Public Law

However, there are many items contained in the HRA which keeps a large amount of their sovereignty. The drafting of the Act shows that Parliament want to keep their sovereignty as the courts do not have the power to knock down or set aside a piece of domestic legislation on the basis of the ECHR. Furthermore, if a conflict is found in a piece of domestic legislation then the method of finding a resolution is in the Government’s hands. When a conflict occurs, the courts are to try and find a logical solution to try and ‘twist’ words and are to ask the Government for assistance in order to find a solution. If this is not possible, then the judge is to make a declaration of incompatibility, but this is purely a last resort. If this occurs then it is up to the Government to either alter the ‘bad’ legislation or to overrule the convention. A recent case in which the legislation was kept, with the convention being overruled was in R. (on the application of Abbasi) v Secretary of State for Foreign and

Commonwealth Affairs where suspected terrorist members of the Al-Qaeda group were being detained without representation and in degrading conditions following the September 11th attacks. Plus, for some areas which might cause conflict, the Home Secretary has already stated that he will not bring forward any amending legislation, and in a House of Commons debate he cited abortion.

The formation of the European Union (EU) began in April 1951 with the signing of the European Coal and Steel Community (ECSC), and then the European Economic Community in 1958. As time went on the Community became more and more integrated, with a growing political – and thus legal, integration. In 1972 the European Communities Act was passed following Accession earlier in the year, and Britain became a member. In s 2(1) of the 1972 Act, Britain accepted that any direct Community law would instantly be enforceable in the British courts, and would take precedent over domestic legislation. This limits Parliament to the extent that it now has reduced legislation making abilities as it is to avoid creating legislation which EU law already deals with. When an EU directive is made, Government may also be brought to trial for not implementing the directive, further undermining their authority. A good example of this is EC Commission v UK where the Government failed to implement directives set out regarding the protection of workers in the event of transfers of undertaking or collective redundancies. This interpretation of domestic legislation as to its compatibility with EU Directives is known as the principle of Indirect Effect or the Marleasing principle after a famous French case, and is aimed to ensure that the courts interpret all domestic legislation in accordance with EU directives.

But, what happens when a statute is found to be in conflict with an EU law or Directive? In the initial period following the 1972 Act, the courts were indecisive as to what to do, as there was no clear answer. Lord Denning initially took the view that once a statute has been passed, it is not for the courts to argue, thus following the theory of Parliamentary Supremacy. However, as time passed the courts changed and began to implement EU law as supreme but leaving the question as to what would happen if Parliament wanted to over rule a piece of EU legislation unanswered. Currently, the authority on this problem comes in a series of cases known as the Factortame cases in which a conflict with the Merchant Shipping Act 1988 arose. On this case, the European Court of Justice (ECJ) ruled that while a domestic statute was in conflict with EU law, then the statute should be suspended and EU law prevail. This was upheld by the House of Lords on return and has been seen by many a dramatic constitutional change, removing the continued supremacy of Parliament. Adding to the undermining of Parliament was the courts decision that damages should be awarded to the parties who lost money due to loss of income because of the offending statute. All these points further undermine the theory of supremacy as it appears that the Government of 1972 have successfully bound any future Governments by incorporating EU law into Britain.

However, a few fundamental issues remain in the question of EU dominance over Parliament. One fact that retains the principle of Parliamentary Supremacy is that the Government could, in theory, leave the EU at any time it pleases thus re-instating its complete supremacy and going back to the traditional doctrine of pre-1972. This however would cause a political upheaval if it was done without backing, and is thus purely a theoretical possibility. It is also questionable the amount to which Factortame changed the principles put forward earlier in Macarthays, as many critics perceive that the court didn’t deal with the issue well enough and still left a void, despite being given the opportunity to clarify. So, in theory, if the courts wanted to ignore a piece of EU legislation, they could and the Government would face trial from the ECJ, but it would just be argued that the Government had repudiated the 1972 Act.

Another doctrine of the UK constitution is that of the separation of powers. This doctrine embodies the fact that the legislature (Parliament), the executive and the judiciary are completely independent bodies which should not interfere with each other. However, it is widely criticised that this doctrine is not that relevant in the British constitution in the large part that the legislature is dominated by the executive. Again, this would undermine the supremacy of Parliament as it would then just be a puppet to the will of the executive. This problem is becoming more and more apparent as time goes on, with the current Prime Minister being one of the most controlling PM’s ever. However, this occurrence is not new (in war time anyway) as Lloyd George had his “Garden Suburb” in sheds in the garden of Number 10 to facilitate continuous planning, but most notable was Winston Churchill’s Whitehall Bunker in 1942 where he and the cabinet ran the state for most of the war. This almost quasi-presidential character of the PM has turned the Cabinet Office into a de facto PM’s office where the PM himself has increased control, surrounded by hundreds of members of support staff for advising, implementing and publicising.  Due to this, decisions are usually always informally led by the PM, setting policy and if needs be he may move in and out of any ministerial policy fields that he sees necessary. Furthermore, the cabinet and ministers comprise a significant proportion of Parliament and so they can push for any decisions they want to be made, ensuring that they pass without trouble. This, coupled with the Parliamentary whipping system ensures that MP’s act in the way that their party (and PM) want them to. This has also led to the slow demise of the House of Lords as a ‘stop check’ on Government as reforms are slowly changing the effect the Lords has in the Parliamentary process. The House of Lords Act 1999 removed many hereditary peers from the Lords in order to create a more legitimate house. However, a new debate arose as to composition of the House – if elected, then a mirror commons could occur so there would be no check, or conversely, an opposite could occur and nothing would get done. The question of reform is not over, and is still on the Blairite policy, leading almost definitely to further domination by the executive.

Despite the increased domination of the Government, there are still a few checks in existence. With more awareness of this domination, and in contrast to a nation with a democratic presidential constitution where many checks are in place, select committees have developed to ‘keep an eye’ on Government agencies. These agencies have quite vast powers to call ministers to question and to scrutinise any Government agencies work. Also, the Liaison Committee of Select Committee Chairs meets often and comprises of the chairperson of every select committee to discuss and evaluate the Governments work in general. The Parliamentary Ombudsman also works in a similar way, investigating complaints made by an individual about the behaviour of a Government organisation or individual, again with large investigatory powers. Also, there is the principle of collective responsibility within the Government. If a Government looses support of the House of Commons on an important item of policy, such as a Manifesto Bill on second reading or a Vote of No Confidence, then it is held that the PM will resign or, if possible, seek dissolution. There is also the policy of ministerial responsibility that if a Minister breaks the common rules held in convention then he or she must resign from there post. An example of this is Carltona v Commisioner of Works which embodied the ‘ministerial agency’ principle that a minister cannot act in person, and must do so through a civil servant.

Therefore in conclusion I believe that over recent years there has been quite a significant reduction in the original definition of Parliamentary Supremacy, with its original meaning being slowly eroded away. Although the effects of the ECHR are minimal as Parliament can choose to ignore it at will, the effects of the European union are quite large, and only destined to get larger with the once unimaginable possibility of a United States of Europe now possible. Also, the effects of the slow increase in executive control are becoming more and more apparent with the pinnacle not yet reached. However, I believe that Parliamentary supremacy is still a fundamental aspect of the British constitution and is still very relevant today as without it our constitution would cease to exist and many aspects of our law are still based firmly upon it.