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Parliamentary Sovereignty

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Parliamentary sovereignty, once the dominant principle of the UK Constitution, is now under considerable pressure. Discuss this statement with reference to the UK’s membership of the EU, the devolution acts of 1998, the Human Rights Act 1998 and recent judicial comments on the Rule of Law.

"Certainly we want to see Europe more united… but it must be in a way which preserves the different traditions, parliamentary powers, and sense of pride in one's own country." Margaret Thatcher
Over the course of the years many prominent figures such as politicians and academic writers have been concerned with the diminishing of Parliamentary sovereignty.
“Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.”
Historically, due to the lack of a single codified constitution in the UK, the Westminster Parliament is the most powerful and influencing factor on the British political frontier. As opposed to America where the constitution dominates US politics, and legislation can be deemed unconstitutional and revoked by the US judiciary. However, since further integration into Europe incorporating The European Communities Act 1972, The Human Rights Act 1998, European Conventions on Human Rights and devolving legislative powers to Scotland, Wales and Northern Ireland, questions the practically of Parliament still being such a supreme body within British politics.
“The principle of Parliamentary sovereignty means… that Parliament [defined as the Queen, the House of Lords and the House of Commons, acting together]… has, under the English Constitution, the right to make or unmake any law whatsoever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.”
A.V. Dicey’s scholarly words outline the Rule of Law which sought to establish the fundamental framework for the UK Constitution in order to define the legality and justify the sovereignty of Parliament. Years later, it has succumbed to scrutiny. Most notably to disagree with Dicey’s opinions, Sir Ivor Jennings in his book ‘The Law and Constitution’ 1959, stated that there were ‘limitations and inconsistences’suggesting that Dicey’s Rule of Law was archaic in nature and the state must be regulated by the law. This was further reiterated in 2006 by Lord Steyn in R(Jackson) v Attorney General who revealed that
‘ Dicey’s account of “the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”’
The UK’s membership in the European Union (‘EU’) has further removed Parliamentary supremacy from Westminster by overruling domestic constitutional law when in conflict with its own legislations under the 1972 European Communities Act (‘ECA’) which was further enhanced by the Labour Government’s incorporation of the Human Rights Act 1998 (‘HRA’) and the European Conventions on Human Rights (‘ECHR’). Weakening some powers from Parliament and placing in and strengthening the hand of the judiciary under sections 2,3 and 4 of the HRA. The main reason for empowering the judiciary were related to numerous cases brought against the UK from 1975 onwards which ‘strengthened the argument for enabling such issues to be decided by judges in the UK.’ The sections required the courts to ‘take the ECHR into account in applying all legislation’, secondly empowered them to ‘apply the ECHR in… all earlier legislation [and] quash any statutory provisions that conflict with a convention right’ and allow the courts ‘to apply the ECHR… against conflicting provisions in both existing and future Acts of Parliament’
Giving the judiciary the authority to ‘strike down’ future acts of Parliament goes against the basis on which the UK constitution derives from. In 2005 The Constitutional Reform Act (‘CRA’) ‘reinforced the principles of the separation of powers and independence of the judiciary by removing the judicial powers’ yet is hindered of effectiveness by the EU granting sections 2, 3 and 4 of the HRA causing a fusion and not a separation of powers.
Prior to this in ‘Madzimbamuto v Lardner Burke 1969’ Lord Reid held that:
‘Due to the formation of the UK Constitution… Though it may be morally or politically unconstitutional for Parliament to do certain things… Courts cannot hold the resulting Act of Parliament invalid.’
Here, Lord Reid is abiding by the constitution recognising, though legislation passed by Parliament may not be satisfactorily compatible, the courts have no power to declare an act of Parliament unconstitutional.
The results in ‘Marbury v Madison’ differ considerably to ‘Madzimbamuto v Lardner Burke’ as the ‘Supreme court has the authority to review acts of Congress and determine whether they are unconstitutional’ UK has no equivalent to the principle stated by the Chief Justice Marshall. Thus, any legislation that interferes with the US constitution is made void.
‘R v Secretary of State for Transport, ex p Factortame Ltd’ is a clear example of how the EU law takes precedent over national law. In this case, there was a clash between The Merchant Shipping Act 1988 and section 2.(4). When the case was brought before the House of Lords they ‘refused to grant an injunction to prevent the Act being enforced, holding that it had no power to defy an Act of Parliament.’ The Act and the sovereignty of Parliament were overruled on the grounds that it was not compatible with EU legislation. Parallel to outcome of ‘Factortame’ is the case of ‘Costa v ENEL 1964’ where yet again national law was deemed inferior. It was held that all member states were subject to EU law which is regarded supreme when conflicts arise between EU and domestic statutes.
If European law continues to overrule national statutes, it continues to fragment the fundamental Rules of Law Dicey established in the nineteenth century and the Rule of Law conformed into statute. As Dicey states that ‘no Parliament can bind its successors’ yet the ECA could bind its successors as it is semi-entrenched , and dictating laws with an unelected body, going against the fabrics of democracy and thus, unconstitutional. Moreover, in superseding domestic law and removing elements of member states’ sovereignty, it begs the question, should the EU no longer benefit a country, will member states have enough sovereignty to repeal the ECA?
Despite the outcome of ‘Factortame’ some elements of the judiciary attempt to preserve Parliamentary sovereignty. This can be noted in ‘Pepper v Hart’ where Lord Mackay ruled that parliamentary material could be used to assist in cases where the interpretation of legislation may be ‘ambiguous or obscure.’ Therefore, upholding their constitutional duties and recognising the superiority of statute law.

