Parliamentary Sovereignty

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Title: Does the idea of parliamentary sovereignty still provide a convincing explanation of constitutional realities in the United Kingdom?

Word Length: 1532

Parliamentary sovereignty as described by Dicey is ‘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’. This power of the Parliament has been progressively eroded in three contemporary issues: Britain’s membership in the European Union, the devolution of legislative powers to Scotland, and the establishment of the Human Rights Act 1998. Although it can be seen that supremacy has been retained by law, the political reality is that it wouldn’t be practical for the Parliament to exercise these rights. Hence, parliamentary sovereignty does not provide a convincing explanation of constitutional realities in the United Kingdom.

The British membership of the European Union has posed a threat to the supremacy of the Parliament but it can be purported that by law, the power still resides with Westminster. In theory, it is possible for the Parliament to repeal the European Communities Act established in 1972 and withdraw from the European Union. This could simply remove the obligation of the courts to ‘interpret [Community law] in preference to municipal law’. Furthermore, Parliament is still entitled to legislate contrary to Community law and their enactment will be upheld by the courts if it expressly states its intention for to act inconsistently with it. This is supported in Macarthys Ltd v Smith by Lord Denning’s dictum, where he states that ‘it would be the duty of our courts to follow the statute of our Parliament’ if their ‘intention of repudiating the treaty’ is represented in ‘express terms’. Hence, there is a form of parliamentary sovereignty.

However, there are reasons to suggest that Parliament’s legislative authority does not represent the constitutional realities today. Firstly, Community law has been well accepted by the courts as an ‘overriding force’ on domestic legislation. This is evident in R v Henn, R v Goldstein, and WH Smith Do-It-All v Peterborough City Council, where the courts acknowledged that ‘without further enactment’ the principles laid down by the European bodies are automatically binding on the United Kingdom. Secondly, as observed by Anthony Bradley, ‘British membership of the European Union has caused a significant area of legislative power to pass to the European authorities’. This is illustrated by three cases in which the courts have been requested to set aside statutes because of its inconsistency with Community law. In R v Secretary of State for Transport, ex parte Factortame Ltd where Spanish vessel owners were prevented from operating by the Merchant Shipping Act 1988. The nationality requirements were declared to be incompatible with Article 226 EC in the EC Treaty, and therefore the House of Lords were stipulated to disregard the statute. This ruling was considered as a ‘constitutional revolution’ by Sir William Wade as primary legislation was clearly undermined. This can be seen in another case, Marshall v Southampton and South West Hampshire Health Authority (No. 2) where it was held that the Equal Treatment Directive prevailed over the Sex Discrimination Act 1975.  Statutory law has yet again been denied of its effect by the European Courts of Justice. Another example of this would be in R v Secretary of State for Employment, ex p Equal Opportunities Commission where the Employment Protection (Consolidation) Act 1978 was repealed based on the fact that it was also contrary to Community law. Thus it is evident that by entering ‘into the Community’, there was a ‘partial surrender of sovereignty’.   Finally, because of this apparent binding effect of the European Communities Act on any ‘enactment passed or to be passed’, it can be contended there is infringement on the principle that no Parliament may bind its successors. All statutes to be passed by the Parliament now will be governed by the European bodies, further supporting the notion that parliamentary sovereignty does not explain the constitutional realities today.

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Issues were raised when the Scotland Act was brought into effect, but it can be proposed that in theory ultimate authority resides with Parliament of the United Kingdom. In the Scotland Act 1998, the Parliament in Edinburgh was granted devolved powers to make laws for Scotland within their legislative competency. Their power was restrained in that a list of matters was reserved for Westminster to determine, and that it was also plainly stated in the White Paper that the United Kingdom Parliament ‘is and will remain sovereign in all matters’. This was similarly declared in section 28(7) of the statute ...

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