field. I then narrowed down the search results by setting parameters on Westlaw in relation to the Topic (“Public and constitutional law”), Jurisdiction (“UK”), Availability (“Full text available”) and Document type (“Article”). This helped to narrow down the number of articles to 194 and allowed me to review the abstracts of all articles and identify four articles that were relevant to the topic of the presentation. The criteria used for distinguishing between relevant and irrelevant articles was the scope of the article. Most of the articles rendered by the search were not entirely focused on the doctrine of parliamentary supremacy, but merely mentioned is as one of the issues discussed. However, the four articles which were selected for the presentation focused extensively on discussing the doctrine. Each of those articles provided a slightly different view of the relationship between parliamentary sovereignty and the UK constitution, which helped me to shape my own argument for the presentation. In conclusion, the primary resources identified for the presentation consisted of case law and statutes, whereas the secondary resources included textbooks and journal articles. The resources were identified based on the relevant keywords included in the question as well as their relevance to the topic of the presentation. By analysing the resources, I was able to formulate the argument that the ultimate parliamentary supremacy was preserved in the UK despite major constitutional changes, e.g. in the form of the UK’s accession to the European Union.

Presentation

Introduction

The doctrine of parliamentary supremacy proposes that the parliament is a supreme law-making body that can pass any laws it wishes, and no other institution or person can override the statutes passed by the parliament. However, Lord Steyn proposed in Attorney-General v Jackson that this traditional account of parliamentary supremacy is no longer adequate, given the changing nature of the UK’s constitution. Nevertheless, this presentation will demonstrate arguments in support of the statement that the ultimate supremacy of the UK parliament continues to be preserved despite important constitutional changes in the country, such as its accession to the European Union. The arguments will be presented in the following order: (a) Impact of the implied repeal doctrine, (b) Interpretation of legislation by UK courts, (c) Judicial review of legislation by UK courts and (d) Relationship between parliamentary supremacy and the UK’s relationship with the EU.

Implied repeal doctrine

The doctrine of implied repeal is often described as a doctrine that helps to ensure the supremacy of the UK parliament. It proposes that existing statutes that conflict with newly passed Acts of Parliament are automatically repealed at the time the new Act begins to operate. As such, the doctrine ensures that every subsequent Parliament is allowed to pass any laws is pleases, in line with the principle of parliamentary supremacy. However, the application of the doctrine has been limited by certain decisions of the courts. For instance, in Thoburn v Sunderland City Council the court held that certain statutes (such as the European Communities Act (“ECA”) 1972) should be recognised as having ‘constitutional importance’, and that such statutes could not be superseded through implied repeal, but rather had to be expressly repealed. But the decision in the case of Thoburn should not be seen as infringing the doctrine of parliamentary sovereignty, because it does not preclude the subsequent parliaments from amending the law, but merely specifies the manner in which it should be done in relation to certain types of legislation. The courts have over the years recognised the unlimited law-making power of the parliament in many cases. For example, in Burmah Oil Company v Lord Advocate the court held that the parliament had the power to pass any legislation it wished to, including statutes with retrospective effect. Therefore, despite the constitutional development introduced in Thoburn, the parliament maintained its unlimited law-making power.

Interpretation of legislation by UK courts

One could argue that apart from the restrictions imposed on parliamentary sovereignty in the UK by the case of Thoburn, the parliament’s law-making power was limited to an extent by the passing of certain statutes which shaped the nature of the country’s constitution. For example, s. 3 of the Human Rights Act 1998 imposed on the UK courts an obligation to interpret Acts of Parliament as compatible with the European Convention on Human Rights (“ECHR”). Interestingly, the obligation applies also in cases where the statutory wording is not unclear. For example, in Ghaidan v Godin-Mendoza the court interpreted the following wording of a statute: “a person who was living with the original tenant as his or her wife or husband” as including same-sex partners in order to avoid violation of the right to privacy and the right to freedom from discrimination embedded in the ECHR, even though this was clearly against the parliament’s intention. However, the constitutional change was achieved through the introduction of s. 3 does not represent an infringement of the ultimate supremacy of the parliament in the UK, because the parliament remains free to repeal the HRA 1998 and remove the obligation, even if this could only be achieved through express repeal, as per the decision in Thoburn.

Judicial review of legislation by UK courts

A further change of constitutional importance was introduced in the UK through the passing of s. 4 of the HRA 1998, which grants the courts the power to conduct a review of the legislation passed by the parliament in order to ensure its compatibility with the ECHR. In particular, s. 4(2) allows the courts to issue a ‘declaration of incompatibility’ with regards to an Act of Parliament that infringes the ECHR. The introduction of s. 4 could be perceived as an infringement of the doctrine of parliamentary supremacy at first sight. However, a detailed examination reveals that the parliament’s power to pass or amend legislation remains unlimited despite the introduction of s. 4, because a declaration of incompatibility issued by the UK courts does not affect the validity of the Act with regards to which it is issued. The only real impact of such a declaration is that the parliament is entitled to amend the infringing Act through a ‘fast track’ procedure, should it wish to do so. In addition, the courts appear to be rather hesitant in issuing declarations of incompatibility, which were in the past called by the judges “a measure of last resort”. Equally, in cases involving social policy issues, such as dilemmas related to the right to die, the courts have in the past refused altogether to issue declarations under s. 4. As such, despite the major constitutional impact of s. 4 of the HRA 1998, the passing of this section had little impact on the ultimate supremacy of the UK parliament.

Parliamentary supremacy and UK’s relationship with the EU

As mentioned earlier with regards to the ECA 1972, the HRA 1998 and the ECHR, the UK’s accession to the EU constituted a major constitutional change in the country. However, the impact of this relationship on the ultimate supremacy of the UK parliament was not equally significant. In particular, despite having to take into consideration the legislative framework of the EU when passing statutes, the UK maintained a safe distance from the EU through various derogations and opt-outs to EU treaties, which to a large extent enabled the parliament to continue fulfilling its own agenda with regards to legislation. Equally, throughout the UK’s membership in the EU the UK parliament has been empowered to pass legislation withdrawing the country from the EU and repealing the above Acts which constituted certain impositions on its law-making ability. This can be evidenced by the passing of s. 1 of the European Union (Withdrawal) Act (“EUWA”) 2018 which repeals the ECA 1972 at the time when the UK will leave the EU. Moreover, s. 2 of the 2018 Act integrates into the UK law any domestic statutes derived from the EU legislation. Even though the passing of this section could be interpreted as an imposition on the UK parliament’s sovereignty, the section itself was passed by the parliament as a choice, in order to avoid confusion following Brexit. Therefore, parliamentary sovereignty was in fact preserved. As such, by passing the 2018 Act the parliament provided the final proof that it has maintained its ultimate supremacy despite the UK’s membership in the EU.

Conclusion

As explained earlier in this presentation, over the years there were many potential threats to the sovereignty of the UK parliament instituted by several constitutional changes such as the passing of the ECA 1972 and the HRA 1998 or the decision in the case of Thoburn. However, despite those changes the ultimate supremacy of the UK parliament was preserved, not least because the parliament maintained its power to repeal any of those Acts at any time, as demonstrated by the passing of the EUWA 2018.