The judiciary may no longer challenge the ‘substantive validity’ of legislation, i.e. declare void any legislation contrary to natural law, impossible to be performed or adverse to the law, as was common prior to the eighteenth century. Nor can it ‘put to trial’ any legislation on the accusation that it was improperly passed, what is referred to as ‘procedural irregularity’, Madzimbamuto V. Lardner-Burke [1969] 1 AC 645. They are to accept legislation on its seemingly valid front. In substance, if parliament chose to do anything unconstitutional such as certain things against which moral, political and other reasons are strong; the courts could not hold the Act of parliament invalid.
As each successive parliament is considered supreme in its own time, it therefore has the power to make or repeal any legislation, in the absence of express repeal, and in the event of inconsistency between later legislation and earlier law (either statute or common law) it is the later statute that prevails. This is the Doctrine of implied repeal where an earlier Act of parliament must give way to a later one if the two cannot be reconciled as applied in Vauxhall Estates v Liverpool Corporation [1932] 1 KB 733.
Professor Dicey’s belief that parliament’s legislation capacity is not subject to legal restraints is shown by its inability to legislate extraterritorially. Events such as the cession of territory or the conferment of independence are naturally regarded as irreversible. After parliament passed the Statute of Westminster 1931 S.4 concluded: ‘No Act of parliament of the united kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a dominion as part of the law of that dominion, unless it is expressly declared in that Act that dominion has requested, and consented to, the enactments thereof.’ As Sir Jennings a well-known hypothesis said if parliament were to make smoking in the streets of Paris an offence, French courts would ignore it, English courts, if a guilty Frenchman could be apprehended while visiting Folkestone, would enforce it. What the limitation on parliament amounts to is simply that courts not subject to the United Kingdom parliament will not enforce its law.
The parliament Act 1911 makes it mandatory for a general election to be held at least once every five years. The same statute can ‘reinterpret’ the meaning of parliament. ‘. . . a bill rejected by the House of Lords in two successive sessions may go for the Royal Assent after one year has elapsed’ parliament for such a bill would consist of the House of Commons and the Monarch- two elements rather than the established three, i.e. the House of Lords has been omitted. Therefore parliament has achieved the power, in actuality, to regulate itself.
Parliament can either legislate or decide those persons who are, and those who are not, authorised to sit and partake in its proceedings. The House of Commons (Disqualification) Act 1975 keeps track of people who are disqualified from membership and can also control succession to the throne under the Declaration of Abdication Act 1936.
Joseph Raz an American legal philosopher, in his article The Rule of Law and its Virtue (1977) 93 LQR 195, maintained that laws should be prospective not retrospective, parliament need not conform to the philosophy simply because it is supreme. This supremacy in turn, allows parliament to legislate retrospectively, as manifest in the cases of R. v. Londonderry Justices ex parte Hume [1972] NI 91 and Burmah oil co. Ltd. V. Lord Advocate [1965] Ac 75, where the War Damages Act 1965 was introduced to relieve the government from having to pay war damages arising from destroyed property during World War II.
International law does not bind parliament but does have a persuasive force on the UK parliament. Any inconsistency between a domestic statute and a principle of international law must be resolved with the Act of parliament as in Cheney .v. conn [1968] 1 All ER 779.
There are many restrictions on parliament such as England’s Act of Union with Scotland 1707 and the Act of union with Ireland 1800. These Acts merge the three countries to create the UK and which Westminster parliament exercises its jurisdiction. Although parliament may repeal all other legislation It has been maintained the supremacy does not extend to the Acts of Union, because they are major statutes which gave effect to the political settlements which brought the state and its existing constitutional arrangements into existence.
The transfer of authority from parliament to Scotland, Northern Ireland and Wales does not pose any real threat to the supremacy of parliament. The Scotland Act 1998 can be repealed at any time, the secretary of state for Wales will remain accountable to parliament in respect of significant issues and the Northern Ireland assembly remains subject to the will of parliament at Westminster.
Membership of the UK to the European Economic Community (EEC) has had a profound effect on the sovereignty of parliament. The Treaty of Rome established the EEC 1957, re-named the European Union (EU) in 1993. Prior to membership in 1973, parliament passed the European community Act (ECA) 1972 accepting the following modifications, inter alia, to the constitution of the UK:
- Section 2 states that Acts of parliament, both past and future, should be interpreted in conformity with community law, in effect: ‘every Act must be read subject to the tacit condition that it takes second place to community law’ (L.Q.R. 1991, 107, Jan, 1-4)
- That the courts of the UK should follow guidance and decisions from the European court of justice (ECJ) when attempting to construe the meaning, effect or validity of any community instrument (s.3 (1) (C.L.B. 1992, Apr, 746-749)
If any ambiguities arise in the domestic law when it is being explicated, s.2 (4) of the 1967 white paper on membership and the case of Macarthy’s Ltd. .v. Smith [1979] 3 All ER 325 prescribe that it should be resolved so as to give effect to community law. This is reinforced by the rule formulated in Simmenthal SPA .v. Italian Minster of Finance [1976] EUR 1871, namely that the municipal courts should bestow primacy to EU law. It is arguable, however, what the actual essence of s.2 (4) is as, on face value, it suggests that any municipal legislation inconsistent with EU law should be repealed whilst the judiciary view s.2 (4) as a matter of constructing widely. The surrender of sovereignty that has evidently transpired is no longer a matter of debate by parliament as this was an inherent condition on membership to the EEC and this was elucidated in Costa. v. ENEL [1964] ECR 585.
