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Principle of Parliamentary Sovereignty: Analytical Essay

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Category Politics
Subcategory UK Politics
Topic Parliamentary Sovereignty

Words 1335
Pages 3

The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, Crown dependencies and Overseas Territories. Parliament is regarded as the key constitutional principle in the UK. Since the 19th Century, it has been recognized that Parliament can legally pass any law as the courts do not have the constitutional power to invalidate them. Since then, Parliamentary Sovereignty was introduced.

About Parliamentary Sovereignty there has been multiple theories and opinions, however there is only one that brings particular interest and it has been widely discussed: the classic theory of Albert Venn Dicey. In his work “Introduction to the Study of the Law of the Constitution”, A.V. Dicey developed a doctrine that would later be considered part of the uncodified Constitution. He stated that Parliament has “under the English Constitution, the right to make or unmake any law whatever; and further … no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”. His doctrine has three particular limbs:

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Parliament is the supreme law-making body and may enact laws on any subject matter. (Positive Limb)
No person or body, including a court of law, may question the validity of parliamentary enactments. (Negative Limb)
No parliament may be bound by a predecessor or bind a successor. (The Theory of Continuing Sovereignty)

However, over time this theory encountered different challenges and potential limitations that can pose as threats to the supremacy of the parliament, such as: Devolution, The Doctrine of Implied Repeal, Membership of the European Union, Human Rights Act 1998. Furthermore, we will evaluate the extent to which the HRA 1998 contradicts with Parliamentary Sovereignty and if the act may be seen as a possible threat.

The Human Rights Act is an act of Parliament which on the 9th November 1998 received Royal Assent. However, it mostly came into force on 2 October 2000. Its purpose was to formally incorporate the rights contained in the European Convention of Human Rights (ECHR) into UK Law, to make ECHR rights directly enforceable in UK Courts, to enable individual claims against public authorities for human rights violation to be brought before UK courts and to give practical effect and meaning to rights in the UK. The Human Rights Act 1998 has many important provisions, however, in this essay we will mainly focus on s.3 and s.4 of the HRA 1998 and will determine how the judicial application of these sections contradicts with the classical Diceyan doctrine. S.3 of the Human Rights Act 1998 provides that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.” . Therefore, this section imposes an interpretative obligation on the courts and an obligation on all public authorities to give effect to Convention rights. Theoretically, the Human Rights Act 1998 it is supposed to preserve the principle of parliamentary sovereignty.

In Offen1 it was considered that s.3 of the HRA 1998 helped the court to interpret s.2 of the 1997 Act in a way which was compatible with the Convention and gave effect to the elemental purpose of the section. Nevertheless, sometimes the use of s.3 of the HRA 1998 can stray from what the Parliament initially intended.

For example, in Ghaidan2, Rent Act 1977 only allowed “spouses” to achieve a statutory tenancy. The applicants were homosexual so, under the Rent Act 1977 they could not succeed tenancies. It was held that under Art.14 of the European Convention of Human Rights, the Rent Act 1977 was approving discriminatory practice. Therefore, after the application of s.3 of the HRA 1998, the Court interpreted “spouse” to include same-sex couples. This solution required the legislation to be given different meaning and depart from the legislative intention which contradicts with the intention of Parliament. Therefore, the application of s.3 may sometimes question the validity of Parliamentary enactments which contravenes with Dicey’s negative limb.

In R v A3, Lord Steyn explained what is the potential effect of s.3 on the words of a statute. He provided that “it will sometimes be necessary to adopt an interpretation which linguistically may appear strained.” . Moreover, in the later case of Sheldrake4, Lord Bingham came to the conclusion that a Convention- compliant interpretation under s.3 is the primary remedial measure and a declaration of incompatibility under s.4 is an exceptional course. S. 4 of the Human Rights Act 1998 provides that “if the Court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility”. The use of this section is a measure of last resort and “is only to be used when inconsistencies between legislative provisions and Convention rights cannot be reconciled by means of interpretation”. However, its application may rise some questions, such as: are the courts determining the validity of a Parliament enactment? If so, the classical Diceyan doctrine would be again defied.

In Bellinger5, The Matrimonial Causes Act 1973 provided that a marriage that is not between a male and a female is considered void. Applicant underwent gender reassignment surgery but was still classified and registered as male. The Court held that marriage was not valid between two people who were of the same gender at birth and a person whose sex has been correctly classified at birth could not later become of opposite sex. Therefore, the non-recognition of gender reassignment for the purposes of marriage contravened with arts 8 and 12 of the European Convention of Human Rights and a declaration of incompatibility would be made. However, beside the declaration of incompatibility nothing more was done as this would be a crucial change in the law and the House of Lords did not have the power to do so. It was said that such a change would interfere with the traditional viewing of marriage and would rise some sensitive issues. Therefore, this change it is to be made only by Parliament and not judicial intervention.

Another important case is A v Secretary of State for the Home Department6 in which was declared that the Anti-terrorism, Crime and Security Act 2001 s.23 was contradicting with arts 5 and 14 the Human Rights Act 1998, permitting the detention of suspected non- terrorists in a way that discriminated on the ground of nationality or immigration status. As a consequence, the House of Lords made a declaration of incompatibility under s.4 of the Human Rights Act 1998 and allowed the appeals. Being such a major and sensitive topic, the Government and the Parliament were called on to exercise a pre-eminently political judgment.

It is arguably that s.4 of the Human Rights Act 1998 preserves sovereignty as it reserves the right of amendment for Parliament. Therefore, as per Professor Gearty, s.4 is “politically potent but legally irrelevant”.

To conclude, it appears that s.3 of the Human Rights Act 1998 “does not affect the validity, continuing operation or enforcement of any incompatible primary legislation” and s.4 “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”. Even though, in some cases the HRA 1998 would question the validity of parliamentary enactments and even require vital changes, thus it is arguable that Parliamentary Sovereignty has been limited. Legally, Parliament has the authority to ignore declarations of incompatibility and expressly repeal the Human Rights Act 1998. However, it is unlikely that it would do that as it would cause major political issues.

In consequence, we can state that judicial review on the basis of Human Rights Act 1998 would not pose as a threat to Parliamentary sovereignty and the only matters that are preventing Parliament from exercising its supreme power are political constraints.