“No Act of the Parliament of the United Kingdom shall extend to a dominion as part of the law of that dominion unless expressly requested and consented to by the dominion.”
Hence, the dominion’s courts might ignore any Act of parliament purporting to apply to a dominion, but passed without the consent and request of that dominion. However, parliament might first repeal s4 statute of Westminster 1931, but as Lord Sankey observed in British Coal Corporation v R [1935] A.C 500 that is theory and has no relation in realities.
A further limitation can be found in the Colonial Laws Validity Acts 1865 in the case of Attorney General for New South Wales v Trethown [1932] A.C 526. Under the Act, the legislative of New South Wales had the full power to make laws about its own constitution, powers and procedures, as long as such laws were passed in such manner and form as might be required from time to time by any act of parliament or other law for the time being in force. An act passed in 1929 provided that the Upper House of the legislative should not be abolished until a Bill passed by both of the Houses had been approved by a referendum (-also required for amendments to the 1929 Act). Subsequently a Bill was passed by both of the Houses seeking to abolish both the Upper House and the requirement of the referendum. The New South Wales Court granted an injunction to restrain the government of New South Wales from presenting the Bill for Royal Assent until a referendum had been held. On appeal it was held by the judicial Committee of the Privy Council that the requirement of a referendum was binding on the legislature until it had been abolished by a law passed in the manner and form required by the law for the time being, with the approval of a referendum. However, the “manner and form” provision in question was extended in the sense that it imposed on the New South Wales legislation by parliament higher authority. Such extended provisions are only possible where higher authority exists. In other words, either in the form of a written constitution or a colonial power. Parliamentary legislation cannot be extended in this way as the U.K. has neither a written constitution nor a colonial power.
Parliamentary sovereignty is also affected because even though judges cannot invalidate legislation, they can however use their powers of statutory interpretation to exert a significant influence over the way in which legislation actually operates. This can be done to the extent that it produces an outcome completely contrary to that of which parliament had intended. This is illustrated in the case of Anisminic v Foreign Compensation Commission [1969]2 A.C 147, where a provision stating that no determination of the Foreign Compensation Commission was to be questioned in any court of law was overturned following the ruling of the House of Lords that this only prevented the courts from examining “valid” determinations.
The forces, which prevent parliament from extreme uses of its sovereignty, are mainly political. The practical limitation of sovereignty will be the pressure of public opinion and political opposition, and the desire to be re-elected at the next General Election. As a result, the government will be constrained from promoting legislation that favours one group too much against the interests of the general public.
Europe
The U.K. became a member of the European Committees on the first of January 1973 by virtue of the treaty of Accession 1972. For the Treaty of Accession and the community treaties and law to have effect in the U.K. parliament passed legislation incorporating them into domestic law by the European Communities Act 1972.
As the U.K. has become a member of the European Union, inevitably, situations have arisen when an Act of parliament has conflicted with the European Union. Given the provisions of the European Communities Act 1972, the courts have had to try to resolve these conflicts, constrained by the doctrine of parliamentary sovereignty on the one hand and the realities of membership of the European Union on the other.
Section 2(4) of the European Communities Act 1972 addresses the issue of conflict between domestic legislation (Acts of Parliament) and European law stating that Acts of parliament shall be construed and have effect subject to directly applicable Community law.
Lord Dennings has views on this matter in Bulmer V Bollinger (1974), “When we come to matters with a European elect the Treaty is like an incoming tide. It flows into the Estuaries and up the rivers. It cannot be held back!” Despite Lord Dennings words, there are several possible interpretations of S2 (4) European Communities Act 1972.
It may mean that all U.K legislation shall only take effect to the extent that it is consistent with Community law, however clearly it may appear from the U.K legislation that it is intended to have effect not withstanding any community law to the contrary. It is clear from both the Treaty and from statements made by the European Court of Justice, that the community law should prevail over national law in all circumstances. In Re Export Tax on Art Treasurers (No 2) [1972] CMCR, 699, the European Court of Justice stated:
“The grant to the community by the member States of the rights and Powers envisaged by the provisions of the Treaty implies in fact a definitive limitation of their sovereign powers over which no appeal to provisions of international law of any kind whatever can prevail.
