Parliamentary Sovereignty Is An Outdated Concept And Is No Longer Relevant In Terms Of The Constitution

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Parliamentary sovereignty has often been regarded as a fundamental principle of the UK’s constitution. This essay would be following the assertion that parliamentary sovereignty is outdated and irrelevant. Experts have argued for the limitations of parliamentary sovereignty to be recognized. This essay aims to outline the changes in the UK’s constitution and highlight the limitations on the application of parliamentary sovereignty in the UK, in particular the UK’s entry into the European Union (EU) in (1973), the passing of the Human Rights Act (1998, HRA) and the devolution of powers. It is important to acknowledge the legal limitations of parliamentary sovereignty so as to understand how it has caused a shift of power away from parliament.

Parliamentary sovereignty is a legal doctrine of the constitution of the UK, which makes parliament the highest legal authority. [1] The purpose of parliamentary sovereignty is to grant legislative supremacy to the UK parliament over other government bodies. The role of parliament is to scrutinize the work of the government and to pass laws through acts of parliament. [2] Albert Venn Dicey outlined the principles of parliamentary sovereignty and established the three main laws of parliamentary supremacy. Under the English constitution, Parliament has the right to make unmake or change any laws and no person or body recognized under UK law has the right to override or set aside any legislations of parliament, and no parliament can bind a future parliament nor limit the discretion of a future parliament. [3] According to Dicey, parliamentary sovereignty was the “very keystone of the law of the constitution as well as the dominant characteristics of our political institutions”. [4] [1: Parliament’s Authority, accessed 28 March 2019.] [2: What is the role of Parliament? < https://www.parliament.uk/about/how/role/> Accessed 28 March 2019.] [3: Alison L Young: Parliamentary Sovereignty and the Human Rights Act (Hart Publishing 2009)] [4: Ian Ward: The English Constitution (Hart Publishing 2004) 27]

The first aspect of limitation would be the UK’s entry into the European Union in 1973. By joining the EU, the UK submitted to EU law as the European Court of Justice imposed an obligation making it imperative for all member states and their parliaments to give up their sovereignty by complying and applying EU law. [5] In 1972, the UK passed the European Communities Act. This act gave direct effect and made EU law binding and supreme over the UK’S national laws, and courts were compelled to strike down any legislation of national law that is in conflict with EU law. [6] Article 189 of the Treaty of Rome states that EU law is given direct effect and primacy and is directly applicable and enforceable in courts of all member states, prevailing over their constitutional laws. [7] This principle of supremacy is upheld in the case of Flaminio Costa v ENEL, where European Community laws were established to be supreme over the national laws of member states. The ECJ held that Article 189 would be inconsequential if EC laws were not supreme over conflicting national laws, as the functionality and application of the ECA (1972) would be compromised if precedence was not given over domestic legislation. [8] In the case of Factortame V Secretary of State of Transport, when the Merchant Shipping Act (1988) was found to be in conflict with EC laws, supremacy was given to EC laws over the UK’s national laws and when the House of Lords referred the matter to the ECJ, the ECJ held that they were inclined to disregard and restrict parliament’s legislation when it was found to be in conflict with EC law. [9]Therefore, this case has established the UK’s subordination to EU law and reiterates how parliament sovereignty is outdated as English courts are striking down primary legislation that is deemed to be incompatible with EU law. [5: Dawn Oliver: Constitutional Reform In the UK (Oxford University press 2003)] [6: The 1972 European Communities Act. < https://www.instituteforgovernment.org.uk/explainers/1972-european-communities-act> accessed 28 March 2019] [7: EU case law outline. accessed 28 March 2019] [8: Flaminio Costa v. ENEL (1964) ECR 585, 593, Case 6/64] [9: R v Secretary of State for Transport, ex parte Factortame ECJ (1990) 2 Lloyds Rep 351, [1990] 3 CMLR 1, C-213/89 (Factortame No.1)]

