So we could say that ultimately the European Union is the supreme law making body within Britain, however this is not the case as we joined the EU (EEC as it was then known) in 1973 as a result of a statute in 1972. Therefore if it so wishes Parliament can denounce Europe and pull out of the union. So to summarise this point we can say that despite the restrictions applied, Parliament is still supreme over the EU.
Another element that restricts parliamentary supremacy is Delegative Legislation, this is where power is devolved from Westminster to local councils, and bodies (as well as Britain’s Parliament, and Wales’ Assembly). Therefore removing some of the power Parliament has. However we can say that this is necessary to grant this power, in order for communities to function correctly, and law making to operate at a local level.
It is also necessary for power to be devolved from Parliament in this way in order for PARLIAMENT to function, as more pressing matters must be dealt with as opposed to, for example “how much someone will be fined if their dog fowls the pavement in Sneyd Green”.
Therefore we can say why Delegative legislation does devolve some of Parliaments power, it is indeed necessary, and as Parliament has control over taking those powers back, we can state that it does, still, remain supreme.
The third restriction imposed on parliaments sovereignty is that of the Courts. In theory we can state that parliament always has power over the courts, and that the courts “inforce” the laws made by Parliament. Effectively we can call the courts a restriction as there are two ways in which they can pass out parliamentary laws:
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The Very literal approach – where every word is taken to mean exactly what it says, for example Fisher .vs. Bell (1961). Where the defendant was displaying a “flick knife” in the window of his shop with a price tag, but, when question he claimed he was merely displaying it and would have refused any offers made on the item. He was found innocent as literally to sell something is an “invitation to treat” that is making an offer, and the seller may refuse that offer if he so wishes.
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The more flexible approach – where judges seek to establish the meaning of the law, then apply it to the facts of the case.
One could say that this is a restriction as it is down to the judges, opinion over what Parliament means, therefore, we establish that the courts may not always be applying the law, as Parliament so wished them to.
Another restriction imposed on Parliamentary supremacy is Human rights. It is argued that there are certain fundamental rights that are possessed by every human being. Logically, one might argue that any law which took away such rights would be invalid. In British Law this is not the case, Parliament could pass any law it wished to pass – however immoral that law might be, and, if the statute is clear, the courts would be obliged to apply that law.
The Human Rights Act (1998) came into force in October 2000. This delay in bringing an Act into effect is very common. In this case, the time between the Act being given the Royal Assent and its becoming law was considered necessary to allow judges to familiarise themselves and be trained on the new laws, and also for government departments to consider the implications of the Act for their areas of responsibility.
The Act makes the European Convention on Human Rights part of English law. It does not give it a status that is any higher than an ordinary Act of Parliament. A person who believes that his or her rights under Convention have been breached by any public authority may sue and could be awarded compensation, but the main aim of suing would be to obtain a declaration from the court that the public authority had acted wrongly. For example, the convention gives a right to a fair trial. A person who believed they had been denied that right in a criminal case because the procedural rules governing their case operated unfairly against them might sue under the Human Rights Act. What the claimant really want’s is their conviction overturned, and perhaps a change in the rules so that others can have fair trials.
If the court found that a domestic statute contained a provision that amounted to a breach of the Convention , the Human Rights Act says that a judge may point out the conflict. The appropriate minister then has the power to change the statute using an Order in Council (A type of Delegated legislation) The minister can choose not to change the domestic law.
Section 19 of the Act says that all Bills must have with them a statement saying either that the Bill is compatible with the Convention or that it is not and that the intention is to pass incompatible legislation.
This means that the Human Rights Act does not prevent Parliament passing laws that take away fundamental human rights. All it does is to require Parliament to address the issue of what it is doing. As Lord Hoffman said in the case R .vs. Secretary of State for the Home Department, ex parte Simms and another.(1999) :
“Parliamentary Sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act will not detract from this power.
The constraints it exercises over Parliament are Political not Legal.”
Probably the least important, and final restriction Parliament have over their supremacy is that of Political Reality. The House of Commons is made up of people who are voted into power, the House of Lords now has little real power. The term ‘Parliamentary supremacy’ therefore tends to mean in practice supremacy of the political party having for the time being a good majority in the House of Commons. The leaders of that party, The Cabinet, decide on what legislation will be introduced. Members of Parliament are instructed when and how to vote by the party whips. The limit on what Parliament can do is therefore in reality set by the views of the Cabinet as to the best political decision. Having said that, a great deal of law is not at all political in content and similar rules would be constructed no matter which political party was in power.
To Conclude, One can say that there are restraints on Parliament, and these do affect its supremacy, and sovereignty. However, in my opinion we can say that although these restrictions are there, Parliament remains the supreme law maker and highest body within this country even over Europe. I believe this as Parliament still has the power to pass a statute allowing us to leave the EU, until this is taken from Parliament, I feel it is still the most powerful body in this country.
