Parliamentary sovereignty

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MA in Legal Studies                Candidate Number: 52169

Has Parliamentary sovereignty survived the UK’s membership of the European Community/European Union and the effects of the Human Rights Act 1998?

Parliamentary sovereignty is the ‘basic principle’ of the UK’s unwritten constitution (Loveland, 2003, p.21). One of the sources used in describing this concept is Dicey’s (1961) legal theory, which splits Parliamentary sovereignty into two limbs. The positive limb articulates that “Parliament has the right to make or unmake any law whatever”, while the negative limb expresses 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" (p.3). Thus, the doctrine of Parliamentary sovereignty can be summarised as follows: Parliament may pass legislation concerning anything; it neither bind its successors nor be bound by its predecessors; and only Parliament can change or reverse an Act of Parliament. Wade (1955) extended this by stating that the only limit to Parliament’s legal power is that it cannot detract from its own continuing sovereignty.

Parliamentary sovereignty prevents judicial review of domestic law. Since the late 20th Century, this concept has undergone erosion from devolution in Scotland, the increasing use of referendums, the UK’s accession to the EU and the incorporation of the European Convention of Human Rights (ECHR) into domestic law. In the following discussion, the European Communities Act 1972 (ECA) and Human Rights Act 1998 (HRA) will be analysed as sources of erosion of the principle of Parliamentary supremacy. According to Wade (1996, 1991), the concept of Parliamentary sovereignty has been completely eroded by the ECA. But the HRA can be said to have posed only a limited challenge, if any, to Parliamentary supremacy.

When the UK agreed to join the European Economic Communities (EEC) it passed the ECA in order to provide for the consequent changes of law. The effect of incorporating the Treaty of Rome into British law would be to bind Parliament and its successors not to breach EEC law in the future, even though the Treaty’s text does not expressly state that EEC laws are superior to domestic law (Loveland, 2003). The judgement in Costa v ENEL 6/64 [1964] CMLR 425 seemed to have answered the question of the relationship between EEC law and domestic law – EEC membership required Member states to surrender, or at least lend, some of their sovereignty to the EEC (now the EU).

From the ECJ’s perspective, it is essential that the main rules of Community law should have direct effect in the legal systems of the Member states (Walt Wilhelm v Bundeskartellant 14/68 [1969] ECR 1, para.6) in order to enforce supremacy. Direct effect is a European Court of Justice (ECJ) ‘creation’ and means that a citizen or company in a Member state can enforce their EEC rights by an action in domestic courts. Like supremacy, it doesn’t feature explicitly in the Treaty.

British opponents of the UK’s accession to the EEC feared that some of Parliament’s powers would be irretrievably lost to Community institutions because there is no time limit in the Treaties (Jackson, 2001, p.68). But it was argued that it was constitutionally impossible for Britain to honour the obligations that EEC membership entailed because it would conflict with the two limbs of Diceyan theory (Loveland, 2003, p.374). Since the UK’s accession, Parliament sovereignty has been questioned, especially after the House of Lords decision in R v Secretary of State for Transport ex parte Factortame [1992] 3 WLR 285.

The general effect of the ECA is to override existing domestic law conflicting with Community law and to impose a presumption of interpretation that future statute law is to be read subject to Community law. But where a statute is clear and unambiguous, its provisions are enforceable even if it breaches international obligations, because Parliament’s sovereignty extends even to breaking Treaties (per Diplock LJ in Salomon v Commissioners of Custom & Excise [1966] 3 All ER 871). Parliament is not bound by international law, but its activities are in fact restrained by considerations of international law and the “comity of nations” (Jackson, 2001, p.55).

The government in 1972 recognised that a future Parliament could disregard any legislation to not leave the Community, or pass legislation conflicting with Community law, so it only went as far as drafting the ECA to instruct British courts on how to apply Community law in the future (Turpin, 2002). The Act contains no provisions purporting to exclude or limit Parliament’s power to repeal or amend it (Jackson, 2001).

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Section 2(1) had the effect of bringing into domestic law all the rules of existing and future Community law that are directly applicable or directly effective, “without further enactment”. This had the effect of adopting at a stroke almost the entire existing body of Community regulations. Section 2(2) empowers the government to give effect to non-directly effective EEC law. Section 2(4) stipulated that “any enactments passed or to be passed” are “to be construed” and take effect subject to the provisions of section 2. Section 3(1) provided that for the purpose of all legal proceedings, the meaning or effect ...

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