Due to membership to the EU, it appears now that parliament can actually bind future parliaments in relation to legislation. ‘The Treaty of Rome and any other treaties concerned with it shall have direct effect in the UK without any special Act of parliament being passed’ (C.L.B. 1992, Apr, 746-749) implies that membership to such treaties cannot be withdrawn because there are statutory instruments via which to repeal them, therefore this will bind future parliaments.
By joining the EEC, a new order has been created in which parliament can no longer repeal any law whether implied or by expressly which should come in conflict with ECA 1972.
In situation where a pre-1973 Act of parliament differs from community law, this is to be interpreted pro-EU law via use of the Doctrine of Implied Repeal to the extent of the inconsistency. This scenario is obviously opposed to when a post-1973 Act of parliament ‘offends’ against community law, as in R. v. Secretary of State for Transport, ex parte Factortame Ltd. [1989] 2 CMLR 353
Here, the Westminster parliament enacted the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulation 1988 to safeguard the interests of British fisherman. However it emerged that it was in conflict with community law and offended by discriminating against the nationals of other EEC members on the grounds of nationality. On its third referral to the House of Lords in 1990 it was held that community law must prevail over domestic legislation and as a result the operation of the Merchant Shipping Act 1988 was temporarily suspended.
Prior to 2nd October 2000 UK citizen were protected in the case of human rights mainly by the European Convention on Human rights. To use the convention was a very long-winded process and meant exhausting all possible national channels first. Which led to the passing of Human rights Act 1998 which became a further restriction on parliamentary supremacy. The Act outlined that domestic legislation must comply with it and under section 3 of the Act obliged the judiciary to interpret legislation compatibly with the conventions rights. The position with primary legislation is that if divergent to the convention rights, the legislation remains effective but the courts may issue a ‘declaration of incompatibility’ under section 4 of the Act. Therefore, it is for parliament to decide whether to amend the legislation to remedy the incompatibility. Parliament is in breach of the convention by choosing to derogate from Article 5 (3) [Which entitles a person who has been detained to be brought promptly before a court] the reason for this is to allow the longer detention of suspected terrorist under the prevention of Terrorism Act 1989. The recent issues of asylum seekers under Article 3 can not be derogated, because if the UK decide not to take in asylum seekers they can argue that the UK is in breach of the convention and take the matter to European Court of Human Rights to get it enforced. If parliament chooses it can repeal the whole Act causing a catastrophe or just accept a constraint on parliament.
Moral viewpoints can clearly have an enormous influence on the making of laws, and some people would argue that the criminal law represents a common moral position. Major moral positions are clearly represented in the law, e.g. in serious crime such as murder, rape, robbery. In other areas the law may appear to be based on moral positions but ones not accepted by everyone. An obvious example of this is the legalization of abortion under the Abortion Act 1967, the morality, of which is contested by groups such as LIFE and the Association of Lawyers for the Defence of the Unborn. Moral contradictions can also appear in the law so that while abortion can be carried out legitimately, the courts have refused actions for ‘wrongful life’ in McKay v Essex AHA (1982) because it is contrary to the principle of the sanctity of life. Similarly doctors have been prosecuted for openly practising euthanasia as in R v Cox (1992) but withdrawing feeding so that a patient in a permanent vegetative state would die was accepted in Airedale NHS Trust v Bland (1993). Other contradictions involve sexual morality. The House of Lords in R v Brown (1993) held that a group of homosexual sadomasochists could not consent to harming each others’ genitalia as it was not in the public interest to allow such behaviour. However, the court of Appeal in R v Wilson (1996) held that a wife could consent to her husband branding his initials in her buttocks with a hot knife.
Which goes to say parliament is not sovereign it is influenced by the views of the electorate and going against them it will label its self a tyrant an elected dictator.
Parliament supremacy has not been completely extinguished by the membership of the EU and other implications but has been limited. Parliament can became completely sovereign again by passing an Act of parliament declaring its withdrawal from the EU but such an action may result in political and legal repercussions, which will be very embracing. Another way parliament can retain power would be to block any proposed reforms or laws but if she continues to act dishonourable towards community law she will face many political, legal and moral implication which may result in her being thrown out of the EU or tightly controlled therefore becoming less sovereign.
