Is the UK Parliament still supreme with regards to enacting Acts of Parliament? Discuss.

The idea of parliamentary sovereignty is that Parliament (or strictly, the Queen in Parliament) can make or unmake any law on any subject whatever, without any legal restriction. This idea was generally accepted as reality a hundred years ago, or even fifty years ago, but there must now be some doubt as to its truth. Parliament is certainly restricted by the UK's membership of the European Union, and other international treaties such as the European Convention on Human Rights may also have put some limits on its freedom to legislate.

Nevertheless, the powers of Parliament are undoubtedly considerable. An Act of Parliament can determine the succession to the Crown, for example, and the Act of Settlement 1700 (which is still in force) transferred the line of succession from James II to Princess Sophia and her Protestant descendants. Similarly, the Abdication Act 1936 recognised the abdication of Edward VIII in favour of his brother who became George VI. Parliament can also alter its own composition and powers, as it did by the Parliament Act 1911 (which removed the veto powers of the House of Lords) and the Life Peerages Act 1958 (which provided for the appointment of life peers with full voting rights).

An Act of Parliament can even purport to have effect outside the United Kingdom. The Continental Shelf Act 1964 asserted British jurisdiction over the sea bed well beyond the limits of the territorial sea, and the War Crimes Act 1991 made it an offence triable in an English court for a foreign national to commit murder or other war crimes against other foreign nationals in a foreign country.

The Government initiates most legislation, though the many influences and pressures for legislation are discussed in a later chapter. The general policy and broad outline of the proposed legislation are discussed and agreed among a large or small group of ministers, civil servants and others, and a Green Paper (purely consultative) or White Paper (containing fairly firm proposals) may be published to assist the process. The sponsoring Department then instructs Parliamentary counsel, who prepare a draft Bill for approval by the Cabinet's legislation committee. (Law Commission reports often contain draft bills, which can be taken forward as they stand.)

An Act of Parliament always starts life as a bill. Most bills are public bills intended to apply (in principle) to all people in any part of the country, such as the bills which eventually became the Theft Act 1968 or the Children Act 1989. Even the abortive Wild Mammals (Hunting with Dogs) Bill and Sexual Offences (Amendment) Bill were public bills, because although only a minority of people hunt foxes or commit sexual offences, the bills were intended to create generally applicable law.

The First Reading of a bill is purely formal and normally takes place without debate. First Reading is essentially a public announcement that the bill has been introduced; soon after the first reading has taken place, copies of the bill are available for members to read (and for the wider public to see via the Internet). Many private members' bills never get beyond this stage, but at least the MP proposing the bill can make a short speech saying why s/he feels the legislation is needed and drawing the matter to public attention.

The Second Reading (which may be ...

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The Second Reading (which may be hotly contested) follows a discussion of the general principles of the bill. Traditionally, Second Reading was always taken on the floor of the House, but in recent years some uncontroversial bills (e.g. Law Commission measures) have been referred to a Second Reading Committee (and Scottish Bills to the Scottish Grand Committee before devolution took them out of Westminster altogether); the House then accepts the Committee's report and passes a Second Reading motion without a formal debate.

After Second Reading comes the Committee Stage, usually taken "upstairs" in a Standing Committee in the Commons, or as a "Committee of the Whole House" in the Lords. In Committee the clauses of the bill are examined individually and detailed amendments are considered. The bill’s opponents, seeking to emasculate or destroy it, propose some amendments but many are technical improvements and clarifications proposed by the government itself.

When the Committee Stage is complete the bill moves into the Report Stage, when the House as a whole reviews the amendments made (and those rejected) by the Committee and accepts or reverses the Committee's decisions. The Report Stage is normally followed immediately by the Third Reading, in which the final version of the bill as amended is approved and passed on to the other House.

The second House then goes through the same stages as the first. If the second House makes any amendments, either in Committee or on Report, the amended bill (once it has completed its passage through the second House) must be returned to the first House for further consideration. The first House may accept the amendments - over 90% of Lords' amendments are normally accepted by the Commons - or may restore the bill to its original form, in which case it must go back to the second House again, and so on until one House gives way. By convention, the Lords do not normally insist on amendments which the Commons reject, particularly on matters of government policy, but in 1998 the Lords refused to accept the government's preferred "party list" system and the European Parliamentary Elections Bill went to and fro almost a dozen times before the end of the Parliamentary session.

When a bill has been passed in identical terms in both Houses, it is presented for the royal assent, when Commissioners acting for the Queen indicate her approval of the proposal by the Norman French phrase "La Reyne le veult" (the Queen wishes it). If the Queen wished to signify disapproval, the tactful phrase would be "La Reyne s'avisera" (the Queen will consider it), but the royal assent has never been refused to any bill passed by both Houses since 1704 (when Queen Anne refused her assent to the Scottish Militia Bill), and most constitutional lawyers now believe that in any but the most extraordinary circumstances the sovereign is bound to assent.