However, it is argued by some that parliament is said to be supreme because the UK can withdraw from the EU at any time should they wish to under article 50 of the Treaty on European Union. [10] Member states can withdraw from the union should they decide to in accordance with the constitutional requirements, where member states must inform the EU of its intention of leaving and arrangements would be made for their withdrawal from the Union. [11] This is evident in Brexit where a withdrawal agreement has been legislated between the UK and the EU, with the assumption that the UK will leave the EU on the stipulated exit day. [12] This argument fails to consider that, under the EU Withdrawal Act (2018), EU law would be copied over and would continue to be applied after Brexit under a new category of law known as “EU retained law” so as to avoid any lapses in legislation. [13] Therefore, EU law still remains sovereign over parliament in the UK. [10: Article 50 Treaty On European Union < https://eur-lex.europa.eu/eli/treaty/teu_2012/art_50/oj> accessed 28 March 2019] [11: Article 50 Treaty On European Union < https://eur-lex.europa.eu/eli/treaty/teu_2012/art_50/oj> accessed 28 March 2019] [12: Graeme Cowie: Legislating for transition, a stay or execution for the European Communities Act (2018) accessed 28 March 2019.] [13: Graeme Cowie: The status of ‘Retained EU Law” accessed 28 March 2019.]

The second aspect which limited the sovereignty of parliament is the Human Rights Act of 1998. The HRA (1998) was first introduced in the House of Commons after the 1997 UK general election, where precedence was given to the HRA (1998) over constitutional laws. [14] The main aim of the HRA (1998) was to translate the European Convention on Human Rights into legal wording and to make it directly applicable as a provision of law in the UK. [15] The HRA (1998) made it obligatory for government ministers to uphold the rights contained in the ECHR and ensure that any proposed legislation was made compatible with the ECHR. [16] Under S3 of the HRA (1998), legislations of the UK must be interpreted to be made consistent with convention rights. According to the Lord Chancellor, courts are obligated to act compatibly with the convention when deciding on cases involving public authorities but also when developing common law. [17] S2 of the HRA (1998) governs the rule of compatible interpretation, which has limited parliamentary sovereignty as courts are required to interpret legislation and give precedence to the HRA (1998) over any other act. [18] [14: Dawn Oliver: Constitutional Reform In the UK (Oxford University press 2003)] [15: Frederick Cowell: Critically Examining the Case Against the 1998 Human Rights Act < https://books.google.com.sg/books?id=zWA1DwAAQBAJ&pg=PT104&lpg=PT104&dq=case+of+Bamforth+1998&source=bl&ots=osy24GQQwV&sig=ACfU3U3mypNxJwzPQsAwX6H4__zsO2BMoQ&hl=en&sa=X&ved=2ahUKEwi07OWp-sDhAhXS6nMBHcypClwQ6AEwDXoECAYQAQ#v=onepage&q=case%20of%20Bamforth%201998&f=false > accessed 28 March 2019. ] [16: Frederick Cowell: Critically Examining the Case Against the 1998 Human Rights Act < https://books.google.com.sg/books?id=zWA1DwAAQBAJ&pg=PT104&lpg=PT104&dq=case+of+Bamforth+1998&source=bl&ots=osy24GQQwV&sig=ACfU3U3mypNxJwzPQsAwX6H4__zsO2BMoQ&hl=en&sa=X&ved=2ahUKEwi07OWp-sDhAhXS6nMBHcypClwQ6AEwDXoECAYQAQ#v=onepage&q=case%20of%20Bamforth%201998&f=false> accessed 28 March 2019.] [17: K. D. Ewing: The Human Rights Act and Parliamentary Democracy < https://www.jstor.org/stable/1097075?read-now=1&seq=11#page_scan_tab_contents> accessed 28 March 2019.] [18: Dawn Oliver: Constitutional Reform in the UK (Oxford University Press 2003)]