‘Thoburn v Sunderland City Council’ also demonstrates the superiority that some statutes have over others. As the ECA is a ‘special status’ statute, it is embedded in the Constitutional framework of the UK, thus no longer subjective to implied repeal. This form of statute protects the sovereignty of Parliament and could be used to regain full centralised control at Westminster.

Another debate as to the dilution of parliamentary sovereignty is that of the devolved powers to Northern Ireland, Scotland and Wales.
The Scotland Act 1998 established ‘the Scottish Parliament with responsibility for devolved matters while the UK Parliament remains responsible for 'reserved matters' in Scotland’ allowing the Scottish parliament to make primary legislation in a numerous amount of areas. The Sewel Convention was a further step away from the Westminster Parliament where, the government now must ask permission before legislating in Scottish jurisdiction. However, Westminster still remain supreme due to the restrictions put down in section 29 listing a number of restricted areas where the Scottish Parliament are not allowed to execute legislative competence for interference of the duties of Westminster. There is also the safe-guard of repealing the Act, with the only consequences of political upheaval.
Despite not being as legislatively competent as Scotland for the past seven years, the Government of Wales Act 2006 allows the Welsh assembly to take the role formerly exercised by the Secretary of State Wales. Likewise with the Scottish Act, it has sanctions preventing the Welsh Assembly legislating in certain domains of politics.

In the final analysis, it can be debated that indeed, with implementing and incorporating Acts from Europe and devolving powers to other countries within in United Kingdom, that the Westminster Parliament has surrendered some sovereign powers. However,
“These developments do not fundamentally undermine the principle of parliamentary sovereignty, since, in theory at least, Parliament could repeal any of the laws implementing these changes.”
Theoretically or not legally, the option is there to regain full sovereignty, as the only criticism a government could face, would be that of a political nature. For under the separation of powers, the role of the judiciary, is merely to interpret legislation. Therefore, Parliamentary sovereignty is still the main principle of the UK constitution.

Bibliography
Statutes.
The Human Rights Act 1998
The European Communities Act 1972
The Merchant Shipping Act 1988
The Scottish Act 1998
The Government of Wales 2006
European Convention on Human Rights
The Constitutional Reform Act 2005
Case Law
Costa v ENEL [1964] ECR 585 (6/64)

R v Secretary of State for Transport, ex parte Factortame Ltd (No.2) [1991] 1 AC 603, 643
Pepper v Hart [1992] UKHL 3 R v Secretary of State for Transport, ex. p Factortame Ltd(No2) [1991] HL
Madzimbamuto v Lardner Burke [1969] 1 AC 645

Marbury v Madison [1803] 5 US (1 Cranch) 137
R(Jackson) v Attorney General [2006] 1 AC 262
Secondary sources
J. Jowell and D. Oliver The Changing Constitution, 7th edition Oxford University Press 2009
J.Alder Constitutional and Administrative Law, 8th edition, Palgrave Macmillan 2011
C. Faragher, Public Law, Oxford University Press 2011
Websites:
http://www.margaretthatcher.org/document/107332 http://www.parliament.uk/about/how/sovereignty/ http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1992/3.html&query=pepper+and+v+and+hart&method=boolean

http://www.scotland.gov.uk/About/18060/11552 http://www.lawnix.com/cases/marbury-madison.html http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63305.htm#a6

--------------------------------------------
[ 1 ]. http://www.margaretthatcher.org/document/107332
[ 2 ]. http://www.parliament.uk/about/how/sovereignty/
[ 3 ]. The Changing Constitution (7th Edn 2009) 38
[ 4 ]. Public Law Colin Faragher (1st edn 2010) 25
[ 5 ]. [2006] 1 AC 262
[ 6 ]. The Changing Constitution (7th edn 2009) 67
[ 7 ]. The Changing Constitution (7th Edn 2009) 62
[ 8 ]. Ibid 62
[ 9 ]. Ibid 62
[ 10 ]. Ibid 62-63
[ 11 ]. The Changing Constitution (7th Edn 2009) 63
[ 12 ]. http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63305.htm#a6
[ 13 ]. Madzimbamuto v Lardner Burke [1969] 1 AC 645
[ 14 ]. Ibid
[ 15 ]. Marbury v Madison [1803] 5 US (1 Cranch) 137
[ 16 ]. http://www.lawnix.com/cases/marbury-madison.html
[ 17 ]. R v Secretary of State for Transport, ex p Factortame Ltd(No2) [1991] HL
[ 18 ]. Constitutional and Administrative Law 8th Edn
[ 19 ]. Costa v ENEL [1964] ECR 585 (6/64
[ 20 ]. R v Secretary of State for Transport, ex parte Factortame Ltd (No.2) [1991] 1 AC 603, 643
[ 21 ]. Pepper v Hart [1992] UKHL 3
[ 22 ]. http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1992/3.html&query=pepper+and+v+and+hart&method=boolean
[ 23 ]. http://www.scotland.gov.uk/About/18060/11552e

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