Moreover, Munro takes a similar view to Dicey and also adds that although the enactments were strange (the separate entities ceased to exist afterwards), it would be by no means accurate to suggest that they created a new Parliament after 1707 as it was not a completely clean slate – old laws in some cases still applied. Consequently the 1707 Acts could not have created limitations on Parliament. Munro goes on to state that the reason parliament exists is due to custom – when asking questions such as from whence did the idea that Parliament must consist of three parts, or by what authority do Lords Spiritual, Peers and MPs sit in Parliament, the answers cannot be found in the Acts, but in custom. How can one argue that the evolving customs of our country created a limitation on our Parliament, when customs are not a document or an Act, which can set down regulations for Parliament? In this way, I believe that Parliamentary Sovereignty exists and is still intact.
More important arguments on whether Parliament is Sovereign lie in the way in which Parliament can legislate. Dicey put forward the argument that from a legal point of view “Parliament has the right to make or unmake laws whatever”, and this in itself is true. Furthermore, in law the courts are duty bound to follow legislation, and it has been suggested that perhaps the courts have a more passive role in applying and interpreting legislation. Legally, this may be true, and in fact Dicey has even stated that a law binding future Parliament’s would be valid. However, it would not be politically viable, and this is where the problem of Parliamentary Sovereignty lies – legally it is Sovereign, but this is not always the case in the political context.
A law may have legal force, but if it were inhumane and undemocratic it would perhaps have no political force. The question is could the courts refuse to follow it? Lord Irvine of Lairg has rejected this, yet it continues to be a topic of debate. One good example is that of a constitutional crisis – the courts may challenge Acts in this case, and perhaps this could lead to other examples of court interference in the future.
European Union Law is an important limit on Parliamentary Sovereignty – the European Court of Justice is the highest court in relation to Community matters and would therefore be supreme to our Parliament. This means that Parliament cannot legislate against EU Law, which puts a limit on what Parliament can do. Unless the United Kingdom withdrew, our Parliament would still have to legislate in accordance with EU Law. This highlights another important political point – even though Parliament would be legally supreme, would it be politically acceptable to withdraw from the European Union, and consequently is this limitation of Parliamentary Sovereignty due to a political factor? Furthermore, one could argue that Parliament is still Sovereign in domestic affairs.
The Human Rights Act 1998 is another important “political” 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 deliberately against the Act, there would be moral public outcry, which may lead to the political party in power to become unpopular, which most parties strive against. Therefore due to this principle it is unlikely that much legislation will go against the Act and therefore there are certain areas that “cannot” now be legislated on for political reasons. In addition to this, when legislation does contravene this Act, the courts could state the incompatibilities and scrutinise the legislation in question. However, there are continuous debates over how far the courts will call legislation into question over the Human Rights Act 1998, as evidence over the past year suggest this is not a regular occurrence.
After the decision in Pepper v Hart, it was stated that the Judiciary could use Hansard (Parliamentary debates) to help interpret legislation when a literal interpretation would lead to an absurd outcome. In my opinion, this may well be seen as a limit on Parliamentary Sovereignty because it is another aid to statutory interpretation, which can in fact get around legislation in various ways.
The idea of Judicial Review far outdates the idea of a supreme Parliament, and it can be seen as a very important limit on Parliament’s legislative powers. Its role is one of a supervisory jurisdiction, and is a part of the inherent jurisdiction of the courts, showing that the courts do have a certain amount of force against Parliament’s legislation. What Judicial Review aims to achieve is making sure that those with power and the decision makers keep within the powers, which have been granted. Therefore a law that may be perfectly legal to pass could come under review if it were against some key fundamental rights, which the courts try to protect. However, although this is the case, Parliament does not have to retract a law after it has come under this scrutiny, although it would politically be a good idea.
One final important question pertains to whether a Parliament can in fact bind its successors. As mentioned briefly above, Dicey states that any law, which attempts to bind its successors will not be effective, but that on the other hand it may well be legally valid to do so. The main difficulty is that although it can be looked upon as a limitation on Parliament, it can also be a good example of its Sovereignty. For instance, when a new Parliament comes into being, it is not limited by the Parliament that preceded it. One way of looking at it is that Parliament is therefore Sovereign within its own lifetime which does not therefore take away the fact that Parliament is Sovereign. However there are certain areas of law which in some people’s opinion clearly binds future Parliaments.
Firstly some legislation cannot be reversed once it is enacted – conferring independence upon a country is one example of an altogether irreversible process. In the Canada Act 1982, where independence was guaranteed for Canada, it was stated that no future act of the UK Parliament “shall extend to Canada as part of its law”. The Canadian courts would not give any effect to UK legislation, which attempted this, and therefore we again see that although it may well be legal to legislate in this way, it would not be politically valid. Secondly, it has been said that Parliament can in fact bind future Parliaments over the composition of the houses, or the means of succession to the throne. This was the Great Reform Act of 1832 whereby the House of Commons was reformed in order to be more democratic. This would bind future Parliaments in that the House would only be lawful if elected in accordance with the 1832 Act. This question is a difficult one to conclude, although it can be argued that at every election Parliament changes with the people, and consequently Sovereignty should perhaps apply to the Parliament of the time, otherwise it would be very easy to make irreparable damage to the future democracy of our country (one could keep a particular Parliament in power despite elections).
In my opinion, Parliamentary Sovereignty still remains intact, not only in a legal sense but also in a political way too. There have been undoubted erosions in Parliament’s power, but how much they affect the doctrine needs to be questioned, for example, EU Law is only supreme in community matters, and holds no baring in our domestic jurisdiction. Furthermore, courts are reluctant to call into question legislation, and in most instances has no power to rule against law, meaning that even politically Sovereignty still exists. This biggest argument is that when Dicey introduced the idea of “Parliamentary Sovereignty” he meant it to be an expressly legal doctrine. In this way Parliament is of course still Sovereign – legally they can legislate on what they wish, whether it has political ramifications or not.
BIBLIOGRAPHY
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Studies in Constitutional Law – Colin R Munro (1st Ed.)
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The Law and Parliament – D Oliver and G Drewry
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Cases and Materials on Constitutional and Administrative Law – M Allen and B Thompson
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Constitutional and Administrative Law – AW Bradley and KD Ewing
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The English Legal System – G Slapper and D Kelly
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An Introduction to the Study of Constitutional Law - Dicey
Studies in Constitutional Law – Colin R Munro (1st Ed.)
Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590
An Introduction to the Study of Constitutional Law - Dicey
The Law and Parliament – D Oliver and G Drewry
Pepper v Hart [1993] AC 593
The English Legal System – G Slapper and D Kelly
Constitutional and Administrative Law – AW Bradley and KD Ewing Page 67
Constitutional and Administrative Law – AW Bradley and KD Ewing Page 67