Under the Government of Wales Act 1998 the National Assembly for Wales can pass secondary legislation in devolved areas. Primary legislation remains under the control of Westminster Parliament in devolved and reserved areas.
The progress of devolution in Northern Ireland is subject to the peace process. The Northern Ireland Assembly can make primary and delegated legislation in areas that are transferred. The UK parliament continues to legislate in excepted and reserved areas which unless the Northern Ireland Act 1998 is amended will remain under the Westminster Parliaments control.
It is argued that devolution is not evidence of the fragmentation of parliamentary supremacy. The powers that are delegated through devolution are limited and remain under the overall control of Westminster Parliament.
Perhaps the most influential development in a loss of national sovereignty and a fragmentation of Parliamentary supremacy has been the UK’s Membership in 1973 to the European Union. Since joining the European Union, laws tend to be made at a European level rather than a national level. Although parliamentary supremacy may still exist it is competing with the supremacy of community law.
The European Court of Justice is a clear example of the erosion of Parliamentary supremacy as it has the power to exercise judicial review over UK law. If it found that UK law is inconsistent with the treaties then this would automatically annul the law, since the European Communities Act 1972 in Section 2(4) states:
‘…any enactment passed or to be passed, other than one contained in this part of the Act, shall be construed to have effect subject to the foregoing provision’
This provides a central question when discussing whether parliamentary sovereignty still exists. If a conflict arose between UK law and EU law, which one would the courts choose to use, if UK law was chosen then parliamentary supremacy is still in existence, however if they were to choose EU law then parliament can not possibly be supreme. The courts chose to ignore this question for many years until the landmark case R v Secretary of State Transport ex parte Factortame. Factortame, a Spanish fishing company appealed against the restrictions that the UK government placed upon them by the Merchant Shipping Act 1998 in UK courts.
In 1990, as legally required the House of Lords ruling that they did not have the power to suspend Acts was referred to the European Court of Justice. The European Court of Justice ruled that national courts could ignore laws which contravened EU law. Therefore, the House of Lords ruled in favour of Factortame and the Merchant Fishing Act 1988 was struck down.
This case clearly shows erosion of Parliamentary supremacy as the English Law courts have not acted in favour of a law created by Parliament. However we can interpret this in two ways, firstly as not being evidence of the fragmentation of parliamentary supremacy as parliament could repeal the European communities act. Although this is unlikely to happen as it would result in a loss of political sovereignty. For the UK to leave the EU it would be complex, economically damaging and ruin the reputation of UK within Europe. Secondly, this case is evident in showing that there is fragmentation of parliamentary supremacy, it is not the all powerful institution it was prior to joining the European Union.
Sir William Wade referred to this case as an example of a constitutional revolution:
‘The parliament of 1972 had succeeded in binding the Parliament of 1988 and restricting its sovereignty, something that was supposed to be constitutionally impossible’
Whether Sir William Wade is correct that there has been a revolution within the UK constitution there is increasing uncertainty regarding parliamentary supremacy with British membership to the European Union.
Similarly Parliament may bind future parliaments by changing the composition of the Houses of Parliament or the throne. This was the case in 1832 when Parliament reformed the House of Commons as later Parliaments were bound by the 1832 Act and any changes had to be decided by the new House.
However there is also evidence to suggest that parliament does follow the rule in not binding a successor or predecessor. Stated by Lord Langdale in Dean of Ely v Bliss that ‘If two inconsistent Acts were passed at different times, the last must be obeyed.’ This is the case in Vauxhall Estates Limited v Liverpool Corporation whereby the claimant claimed compensation for land acquired from them on the basis of the Acquisition of Land (Assessment of Compensation) Act 1919 as this was more favourable compared to the Housing Act 1925. The 1919 Act stated in s.7(1):
“The provisions of the Act or order by which the land is authorised to be acquired….shall….have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect…..”
It was held that the later act should be used and the argument was rejected that the 1919 parliament had attempted to bind its successors. Maujham LJ in the similar case of Ellen Street Estates Ltd v Minister of Health stated that ‘The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation’. These two cases both show the effect of implied repeal and support the test that Parliament may not bind its successors.
The introduction of the European Convention of Human Rights in to UK Law by the Human Rights Act 1998 has allowed for courts to gain more power when applying the law. The Human Rights Act has given effect to convention through use of statutory interpretation under section 3. If such interpretation is not feasible then under section 4 of the Human Rights Act, the court has the power to make a declaration of incompatibility, if primary legislation conflicts with the rights given in the European Convention for the protection of Human Rights and Fundamental Freedoms (1950). It can therefore be argued, that the Human Rights Act infringes the third of the tests for Parliamentary supremacy, as the Court of Law can question an Act of Parliament. On the other hand, parliament still has supremacy as parliament can only change and make the legislation, not the courts. This is emphasised by Lord Nicholls in the case of Re v S ‘Interpretation of statutes is a matter for the courts; the enactment of statutes, are matters for Parliament’.
In conclusion there is more evidence to show that parliamentary supremacy is being fragmented mainly through membership to the European Union. As discussed there is both evidence to satisfy and conflict the three tests for Parliamentary Supremacy. However, it can still be argued that Parliament is still a supreme body as it has the power to repeal an Act of Parliament or against the European Communities Act 1972. Leaving the European Union would be immensely damaging to the political status of the UK
As recent reports suggest proposals for pan- European crimes would mean:
‘that for the first time in legal history, a British government and Parliament will no longer have the sovereign right to decide what constitutes a crime and what the punishment should be’
Prior to these legal developments it was argued in political science if parliamentary supremacy was split in to legal and political supremacy; legal supremacy has not been lost as Parliament retains all its theoretical powers. However, the recent developments that continue to diminish ‘the right to make or unmake any law whatever’ Dicey’s concept of Parliamentary supremacy is undoubtedly weakening.
Bibliography
Bradley AW and Ewing KD. (2003) Constitutional and Administrative Law. 13th Edition. Pearson Education Limited
Bogdanor V (2001) Devolution in the United Kingdom 2nd Edition. Oxford University Press.
Jones, B and Thompson, K. (1996) Garners Administrative Law. 8th Edition. Butterworths, London.
Wade, W and Forsyth, C. (2004) Administrative Law. 9th Edition. Oxford, Oxford University Press.
Wadham, J et al. (2003) Blackstones guide to the Human Rights Act 1998. 3rd edition. Oxford, Oxford University Press.
Killbrandon Report, para 543
Browne, A (2005) Brussels publishes list of the first pan- European crimes. The Times, 24 November 2005 pg 4