S4(2) of the HRA (1998) states that high courts or above can make a declaration of incompatibility, followed by a remedial order should there be a conflict between other acts and the HRA (1998). [19] A remedial order gives ministers wide-ranging power to override legislation that is deemed incompatible with convention rights by enforcing the Henry VIII clause to introduce a fast-track secondary legislation under S10 of the HRA (1998) to remove any incompatibilities. [20] This provision negates the principle of parliamentary sovereignty as no one can set aside or override any legislation passed by parliament. In the case of Steinfeld & Keidan V Secretary Of State For International Development, the UK Supreme Court made a declaration of incompatibility under S4 of the HRA (1998), as S1 and S3 of the Civil Partnerships Act (2004) was incompatible when taken into account with the provisions of article 14 of the ECHR and Article 8 of the convention. [21] This incompatibility negates the doctrine of parliamentary sovereignty as precedence is given to the HRA and ECHR, demonstrating that parliament is no longer the supreme authority. [19: Human Rights Act (1998) S4. accessed 28 March 2019.] [20: Dawn Oliver: Constitutional Reform in the UK (Oxford University Press 2003)] [21: Steinfeld & Keidan V Secretary Of State For International Development [2018] UKSC 32 Supreme Court (England and Wales)]

Some may criticize the HRA that courts are only to take into account the decisions of the ECHR, where they do not need to certainly follow them. This is highlighted in the case of Doherty & Others V Birmingham City Council where the House of Lords refused to follow the judgment held by the ECHR on the grounds that by following such a decision it was uncertain to acquire a comprehensible direction from this judgment. [22] Despite this argument, it is rare for courts to not follow the ECHR, as, under S3 of the HRA (1998), courts have to interpret legislation and should by far as possible give precedence to convention rights.[23] Therefore, the rights contained in the ECHR are sovereign over parliament in terms of hierarchical authority. [22: Doherty (Fc) and Others V Birmingham City Council [2008] UKHL 57] [23: Alison L Young: Parliamentary Sovereignty and the Human Rights Act (Hart Publishing 2009)]

The third aspect of the limitations on parliamentary sovereignty is the devolution of legislative power to Union state members, namely Scotland, Wales, and Northern Ireland. Devolution is the process of having government powers being transferred to other regional bodies. In 1976, the Scotland and Wales Bill was introduced in the House of Commons which granted legislative powers to the Scottish Parliament and Executive powers to the Welsh Assembly. [24] In 1947, the Scottish National Assembly disputed against the centralization processes adopted by the Labour government and requested for a separate Scottish Parliament away from the Westminster Parliament. [25] During the establishment period of the Scottish parliament and Welsh assembly, the Westminster parliament has been handing over substantial powers which have enabled administrations of devolved states to rebuild the management of their countries. In the case of MacCormick V Lord Advocate, Lord cooper held that the principle of parliamentary sovereignty is a distinct English principle that has no part in the constitutional laws of Scotland. [26] Devolution has imposed a severe limitation on parliamentary sovereignty as the Westminster Parliament is no longer the supreme body over matters that are heard in Scotland and Wales. In the UK, parliament, reserves its supremacy to legislate on all matters, though it is subjected to the ECHR (1972) and HRA (1998). However, in Scotland, the sovereignty of the Westminster Parliament has been devolved regarding domestic matters of state, where the Westminster parliament is only seen as supervising the Scottish Parliament and not being the supreme body in terms of legislative power. [27] According to the Scotland Act (1998), S29 states that the Scottish parliament has full discretion when it comes to legislation and they do not need to legislate according to matters of the Westminster Parliament. [28] [24: Colin Turpin & Adam Tomkins: Government and the Constitution. (Cambridge University Press 2011)] [25: Graham, Walker Scotland, Northern Ireland, and Devolution, 1945-1979 < https://www.jstor.org/stable/27752693?Search=yes&resultItemClick=true&searchText=devolution&searchText=of&searchText=powers&searchText=UK&searchText=parliamentary&searchText=sovereignty&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Ddevolution%2Bof%2Bpowers%2BUK%2Bparliamentary%2Bsovereignty&ab_segments=0%2Fdefault-2%2Fcontrol&refreqid=search%3A1d87456cd73d5ca576ab465d0cfb2949&seq=23#metadata_info_tab_contents> accessed 28 March 2019. ] [26: MacCormick v Lord Advocate [1953] SC 396] [27: Colin Turpin & Adam Tomkins: Government and the Constitution. (Cambridge University Press 2011)] [28: Dawn Oliver: Constitutional Reform in the UK (Oxford University Press 2003)]

