Last Updated 18 Jan 2017

Parliamentary Sovereignty

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"It remains a first principle of our constitutional law that Parliament in enacting primary legislation is sovereign. Parliamentary sovereignty has been qualified though not departed from in different ways by our adoption of the law of the European Union through the European Communities Act 1972 and by the Human Rights Act 1998. ” Per Lord Justice Laws, R (MISICK) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 1549 Evaluate this statement with reference to appropriate legal authorities.

In order to evaluate this statement it is important to understand what Parliamentary sovereignty is and how it relates to European Union law with the enactment of the European Communities Act 1972 and the Human Rights Act 1998. The doctrine of parliamentary sovereignty means that Parliament is the supreme Law maker of the UK, hence Parliament is free to make or unmake any law it wishes with the exception that it cannot limit its own power or bind itself when it comes to future legislation.

This dictates that all courts must uphold legislation laid down by Parliament. “ The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that "Parliament" has "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament” The principle of Parliamentary sovereignty was derived from the fundamental doctrines of the Magna Carta, Petition of Rights and the Bill of Rights.

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Unlike many other countries the UK has no written constitution meaning that it is flexible to be interpreted in the courts however the judge sees fit. The doctrine of Parliamentary supremacy is clearly in conflict with the full recognition of the community law in the UK. However, many things act so as to make parliamentary supremacy delusive, since international treaty obligations mean that certain legislation would never be passed. The Treaty of Rome does not state that EU law is to take precedence over domestic law.

However, the ECJ in the case of Costa v ENEL stated that member States are bound to follow EU law. This is reflected in the European Communities Act 1972, s 2(1) which provides that rights, powers and obligations under the Treaties are, without further enactment, to be given legal effect in member States. Accordingly, directly applicable and directly effective EU law would take precedence over domestic law and if domestic law conflicted with EU law, domestic law would need to be changed. The European Communities Act 1972 s. (1)4 directly imposes provisions of the Treaties, together with EU Regulations and other directly applicable European law, whether they were passed before or after the UK joined the European Union. It also invalidates existing domestic law wherever the two conflict and thereby the former is directly valid. Membership of the European Union is derogation from parliamentary sovereignty since all of the European Union’s powers flow from Parliament's sovereignty through the original act, and therefore Parliament retains ultimate sovereignty.

There is a limited retention of parliamentary sovereignty in many areas of European concern, since the UK has limited powers to determine penalties for breach of European Union law, and since the option is often left open in directives not to implement parts of the directive. It would appear that the doctrine of Parliament supremacy has been significantly qualified by the UK membership of the community. If absolute supremacy no longer exists, it could be restored by repealing European Community Act 1972.

But the practical reality is that a new legal order has been created, in which the community law has supremacy over national law. The European Union was accused by Lord Denning of interfering with Parliament sovereignty in the absence of express authority by the EC Treaty. However the UK membership and the European Union have together caused a significant area of legislative power to pass to EU. This does not mean that it is permanent but if the UK decided to leave the European Union, then Parliament could exercise its ultimate sovereign authority by Act of Parliament and epeal the European Communities Act 1972, whereby the provisions of the EU Treaties would no longer have effect in domestic law. “If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. ” European Union Law challenges the concept of Parliamentary Sovereignty.

The European Union also has the doctrine of supremacy which means all member states must adhere to European Union laws as opposed to their own national laws. This may have restrained Parliamentary Sovereignty in the UK upon its entry to the European Union in 1972. In order to comply with the European Court of Justice the UK Parliament enacted the European Communities Act 1972 and the Human Rights Act 1998. Lord Denning stated that signing the treaty was only the first step as Community law could not be implemented merely by signing a Treaty of Accession.

Parliament passed the European Community Act 1972, which came into force on 1st January 1973, whereby Community law become applicable in the UK. “It is an essential aspect of sovereignty that all states should have supreme control over their internal affairs, subject to the recognised limitation imposed by international law. ” Parliamentary approval is not required for EU legislation that is binding in the UK, which again jeopardises the UK sovereignty. The major case that encapsulates this is Factortame, by enacting the Merchant Shipping Act 1988, Parliament breached European law.

In this case the compatibility was challenged. The Factortame decision marks a clear, if not important, that constitutional departure from the traditional view of parliamentary sovereignty. Since Factortame, UK law now recognises that Community institutions have the right to make decisions and issue regulations which may override legislation by Parliament. The Human Rights Act 1998 was introduced in order to comply with the European Convention of Human Rights so that national law was more compatible with European Union law and to protect Parliamentary sovereignty. It first came into force on 2 October 2000.

