On the one hand, it is clear that parliamentary sovereignty is a major characteristic of the British Constitution and still lives on today without any theoretical or practical limitations. The most recent example of this can be the, Terrorism Act 2006 whereby someone can be kept in detention without trial whereas an earlier example can be the War Damage Act 1965 where the Parliament legislated retrospectively. Although these Acts were deemed as against international law and thus heavily criticised as unconstitutional there was no higher supreme authority that could question or stop the Acts from passing. Therefore in this instance Lord Hope’s assertions cannot be upheld and parliamentary sovereignty can be claimed as unqualified.
On the other hand, Lord Hope’s assertion can be seen true, because parliamentary sovereignty is definitely no longer as entrenched as it once used to be. There now is indeed a much more supreme authority that heavily influences decisions made in the courts of the United Kingdom today, and that is the power of the EU law. Concerns were expressed from the very beginning on how membership of the EU may have a dramatic impact on the, Diceyean doctrine of parliamentary sovereignty within the British Constitution. As, it was established by the European Court of Justice in Costa v ENEL: that EU law must ‘prevail over incompatible member state law’. Of course, achieving this was impossible without undermining the principle of parliamentary sovereignty. In order to pursue its membership in the European Union the Parliament therefore passed the, ECA 1972 to recognise the EU law. Section 2 of the Act states, “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties… are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in the law, and be enforced, allowed and followed accordingly”. The words, “without further enactment” are crucial because they mean ‘without Parliament’. Therefore placing limitations on parliamentary sovereignty. Sections 2(1) and 2(4) of the Act state that the provisions apply to ‘any enactment passed or to be passed’, meaning that the 1972 Act bounds the Parliament not only to the current but also to the future EU law thus restraining parliamentary sovereignty and more importantly contradicting Dicey’s principle of ‘Parliament not binding it successors’. Furthermore the EU provisions implemented in the form of ‘Regulations’ or ‘Directives’ have implications on the sovereignty of the Parliament. This is due to the fact that ‘Regulations’ are ‘directly applicable’ they do not need an Act of Parliament to come into force thereby supporting Lord Hope’s assertions that undoubtedly, “sovereignty of Parliament .. is being qualified”. In support of Lord Hope’s view one can make reference to both the case of Factortame and Equal Opportunities Commission v Secretary of State where despite the conflict between EU and domestic law, the courts gave supremacy to EU law. The law of Parliament was clearly set aside in this decision emphasising that UK law is no longer supreme. Yet in Pickin v British Railways Board the House of Lords supported the Act of Parliament as opposed to EU law. The solution to end these conflict was provided by the European Court of Justice in Marleasing SA v LA Commerical Internacionale, where it was allowed for national courts to interpret its own national law, ‘as far as possible’ in the light of the wording and purpose of the directive’.
Still, the ECA 1972 Act can of course be expressly amended or repealed. If such legislation was enforced by the Parliament the EU law would instantly lose its primary effect within the UK. As a result Parliamentary sovereignty would be restored to its Diceyean form and Parliament would be ‘absolutely’ sovereign. However this solution is impractical because the political and economic benefits derived from being part of the European Union are countless, thus worth qualifying parliamentary sovereignty in exchange for the wider benefits received. Although the next successive Parliament is not restricted by its successors it will be extremely difficult to repeal such an act because of the impracticalities of it.
Another foreign legislation that restricts the Parliamentary sovereignty is the incorporation of the ECHR within the British legal system. Thought courts are explicitly told to make sure where cases cause a conflict between an Act and the ECHR then it is left upon the judge to dictate which law shall be enforced. This has been criticised because it degrades Dicey’s rule of law which states clearly that, “no one should be above the law, including government, and that the state should only be able to act in accordance with the law and in no arbitrary manner”. Therefore giving judges such a responsibility undermines the rule of law which is what the doctrine of parliamentary sovereignty relies upon.
