Fundamental Norm Of Parliamentary Sovereignty Law Public Essay

Published Date: 02 Nov 2017

Do you agree? Explain fully the reasons for your answer.

Introduction

The doctrine of Parliamentary sovereignty rationalised by Dicey states that Parliament has the power to make, unmake or amend a law through enacting Acts of Parliament and that eternal bodies, such as courts, cannot contest such prerogatives [1] . With the British state having gone through many changes (that Dicey could not have predicted), particularly in the last half century, does his theory of Parliamentary sovereignty still holds true in today’s context? As said by Lord Steyn in the Jackson [2] case," The classic account given by Dicey of the doctrine of supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom (UK)." [3] This essay will explore the developments of Parliamentary sovereignty since Dicey’s time, focusing mainly on three significant changes to the British state namely, the joining of the European Union (EU), devolution of Scotland and the enactment of the Human Rights Act 1998 (HRA).

Parliamentary sovereignty according to Dicey denotes that in English Law, a statute is the highest source of law and the Queen in Parliament may make or unmake whatsoever law. This also constitute that no other body may override any Act of Parliament. As observed by Goldsworthy," What is at stake is the location of ultimate decision-making authority- the right to the ‘final word’- in a legal system. [4] " Parliamentary sovereignty has been refined further, as in Pickin [5] , where then House of Lords (HOL) held that the courts are no longer entitled to examine proceedings in Parliament.

Furthermore, Dicey also states that Parliament ‘may not bind its successor [6] ". Wade resonates closely to Dicey’s view of ‘no entrenchment’ as seen in "The Basis of Legal Sovereignty [7] ", where he pointed that the courts are constitutionally bound to give effect to the most recent Acts of Parliament should two Acts conflict hence it is impossible for Parliament legislation to be entrenched. Whenever a new Acts of Parliament is legislated, Parliament will often include a list of older Acts to be repealed, this process is known as express repeal. Should the Parliament fail to explicitly repeal an older Law, it is the courts constitutional duty to disregard the older law that is not consistent with the latest statute. This is the concept of implied repeal which is endorsed in Ellen Street Estates Ltd [8] . In this case Maugham LJ in the Court of Appeal ruled," Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation [9] ." In a more recent case, the case of Thoburn [10] , Laws LJ stated that "Parliament cannot bind its successors by stipulating against repeal [11] " and "cannot stipulate against implied repeal any more than it can stipulate against express repeal. [12] "

However, there are many commentators such as Jennings and Heuston who disputed Wades’ view and indicated that in certain circumstances Parliament can bind its successors. This is regarded as the ‘new view’ of parliamentary sovereignty which content that Parliament could lay binding conditions concerning how and in what form legislation is to be enacted. [13] This still limits Parliament from binding future legislators as to what legislation they may enact. Though this theory has not been fully tested in the courts, there were some obiter support for the new view in the Jackson case. Baroness Hale, "If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, it may very well be that it can also redefine itself upwards, to require a particular parliamentary majority or a popular referendum for particular types of measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed. [14] " Lord Steyn was more certain, specifying that "Parliament could for specific purposes provide for a two-thirds majority in the House of Commons and the House of Lords [15] " and went on to cite Heuston work [16] . Though there is still no UK judgement regarding Westminster Parliament power to entrench legislation, the obiter comments in Jackson shed some light to that view; it is important to note that the decision itself in Jackson does not correspond with Wade’s view of Parliamentary sovereignty.

European Union

UK accession to the European Community (EC) has posed one of the biggest challenges to the doctrine of legislative supremacy in recent years. The principle of supremacy of EU law was clearly established in Costa [17] , which held that EC law cannot be overridden by domestic legal provisions. The court held that the Treaty of Rome created "its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member State and which their courts are bound to apply. [18] "

However, in the context of British constitutional law, the domestic law requires treaties to be incorporated by means of an Act of Parliament to be regarded as national law. To satisfy this condition, the UK enacted the European Communities Act 1972 (ECA).

Section 2(1) of this Act provides that

"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly."

S2 (1) can be deemed as the avenue in which EU law enters the domestic system.

Meanwhile, S2 (4) states that "any enactment passed or to be passed… shall be construed and have effect subject to the foregoing provision of this section." This implies a priority that in the event of a conflict, EU law takes precedence. However it is important to also note that when these provisions were drafted, there is Parliament acknowledge that they might one day repeal the Act, ending the incorporation of EC law in UK.

It was unclear what the courts will do should Parliament legislated inconsistently. This doubt was cleared in Factortame [19] , which is a case brought by Spanish fishing-boat operators claiming that their rights under EC law was breached in certain provisions of the Merchant Shipping Act 1998. The CJEU held that the nationality requirements in the Act were not compatible with Art 49 [20] . In the meantime, as it was foreseeable that the ruling will take some time, which will threaten the livelihood of the claimants, the claimants seek the suspension of the Act in the British court. The HOL considered that the traditional doctrine of Parliamentary sovereignty entails that primary legislation should never be set aside. [21] However, the CJEU raises the issue of the supremacy of the EU law, which requires the Law Lords to ignore any national rule or principle (in this regard the doctrine of Parliamentary sovereignty) that will prevent the court from exercising the Community Law. Hence, the HOL took unprecedented step in issuing an injunction on the Merchant Shipping Act to allow the claimants to exercise their rights protected under the Treaty. [22] This was further clarified in an EOC [23] case later that the UK courts can permanently dis-apply Acts of Parliament that conflict with EU law. In the case of Factortame, Lord Bridge observed that the supremacy of EU law was "well established in the jurisprudence of the CJEU long before the United Kingdom joined the Union", such that "whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary."