The Human Rights Act empowers courts to read legislation in such a way as to give effect to the European Convention on Human Rights. Article 46 of the European Convention on Human Rights states that the government must abide by and must follow final decisions of the European Court of Human Rights. Actions of UK judges are limited by a constitutional compromise developed over centuries, while European judges have been given enormous power. Although Parliament could pass legislation today withdrawing Britain from the EU and Community law would cease to apply at the national level.

The Human Rights Act 1998 seems only to go so far where Parliament is concerned as is shown with the relatively new anti-terrorism laws. S. 2(1) of the HRA makes it clear these laws are still to be interpreted by the courts in their own way. “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, declaration or advisory opinion of the European Court of Human Rights (b) decision of the Commission [etc. ] …. henever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. ” Ever since the UK joined the EU in 1972, the EU has played an increasing role in Britain, and as a result has had an impact on the UK sovereignty. Therefore clearly any Community law would prevail over UK legislation passed before 1972, as this is uncontroversial and accords with the traditional doctrine of parliamentary sovereignty. However, the doctrine depends largely on the obedience by the judiciary to the doctrine of implied repeal. So the issue arises as s. (4), which declares that any future enactment to be passed must be applied subject to the provisions of the ECA 1972. Therefore since Dicey defines sovereignty as continuing , it would seem that s. 2(4) is clearly an attempt by parliament, contrary to the very principle of the UK’s constitutional, to suspend the doctrine of implied repeal and consequently, bind its successors. As membership of the European Union is derogation from Parliamentary Sovereignty in practice, all of the European Unions’ powers flow from Parliament’s original Act and therefore surely Parliament retains ultimate supreme.

Lord Denning stated that if the UK chose to take back complete supremacy it could easily do so by leaving the European Union. “If the time should come when our Parliament deliberately passes an Act…with the intention of repudiating the Treaty or any provision in it… or intentionally of acting inconsistently with it… and says so in express terms… then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. ” This could create problems for the UK in certain areas, both economically and politically.

The UK now having been a member state for nearly 30 years has to take the economic growth and other positive aspects with the negative aspects of being a member state, one being a lesser sense of Parliamentary sovereignty. As stated by Margaret Thatcher: “It is a myth that our membership of the Community will suffocate national tradition and culture. Are the Germans any less German for being in the Community, or the French any less French? Of course they are not! ” References House of Commons European scrutiny committee. (2010). The EU Bill and Parliamentary sovereignty. Available: http://www. ublications. parliament. uk/pa/cm201011/cmselect/cmeuleg/633/633i. pdf European Communities Act 1972. Available: http://www. legislation. gov. uk/ukpga/1972/68/section/1. Last accessed 1st March 2012 Human Rights Act 1998. Available: http://www. legislation. gov. uk/ukpga/1998/42/contents. Last accessed 1st March 2012 Brazier, R. (). APPENDIX 1: THE PARLIAMENT ACTS. Available: http://www. publications. parliament. uk/pa/ld200506/ldselect/ldconst/141/14104. htm. Last accessed 1st March 2012 Wagner, A. (2011). Does parliamentary sovereignty still reign supreme?. Available: http://www. guardian. o. uk/law/2011/jan/27/supreme-court-parliamentary-sovereignty. Last accessed 1st March 2012. (2011). Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty. Available: http://ojls. oxfordjournals. org/content/early/2011/10/19/ojls. gqr027. abstract. Last accessed 1st March 2012 R v Secretary of State for Transport ex parte Factortame (No. 2) [1991] 1 AC 603 Flaminio Costa v ENEL [1964] ECR 585 (6/64) -------------------------------------------- [ 1 ]. Dicey, A. V. 1982 [1914]. INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION. 8th ed. Indianapolis: Liberty Fund [ 2 ].

Flaminio Costa v ENEL [1964] ECR 585 (6/64) [ 3 ]. http://www. legislation. gov. uk/ukpga/1972/68/section/1 [ 4 ]. Lord Denning in Bulmer Ltd v J. Bollinger (1974) [ 5 ]. R v Secretary of State for Transport ex p Factortame (No. 2) [1991] 1 AC 603 [ 6 ]. Martin, E. Oxford Dictionary of Law (2002), 5th Edition, Oxford University Press, Press, Pg 469 [ 7 ]. http://www. legislation. gov. uk/ukpga/1988/12/contents [ 8 ]. http://www. legislation. gov. uk/ukpga/1998/42/contents [ 9 ]. Human Rights Act 1998, http://www. legislation. gov. uk/ukpga/1998/42/contents [ 10 ]. Lord Denning

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