Finally it is not only external factors that have contributed to the limitation of parliamentary sovereignty there have been considerable amount of changes in the internal system of the Parliament. Since, the scheme of devolution enforced by the; the Scotland Act 1998 and Government of Wales Act 1998 which in effect degraded the ‘dominance of the sovereignty of Parliament’. Though it can be argued that such Acts can theoretically be repealed but in again, in practise it is virtually impossible to regain control off regions that have been granted independence. Evidence that devolution has undermined parliamentary sovereignty can be evident from the Higher Education Act 2004 which is not enforced in Scotland. However both Scotland and Wales are forbidden to pass any act which contradicts EU law or incompatible with ECHR; implying that parliaments in Wales and Scotland can only make minor decisions and must abide by the major decisions made by the Parliament in Westminster.
Another internal factor which has imposed limitation on the notion of parliamentary sovereignty is the hierarchy system developed by the; Parliament Act 1949. These Acts have given the House of Commons dominant power because the executive government has since been able to pass Acts which the House of Lords has rejected but the Act has received Royal Assent. This was famously seen in the Attorney General v Jackson case where the plaintiffs deemed the Hunting Act2004 invalid on the bases that it validity derived from the Parliament Act 1949, which itself was invalid. Such fundamental alterations clearly differ from the Diceyan era and thus imply that parliamentary sovereignty has qualified.
Finally it is important to analyse Lord Hope’s question of was the Parliament ever sovereign in the ‘absolute’ sense. Seeing as, it has always been subject to political limitations. As, to become the executive government the winning party has to gain the maximum votes nationally to take leadership and thus it is in the interest of Parliament to only legislate those acts that would not cause an adverse public reaction . Due to the fact that the winning party is determined to gain as many votes as possible. Therefore challenging the entire existence of parliamentary sovereignty.
On the whole it can be assumed that Lord Hope’s assertion can be deemed as true. Parliamentary sovereignty has been clearly qualified and has literally lost its power as the supreme power. However because each factor that has limited parliamentary sovereignty has been as a result of an Act passed by the Parliament itself, it can be deemed that the Parliament can on ‘paper’ reclaim is sovereign power whenever it wishes to do so even if in practise this may seem difficult .
Bibliography
Primary Sources
Cases:
Equal Opportunities Commission v Secretary of State [1994] (HL)
Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262 (LH)
Madzimbamuto v Lordner Burke [1969] 1 AC 645, 723. (Laws LR)
Pickin v British Railways Board [1974] (HL)
R v Secretary of state for Transport, ex parte Factortame Ltd (No.2) [1991] 1 AC 603 (HL)
Statutes and Statutory Instruments:
Bill of Rights 1689
European Communities Act 1972
Merchant Shipping Act 1988
Parliament Act 1911
Parliament Act 1949
Scotland Act 1998
Terrorism Act 2006
War Damage Act 1965
Government of Wales Act 1998
EU Legislation/Cases/Policies
Marleasing SA v LA Commerical Internacionale de Alimentacion SA [1990] ECR I-4325
Costa v ENEL , Case 6/64, [1964] CMLR 425
Secondary Sources
Books:
AV Dicey, An Introduction to the Study of the Law of the Constitution, (10th edition 1959, Macmillan and Company Ltd London, 1985) p.39
Newspaper Articles:
BBC News Journalist, http://www.bbc.co.uk/news/uk-scotland-11639412 , News Scotland, (Scotland, 28th October 2010).
AV Dicey, An Introduction to the Study of the Law of the Constitution, (10th edition 1959, Macmillan and Company Ltd London, 1985) p.39
Bill of Rights 1689, Article 1
Madzimbamuto v Lordner Burke [1969] 1 AC 645, 723. (Laws LR)
R v Secretary of state for Transport, ex parte Factortame Ltd (No.2) [1991] 1 AC 603 (HL)
Merchant Shipping Act 1988
Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262 (LH)
The European Communities Act 1972
Government of Wales Act 1998
Costa v ENEL , Case 6/64, [1964] CMLR 425
Equal Opportunities Commission v Secretary of State [1994] (HL)
Pickin v British Railways Board [1974] (HL)
Marleasing SA v LA Commerical Internacionale de Alimentacion SA [1990] ECR I-4325
Higher Education Act 2004
Attorney General v Jackson