The ‘new view’ can rationalize the status of EU law in the UK. [24] They justified Parliament sovereignty stating that the ECA can be interpreted to a formal requirement that the Parliament have to expressly indicate its intention should they wish to legislate contrary to EU law. The absence of such expression explains Parliament’s failure to revoke the claimants’ EU law rights. This can be seen in Thoburn [25] where it was held that constitutional were immune to implied repeal. Hence Parliament still remains truly sovereign in the substantive sense; this analysis, though compliant with the idea of Parliamentary sovereignty, lacks reality.

Human Rights Act 1998

The HRA posed a second challenge to the doctrine of Parliamentary sovereignty. The HRA was enacted to give domestic effect to the European Convention of Human Rights (ECHR) through incorporating some of its Articles.

The relationship between this Convention rights and Parliamentary sovereignty can be reconciled through section 3 and 4 of the HRA. Section 3 provides that "so far as it is possible to do so, primary legislation … must be read and given effect in a way which is compatible with the Convention rights." This entails the judges, if plausible, to interpret statute to conform to Convention rights. This process though seems quite straightforward can be controversial as seen in cases such as Ghaidan [26] . In this case, it is contested whether the Lords took a more activist approach of rewriting the legislation rather than reinterpreting. [27] 

Section 4 provides that if such an interpretation is impossible, the court may grant a new remedy, specially created by the Act, called a "declaration of incompatibility." A declaration of incompatibility is a remedy which is merely declaratory of the fact that in the court’s view a statute as incompatible with a Convention right. Section 4(6) provides that a declaration of incompatibility "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given." The declaration of incompatibility revolves around politics rather than legal grounds, in that Parliament will review the provision and decide if they will amend or continue with the affected legislation. Should the Parliament decide to continue to authorise the legislation that contravene the Convention rights, no domestic court or tribunal may set aside such legislation notwithstanding the incompatibility. Thus it can be said that the HRA is carefully designed to introduce ECHR fundamental rights without affecting the validity of the doctrine of Parliamentary sovereignty.

Devolution

Lastly, in relation to devolution, this section will concentrate on Scotland as more legislative and executive powers were devolved to Edinburgh than to Cardiff or Belfast. The doctrine of Parliamentary sovereignty entitles the Westminster alter or revoke laws that it enacts: devolved institutions can be expressly overridden by the UK Parliament and no courts could protect such move [28] .

The Scotland Act 1998 delegated power to Scottish Parliament to make laws on certain matters outside the matters specifically declared by the Act to be outside its legislative ability. This is set out in Schedule 5 of the Act which includes aspects of the constitution, international relations and defence to name a few. The Act also limits Scotland Parliament from legislating incompatibly with EC law, the rights secured by the ECHR, and to amend or repeal existing Acts of the Westminster Parliament.

There are several procedures in place the Scotland Act 1998 to ensure that legislation proposed by the Scottish Parliament does not go outside its competence. Should the Parliament exceed its competence, the matter may be raised in the superior courts and the Supreme Court of the UK as a "devolve issue" matter. With this legal framework in mind, Acts of the Scottish Parliament are not sovereign and may be overridden by the courts if they go outside its devolved power.

The Scotland Act 1998, s. 28, which provides that the Scottish Parliament may make laws for Scotland, includes a modestly phrased subsection:"(7) This section does not affect the power of the Parliament of the UK to make laws for Scotland." This may be a mean to guard Westminster from being regarded as acting "unconstitutionally" should it intervene in Scottish legislation. When the Scottish Bill was passing through Parliament, many deliberated that Westminster interfering on Scottish legislation will be a rare occurrence. Currently, both governments have observed a new convention (the "Sewel convention) by which the Scottish Parliament by resolution grants its consent to the proposed legislation before it is enacted at Westminster. While the Westminster Parliament can legally legislate on a devolved matter without consulting the Scottish Parliament, such move would receive great political repercussions in Scotland, especially since the Scottish National party holds office in the Scottish Executive.

Conclusion

Dicey distinguished legal sovereignty from political sovereignty. As observed from the changes mentioned above, in context of legal sovereignty, it can be said that Dicey’s doctrine on Parliamentary sovereignty remained the same despite the many changes that occurred in the British State. This is in line with the view that Parliament has voluntarily abdicated its power to the likes of EU with the understanding that if need be, Parliament can legally reclaim its sovereignty. However, I strongly believe that such a case is only applicable in theory. If put to practice, moves such as repealing the ECA act is unthinkable as it will definitely cause political pressure both from UK’s own citizen and internationally. At the very least, such action will require referendum. Hence I conclude that even though the legal sovereignty theorized by Dicey generally remained intact, despite all these recent changes; the UK’s Political sovereignty has diminished since Dicey’s time.