This makes it clear that, as far as the European court of Justice is concerned, any U.K. constitutional law doctrine of parliamentary sovereignty is irrelevant.(-----make notes from u’s book instead-----------)
The Treaty of Union between England and Scotland
In 1707, the parliaments of England and Scotland were brought together to form the British parliament. It came into existence by virtue of the Union and hence its powers were limited by the guarantees in the Treaty, which had been enacted by the separate former parliaments. The view that “Sovereign parliament may not bind its successors” may be countered by the view that even if both former parliaments were supreme before 1707, they each committed suicide in favour of a common heir with limited powers,(taken Cons & Admin, A.W.Bradey Ewing).
Many argue that because of the Treaty of Union the British parliament should not be able to enjoy the attribute of legislative supremacy alone and this has been challenged by many Scottish cases.
One such case is the case of Macormick V Lord Advacate. Here, the Queen’s title as ‘Elizabeth the Second’ was challenged as the Scotts had no first Queen. Also, it contravened article 1 of the Treaty of Union. Lord Gulthrie discussed the claim stating that an Act of parliament could not be challenged in any court as being breach of the Treaty of Union or on any other ground. For further example see Gibson v Lord Advocate).
No Scottish court has ever openly questioned the validity of any general Act relating to the issues protected by the acts of Union.
IRELAND
In the Ireland Act 1949, the U.K. parliament recognised the republican states of Southern Ireland and its position in the U.K. but did not give any guarantee of the continued existence of the parliament of Northern Ireland and was abolished by Westminster in 1973. Hence, it was necessary for the guarantee of Northern Ireland’s status to be given a new form.
The Northern Ireland Constitution Act 1973,s1 provides that Northern Ireland will not cease to be part of the U.K. unless the majority of the people in Northern Ireland express the desire to do so, through voting. This Northern Ireland guarantee is an example of a limitation which parliament may impose on it but which does not incapacitate parliament from acting.
HUMAN RIGHTS ACT
Now let us consider whether the signing up to the European Convention on Human Rights that has had any effect on parliamentary sovereignty. Incidents have occurred where acts of parliament have conflicted with the convention on Human Rights and the court has had to decide which one should prevail. An example where such an incident has occurred is the case of Kynaston v Secretary of State for the Home Department (1981)73 Cr App R 281. The court held that the act must be applied rather than the convention.
However, in Birdi v Secretary for Home affairs (1975), a similar incident occurred, where the convention conflicted with statute and Lord Denning decided that the convention should prevail, thus destroying the notion of parliamentary sovereignty.
However, parliamentary supremacy was restored a year later, in the case of R v Singh [1976] QB 198, where Lord Denning apologized for his decision made in the earlier case, confessing that he was wrong and that the act of parliament was supreme over all.
A recent example where parliament has enacted a piece of legislation contradicting the Human Rights Act is the case of Regina v Saunders (Judgement: Dec 21,2002). Here Mr Saunders argued that this conviction was unfair, as the trial was unfair. The European Court of Human Rights recognised there had been a breach. There was a conflict between Act of Parliament and Human Rights, and hence the court issued a declaration of incompatibility.
The government also have the facility to derogate. For example, the government has decided to derogate from one of the convention rights, Art 5 – the right to liberty in their legislative response to the 11th September attacks. This is to allow the detention of non-British nationals suspected of involvement with international terrorism, without trial (as set out in the Anti-Terrorism, Crime and Security Act, just passed by parliament.)
Provided that this delegation is lawful, then the U.K. will remain in compliance with the convention and no public authority will violate the convention rights by enforcing the powers given under the Act, since those rights will have been redefined-& limited- by the derogation.
In general, courts try their utmost to reconcile if a conflict arises between Human Right’s and Acts of Parliament, but if the conflict still remains, then courts apply the Acts of Parliament and then an issue of incompatibility is declared. The government also has the option to derogate.
However, there has been no case where incompatibility has changed the law.
There have been cases in which parliament has bowed to pressure to amend the law where there has been a breach of the convention (Campbell and Cosans v U.K. 1982); Malone v U.K. (1985).
CONCLUSION
In the light of all that has been discussed, I conclude that parliament is supreme. It has the power to pass legislation which conflicts with common law, international treaties etc. but it may not choose to use its power for political, moral considerations and fear of electoral defeat.
However, there does seem to be one legal fetter, the European Community. The European Court recognises community law as being supreme (Costa v ENEL{1964}) and that the sovereignty of member states has been limited.
But parliament could repeal the European Community Act 1972 which would restore total legislative freedom.