It can be concluded that parliament is no longer sovereign in the UK because of the various limitations which had inhibited the way the doctrine is being applied, namely the UK’s entry into the EU in 1973, the (HRA,1998), and the devolution of powers to the Scottish parliament and the Welsh assembly. This essay has highlighted and acknowledged the limitations which had caused a shift of power away from parliament. Ultimately, it was the UK’s decision of conceding their sovereignty when they decided to join the EU, and when they devolved powers to the other union states. Furthermore, under compatible interpretation, they also conceded sovereignty to the European Court of Human Rights.

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Bibliography

Primary Sources.

Cases

  1. Doherty (Fc) and Others V Birmingham City Council (2008) UKHL 57
  2. Flaminio Costa v. ENEL (1964) ECR 585, 593, Case 6/64
  3. MacCormick v Lord Advocate (1953) SC 396
  4. R v Secretary of State for Transport, ex parte Factortame ECJ (1990) 2 Lloyds Rep 351, [1990] 3 CMLR 1, C-213/89 (Factortame No.1)
  5. Steinfeld & Keidan V Secretary Of State For International Development (2018) UKSC 32 Supreme Court (England and Wales)

International Instruments

  1. Civil Partnerships Act 2004
  2. European Communities Act 1972
  3. European Convention on Human Rights 1972
  4. European Union Withdrawal Act 2018
  5. Human Rights Act 1998
  6. Scotland Act 1998
  7. Treaty of Rome 1957
  8. Treaty On European Union TITLE VI Article 50

Secondary Sources

  1. Cowie, G Legislating for transition, a stay of execution for the European Communities Act (2018) accessed 28 March 2019.
  2. Cowell F: Critically Examining the Case Against the 1998 Human Rights Act < https://books.google.com.sg/books?id=zWA1DwAAQBAJ&pg=PT104&lpg=PT104&dq=case+of+Bamforth+1998&source=bl&ots=osy24GQQwV&sig=ACfU3U3mypNxJwzPQsAwX6H4__zsO2BMoQ&hl=en&sa=X&ved=2ahUKEwi07OWp-sDhAhXS6nMBHcypClwQ6AEwDXoECAYQAQ#v=onepage&q=case%20of%20Bamforth%201998&f=false > accessed 28 March 2019
  3. Cowie, G: The status of ‘Retained EU Law” accessed 28 March 2019.
  4. EU case law outline. < https://scholar.princeton.edu/sites/default/files/tpavone/files/eu_case_law_outline_based_on_craig_de_burca_2011.pdf> accessed 28 March 2019
  5. K. D. Ewing: The Human Rights Act and Parliamentary Democracy < https://www.jstor.org/stable/1097075?read-now=1&seq=11#page_scan_tab_contents> accessed 28 March 2019
  6. L Young, A: Parliamentary Sovereignty and the Human Rights Act (Hart Publishing, 2009)
  7. Oliver, D: Constitutional Reform In the UK (Oxford University Press 2003)
  8. Parliament’s Authority, accessed 28 March 2019
  9. Turpin, C & Tomkins, A: Government and the Constitution. (Cambridge University Press 2011)
  10. Ward, I: The English Constitution (Hart Publishing 2004)
  11. What is the role of Parliament? < https://www.parliament.uk/about/how/role/> accessed 28 March 2019.
  12. Walker, G: Scotland, Northern Ireland, and devolution, 1945-1979 < https://www.jstor.org/stable/27752693?Search=yes&resultItemClick=true&searchText=devolution&searchText=of&searchText=powers&searchText=UK&searchText=parliamentary&searchText=sovereignty&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Ddevolution%2Bof%2Bpowers%2BUK%2Bparliamentary%2Bsovereignty&ab_segments=0%2Fdefault-2%2Fcontrol&refreqid=search%3A1d87456cd73d5ca576ab465d0cfb2949&seq=23#metadata_info_tab_contents> accessed 28 March 2019.

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