Without any doubt, the greatest limitations on Parliamentary sovereignty now arise from membership of the European Union. There is room for debate as to whether this is a good or a bad thing, and/or whether the advantages of membership outweigh the perceived disadvantage of lost sovereignty, but any sensible person must surely admit that Parliamentary sovereignty has been curtailed. There are three main ways in which this is evident.

First, there is now an external body (or bodies, perhaps) competent to make laws affecting the United Kingdom, which are applied by the English courts irrespective of the wishes of Parliament.

United Kingdom v Commission [1998] 2 CMLR 1125, Times 6/5/98, ECJ

The UK brought an action to annul Commission Decision 96/239/EC, addressed to the UK, and banning the export of any beef products from the United Kingdom. Dismissing the action, the Court said the Decision had been made within the Commission's powers to protect health, and was not disproportionate to the aim to be achieved.

Second, the United Kingdom is obliged to legislate to implement obligations arising from EU membership.

Marshall v Southampton Health Authority [1986] 2 All ER 584, ECJ

P was forced to retire at the age of 62 from her employment with the National Health Service. This was a breach of the Equal Treatment Directive 1976, but the Sex Discrimination Act 1975 excluded matters related to retirement from its provisions. The Court said P was entitled to succeed, and could use the provisions of the Directive against her employers (who were an emanation of the state) because the U.K. had not properly implemented the directive.

Section 2(2) of the European Communities Act 1972 allows the government to legislate by Order in Council or by Statutory Instrument to implement European obligations; such secondary legislation (subject to certain limited safeguards) can even amend or repeal Acts of Parliament.

Sex Discrimination (Gender Reassignment) Regulations 1999 s.2(1)

After section 2 of the Sex Discrimination Act 1975 ... there shall be inserted the following section ... [extending the scope of the Act to cover discrimination against transsexuals. The Regulations (SI 1999/1102) were made by the Secretary of State for Education and Employment to give effect to the decision in P v S.]

Third, and perhaps most important, parliament is no longer free to legislate without restriction in areas governed by Community law. An Act of Parliament incompatible with any requirement of European law can and must be declared invalid and ineffective to the extent of that incompatibility.

Equal Opportunities Commission v Secretary of State [1994] 1 All ER 910, Times 4/3/94, HL

The EOC sought a declaration that certain provisions of the Employment Protection (Consolidation) Act 1978, dealing with redundancy conditions for part-time workers, were indirectly discriminatory and therefore incompatible with European Law. The House of Lords said unanimously that the Divisional Court had the power to grant such a declaration, and that the declaration sought should indeed be granted.

Van Gend en Loos v Netherlands [1963] CMLR 105, ECJ

PP objected to the imposition of certain customs duties, which they claimed were in breach of the Treaty. The Court said an individual (or a corporation) can rely on the provisions of the Treaties as against a national government, and can enforce its rights there under in a domestic court.

A further limitation on sovereignty may arise from the Human Rights Act 1998, which makes it unlawful for any public authority to act in a way incompatible with "Convention rights". These rights (as set out in the European Convention) include

Right to life
Prohibition of torture
Prohibition of slavery and forced labour
Right to liberty and security
Right to a fair trial
No punishment without law
Right to respect for private and family life
Freedom of thought, conscience and religion
Freedom of expression
Freedom of assembly and association
Right to marry
Prohibition of discrimination
Protection of property
Right to education
Right to free elections

In this case, reserving to Parliament the legal power to legislate preserves Parliamentary sovereignty contrary to Convention rights if it thinks it appropriate. Where an Act of Parliament conflicts with Convention rights, a judge must apply the Act but may make a formal declaration of incompatibility which will "almost certainly" lead Parliament to change the law.

R (H) v Mental Health Review Tribunal (2000) Times 2/4/01, CA

A compulsory patient H in a psychiatric hospital applied for his release, but his application was refused because he could not show (as the Mental Health Act required) that he was no longer in need of treatment. The Court of Appeal said this reversal of the burden of proof was a violation of H's right to liberty under Art.5 of the Convention on Human Rights, and made a declaration of incompatibility.

Campbell & Fell v United Kingdom (1984) 7 EHRR 165, ECHR

A number of prisoners involved in a prison riot were charged with disciplinary offences under the Prison Rules, and were sentenced by the Board of Visitors to a substantial loss of remission. No legal representation was permitted at the disciplinary hearing, and subsequent consultations with the prisoners' solicitors took place in the presence of a prison officer. The Court said this was in breach of Art.6, guaranteeing the right to a fair trial.

The Government subsequently changed the Prison Rules to allow legal representation in cases where the prison authorities could impose a substantial loss of remission.

A further limitation of Parliamentary sovereignty, some might say, is the use of referenda to decide major constitutional issues. The first national referendum in 1974 asked whether the United Kingdom should remain in the European Community, and the Labour Party have all but promised a referendum on the single currency within the next five years. (In between times, there have been devolution referendums in Wales and Scotland.) Although Parliament retains the right to decide when and on what issue a referendum is to be held, and could in theory ignore the result, the reality is that there is a temporary transfer of power from parliament to the populace at large

Claire Spencer Page