There are three central features of the United Kingdoms constitution, the rule of law, separation of powers and the doctrine of parliamentary supremacy. It is regarded that the most important of the three is Parliamentary sovereignty.
Parliamentary sovereignty (principles, working in practise and limitations)
The doctrine of parliamentary sovereignty is regarding the relationship between those who create the acts and those who apply them. This raises the question of which has supreme power. Parliament is the highest source of law and if a law has been passed according to parliament’s rules, it is valid law and must be applied by the courts, even if it is unfair or unjust.
The principle of Parliamentary sovereignty dates back to 17th century of the “Glorious Revolution” which passed the power from the Monarch to Parliament and the Bill of Rights 1689. From then on it was established that there is no higher body, such as a Supreme Court, that constrains the legal power of Parliament.
Dicey’s view on Parliamentary sovereignty consisted of four factors: Laws passed by Parliament cannot be annulled or changed by the courts; Parliament cannot bind it’s successors as to the substance, style or form of successive legislation; Parliaments can pass laws on any subject; Parliaments laws control the activities of anyone, anywhere. This is also reflected in Section 2 S2.4 of the draft Constitution. An example of Parliamentary supremacy comes from the case of Exp Canon Selwyn (1872), it raised the question of the validity of the Monarchs assent to the Irish Church Disestablishment Act 1869. Cockburn LJ stated that: “There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An Act of the legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce a judgement as to the validity of an Act of Parliament.” This was also emphasised in a later case of Pickin V British Railway Board (1974).
In 2004, the Government hoped to pass the Asylum and Immigration Bill, which contained a comprehensive "ouster clause", it excluded judicial review of decisions on applications for asylum. There was uproar among judges and lawyers, and Lord Woolf, suggested that if the clause became law, the courts would refuse to apply it. The government backed down, and the clause became law. Following the case of Factortame, which involved an ouster clause in the Merchant Shipping Act 1985, the court said it based the decisions on the "will of Parliament".
The government cannot pass highly unpopular laws, as there is an election every five years and they do not want to risk loosing power. Public opinion, the operation of pressure groups and international law has an effect on Parliament. Legislation such as the European Communities Act 1972, gave Britain entry in to the EEC. This had a serious impact and raises questions on Parliamentary sovereignty. EU law is part of our domestic legal system and has precedence over our domestic law. How should a domestic court deal with a situation where UK statue and EC law appear inconsistent? This was demonstrated in the case of Cheyney V Conn (1968). The claim was that money for tax, given under the Finance Act 1964 would be used in a way against international law. The court decided it was their job to simply apply the act, regardless whether it was fair or not. From this case it is evident that the Courts see themselves as referees who must apply the rules. The fact that the Judiciary has to uphold Parliaments sovereignty is listed in Section 4 S4.8 of the draft Constitution. To add, following the European Communities Act 1972, the judges appear to believe that ECA 1972 imposes an obligation, to interpret domestic statues directly with EU law, to minimise conflict. This occurred in McCarthy Ltd V Smith 1979 which involved conflict between domestic legislation and EU law. This comes close to suggesting that new statue law should be created, where inconsistent with EU law. By implementing European Communities Act 1972 Parliament voluntarily surrendered its sovereignty on laws and issues conflicting with EU law.
The Human Rights Act 1998 is another factor in Parliamentary Sovereignty. It has not been entrenched into our domestic law and therefore courts should not strike down legislation that is incompatible with it. However, in a political sense if a law went against the Act, the public would not be happy, which may lead to the political party in power to become unpopular. Therefore it is unlikely that much legislation will go against the Act and therefore there are certain areas that can’t be legislated on for political reasons. When legislation does contravene Human Rights Act 1998, the courts could state the incompatibilities and scrutinise the legislation in question. However it is debatable how far the courts will call legislation into question over the Human Rights Act 1998.
In a case Pepper v Hart, it was stated that the Judiciary could interpret legislation when a literal interpretation would lead to an absurd outcome. It could be argued that, this may be seen as a limit on Parliamentary Sovereignty as using statutory interpretation enables judges to get around legislation in various ways.
Another factor which affects Parliamentary Sovereignty is the devolution of powers. What are devolved powers? These are decisions that Parliament used to control, but are now taken by the separate bodies such as Scottish Parliament. This could include matters like education or health.
The Scottish Parliament and the National Assembly for Wales took responsibility for their devolved powers on 1 July 1999, Northern Ireland Assembly formed on 2 December 1999. These powers were suspended on 14 October 2002, but were again restored on 8 May 2007.
Within the draft Constitution Section 2 S2.1(a) and (b) it is stated that” Parliament retains the power to legislate for those regions to which power is devolved”. This is an accurate reflection of parliamentary sovereignty as it is today.
There are three types of devolution: Administrative which is practice of transferring responsibilities from central government departments to territorial departments of the same Government. The second being the Executive, where the prerogative powers of the UK Government are transferred to ministers of devolved governments and the third being Legislative, where law-making powers are transferred to other legislatures.
This devolution can be seen as limiting the sovereign power of Parliament as it is passing control to another body.
In an argument it could also be said that the developments such as the devolution of power, The Human Rights Act 1998, UK's entry to the European Union in 1972 and the decision to establish a UK Supreme Court in 2009, do not undermine the principle of parliamentary sovereignty as Parliament has the power to abolish any of the devolved legislatures if it wished to do so, although it would be very unlikely that it would.
In conclusion, the draft Constitution is an accurate reflection of the doctrine of Parliamentary Sovereignty.
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Bibliography
- W201 Assessment Guide, Milton Keynes, The Open University, pp. 51 - 54
- Units 3 and 4, Challenging Parliamentary Sovereignty, W201 Law: the individual & the State, Milton Keynes, The Open University
- Unit 6 , The Law and Institutions of Government – Structure, W201 Law: the individual & the State, Milton Keynes, The Open University
- Unit 7, The law and tInstitutions of Government – Relationships, W201 Law: the individual & the State, Milton Keynes, The Open University
- Unit 9, The State and the Individual – General Principles, W201 Law: the individual & the State, Milton Keynes, The Open University
- Constitutional and Administrative Law, Seventh Edition, Hilaire Barnett, Routledge-Cavendish, Milton Keynes, The Open University
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Cases and Materials on Constitutional & Administrative Law, 9th Edition, Michael Allen & Brian Thompson, Oxford University Press, Milton Keynes, The Open University
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- Study notes