Parliamentary sovereignty is one of the key and most controversial of the UK Constitutional principles. It started after the Bill of Rights 1689, where Parliament took the remaining powers of the Monarch. Since this was never written down in a constitutional code, the UK Parliament took unlimited powers of law making, just as the Monarch had before the Magna Carta 1215, only this time, they were elected officials.
What is Parliamentary Soverignty?
Once again, this is a principle that is heavily debated. A.V. Dicey defined this power as the right to make or unmake any law, that no person or body has the right to override or invalidate its legislation.
The Enrolled Act Rule
This rule states that once an Act of Parliament has become an act, the courts in no way can even consider its validity based on how it was created, regardless of its creation. Even fraudulent activity it overlooked- Pickin BRB. Courts can never look at the validity of any legislation- Pickin v British Railways Board.
Practical and Political Considerations on Parliamentary Supremacy
The House of Commons is made up of MP’s who are elected in every General Election. They represent a certain district of the Country. If they wish to be elected into the HOC again, they will not act contrary to the wishes of their Electorate. This is a very simplistic way of putting it, however it is true. If an MP acts contrary to the wishes of his electorate, then they will not get elected into office again, thus placing limitations on their power.
Equally, Parliament is limited because of enforcement reasons. It was sir Iver Jennings that used the concept of the UK Parliament being able to pass a law that prohibits smoking in Paris. However, this is not able to be enforced, and therefore Parliament are limited practically because of this. Not to mention that this law would upset international relations with France. It would definitely be frowned upon if UK Parliament started legislated on other countries.
Another example of this practical limitation is in regard to the Devolved powers. The Devolution acts grated power to Northern Ireland, Wales and Scotland. If Parliament were to attempt to repeal this legislation which delegates power, it could cause mass upset, and could even result in those countries declaring independence from the UK. Therefore, practically, the UK Parliament would never attempt to do this.
Before talking about the Domestic Limitations Parliament places on itself, it must be understood that because Parliament powers is unlimited, it can never be bound by previous Parliaments (which is heavily debated).
If Parliament used its unlimited powers to bind all future Parliaments, the latter which takes over after technically has less power than the previous. This diminishing power goes contrary to the constitutional principle of Parliamentary Supremacy.
Parliament can Repeal legislation in 2 ways, Express repeal and Implied Repeal. Express repeal is where an Act of Parliament states specifically that sections or the entire of a previous Act is repealed. This old Act of parliament is then invalidated
Implied repeal is where a later Act of Parliament contradicts a later one. The case of Ellen Street Estates clarified that the Courts will apply the later legislation and disregard the older if there is a contradiction.
However, the case of Thoborn developed this principle. In this case, Constitutional Statutes were defined as those which influence the relationship between the state and the individual, or issues of fundamental Human Rights. Normal statutes can be repealed implicitly, however Constitutional statutes must be expressly repealed. This reason behind this is to ensure that the Parliament must be certain of changing the Constitution when enacting law, not doing it by mistake.
This raises the question on whether Parliament do have the ability to entrench legislation, and more to the point, whether they should be able too. Below are summarized arguments for and against Entrenchment:
Arguments that Entrenchment Should be allowed
- Some legislation is more important than others. Constitutional legislation is of highest importance, and therefore should be preserved, much like the US system.
- If Parliament are allowed to make their legislative process easier, in regards the Parliament Acts, then they Should also be able to make it harder.
- Manner and Form Argument
- The case of New South Wales v Trethowan made it possible to entrench legislation in Australia.
- It does not have to be made impossible to repeal certain legislation, that would truly impose on PS, however making it harder does not impose on Parliamentary Sovereignty.
- Elliot and Thomas said that Parliament makes legislation that impacts the future Parliaments all the time, therefore entrenchment is just allowing it specifically to happen e.g. devolution, ECHR.
Arguments that Entrenchment Should Not be allowed
- It infringes on Parliamentary Sovereignty.
- Where does the entrenchment stop? Would the current Parliament entrench every single statute that they pass?
- The absence of a written constitution makes it unlimited, and therefore it would be hard to implement without Parliaments consent.
- Important statutes are harder to repeal anyway because of practical considerations e.g. Brexit. People don’t like it when their rights are taken away.
- The Argument that Wade posed was that in the UK, all statutes are equal, and therefore to ensure the PS continues, it is important not to allow entrenchment.
- Parliamentary Sovereignty has been a key constitutional principle since the Bill of Rights in 1689.
- By allowing them to have sovereignty, it allows flexibility in order for Parliament to change the constitution in line with the views of the people.
- As Dicey said, the constitution is based on the rights and obligations of the Public. Therefore, by allowing entrenchment, it makes it harder to update these rights and obligations that the people of the UK wish.
There may be more arguments, however these are just a brief summary of some of the main points.
International Law Limitations
First, we must look towards the international Treaties that the UK government sign into. For example, the Kyoto Protocol ect. There are international Treaties that the UK has signed up too and therefore must abide by. If Parliament legislate against this, it, it may cause international unrest. However, this is more of a political view. The main areas in which the UK Parliament is affected by international law is in relation to the European Union, and the European Convention of Human Rights.
The European Union
The EU was implemented into UK law by way of the European Communities Act. The EU has grown into an economic and political Block. Treaties, Regulations and Directives implement law into each of its member states. It is made up of 28 countries, soon to be 27 once the UK leaves on the 29th March, 2019.
Although the UK is leaving, it is still important to identify the limitations that the EU has placed on Parliamentary Sovereignty. Treaties and Regulations are Directly Applicable on the UK (2(4) ECA) and will be directly effective so long as they are Clear, Precise and Unconditional- Van Gend. This means that as soon as they are passed, they automatically become National law that everyone in the country can rely on. Directives are not Directly Applicable in any circumstances. The UK must implement a law treating the issue by a certain date. If this is not don’t by the intended date, the state may be Fined.
The other effect that the EU have is that courts must interpret all National Legislation in line with EU Law. This is cited in section 2(4) of the ECA. This became apparent in many cases, the most famous of which being Factortame No2. This case relates to Spanish fisherman fishing the British Waters which was prohibited under National Law. Due to the freedoms of the EU, they permitted this. The outcome was that where there is any contradiction in National and EU law, that EU law will always prevail.
This is limiting on the UK Parliament for many reasons. Firstly, they do not get any say in what legislation is passed in relation to Treaties and Regulations. In regard to directives, they are also limited as they must implement legislation covering all the bases set out by the Directive. It also has a impact on the National legislation that they have as the courts must interpret in line with EU legislation, and not the true wishes of Parliament. This is a direct interference with Parliamentary sovereignty.
However, the opposing argument is that parliament enacted legislation putting the EU law supreme, they also have the right to take this power back. This is fairly ironic because Brexit is doing exactly that.
The European Convention of Human Rights
The ECHR was implemented into the UK under the Human Rights Act 1998. The effect of this Act was allowing individuals in the UK to rely on their ECHR rights in National courts rather than going to Strasbourg and having to get the European Court of Human Rights to enforce their rights. Schedule 1 of the HRA contains that Article rights that have been incorporated into the UK.
Section 3 of the HRA states that the UK courts must interpret all National law in line with ECHR law so far as is possible. Much like the EU, has placed limits on PS as they should not be seen to be legislating contrary to Fundamental Humans Rights. However, it may also be argued that the rights in the HRA should be protected. Parliament should not be able to rule on whether people should be allowed to live or be subject to degrading treatment. Whilst this may be true, it is still a limitation that is placed on Parliament. In the Subsections of they act, they do contain times in which these rights may be interfered with. These are very narrow, which again is debatable as to whether it is a positive or negative.
Section 4 of the HRA covers Declarations of Incompatibility. This is where the National law can in no way be interpreted in line with ECHR rights. Since the implementation of the HRA, there have been over 35 DIC’s and only 1 of which was not changed as a result- the case of Hirsh and regarded the refusal of Prisoners to vote in the General Election. This shows that DIC’s do have a lot of influence over the National parliament as they do not want to be seen to be infringing on the publics Fundamental Human Rights. Equally, DIC’s are not legally binding, and therefore Parliament retains the power and discretion as to which National Law’s they change to enforce peoples ECHR rights and ones they don’t.