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The Evolving Concept of Parliamentary Sovereignty in the UK, Essays (high school) of Public Law

University of NorthWestPublic Law

A comprehensive analysis of the concept of parliamentary sovereignty in the united kingdom, exploring its historical development, the impact of european union membership, and the influence of the human rights act. It delves into the three key principles of parliamentary sovereignty as outlined by a.v. Dicey, and examines how these principles have been challenged and reshaped over time. The tension between parliamentary sovereignty and the supremacy of eu law, as well as the role of the judiciary in interpreting and potentially limiting the power of the parliament. It also considers the implications of brexit and the repeal of the european communities act 1972. Overall, the document offers a nuanced and thought-provoking examination of the evolving nature of parliamentary sovereignty in the uk, highlighting the complex interplay between legislative, judicial, and supranational forces that have shaped this fundamental constitutional principle.

Typology: Essays (high school)

2022/2023

Uploaded on 05/01/2024

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Parliamentary Sovereignty
2021 ZA
Q. Discuss the extent to which European Union membership limited the sovereignty of
Parliament.
This preposition necessitates an evaluation of the overarching idea of
parliamentary sovereignty. We shall be discussing the three limbs of AV Dicey
regarding Parliamentary Sovereignty and the impact of the HRA on this concept.
Furthermore, we will be debating about the effect on Parliamentary Sovereignty
on joining the European Union and, ultimately Brexit.
In countries where there is a written constitution, it is the constitution that is
supreme, like the USA. On the other hand, in states with an uncodified
constitution, the parliament is supreme as in the UK. The Bill of Rights 1689 is of
prime importance in the UK. After this act, the powers were transferred to the
Parliament and the Parliament was in its true essence, made the supreme body.
Legal sovereignty is in the hands of the Parliament, whereas political sovereignty
lies with the citizens. Political sovereignty is of utmost importance as it is the
people who elect their representatives through the power of the vote.
According to Barnett, judicial approval is necessary for legislative sovereignty,
making it a basic common law principle. According to AV Dicey and Wade, the
power of the Parliament is unquestionable, and legislation cannot be annulled. In
contrast, Jennings, Heuston, and Marshall claim that the legitimacy of
parliamentary sovereignty is conferred by courts that apply legislation. Jennings
criticizes Dicey and thinks that Dicey is against the judiciary and believes that the
legislature is the most essential part of the government.
One of the key "cornerstones" of the British constitution, in Dicey's opinion, is the
notion of parliamentary sovereignty. The doctrine consists of three limbs which
we will discuss in this essay. The first is that the “Parliament can make or unmake
any law.” It means that the Parliament is the supreme law-making body, and it
can legislate on any subject matter. In terms of its authority to pass laws, it has no
restrictions. The Parliament extended its tenure under the septennial laws from
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Parliamentary Sovereignty

2021 ZA

Q. Discuss the extent to which European Union membership limited the sovereignty of Parliament. This preposition necessitates an evaluation of the overarching idea of parliamentary sovereignty. We shall be discussing the three limbs of AV Dicey regarding Parliamentary Sovereignty and the impact of the HRA on this concept. Furthermore, we will be debating about the effect on Parliamentary Sovereignty on joining the European Union and, ultimately Brexit. In countries where there is a written constitution, it is the constitution that is supreme, like the USA. On the other hand, in states with an uncodified constitution, the parliament is supreme as in the UK. The Bill of Rights 1689 is of prime importance in the UK. After this act, the powers were transferred to the Parliament and the Parliament was in its true essence, made the supreme body. Legal sovereignty is in the hands of the Parliament, whereas political sovereignty lies with the citizens. Political sovereignty is of utmost importance as it is the people who elect their representatives through the power of the vote. According to Barnett, judicial approval is necessary for legislative sovereignty, making it a basic common law principle. According to AV Dicey and Wade, the power of the Parliament is unquestionable, and legislation cannot be annulled. In contrast, Jennings, Heuston, and Marshall claim that the legitimacy of parliamentary sovereignty is conferred by courts that apply legislation. Jennings criticizes Dicey and thinks that Dicey is against the judiciary and believes that the legislature is the most essential part of the government. One of the key "cornerstones" of the British constitution, in Dicey's opinion, is the notion of parliamentary sovereignty. The doctrine consists of three limbs which we will discuss in this essay. The first is that the “Parliament can make or unmake any law.” It means that the Parliament is the supreme law-making body, and it can legislate on any subject matter. In terms of its authority to pass laws, it has no restrictions. The Parliament extended its tenure under the septennial laws from

three to seven years and afterward decreased it under the Parliaments act to five years. Furthermore, Madzimbamuto v. Lardener Burke ruled that nothing is beyond the jurisdiction of parliament and that it may pass any legislation on anything, regardless of how absurd or immoral it may be. This illustrates the sovereignty of Parliament. The Burmah Oil Company v. Lord Advocate ruling of the House of Lords was repealed by the War Damage Act of 1965 , which also shows that Parliament has the power to enact or abolish any legislation, even retrospectively. Additionally, it was determined in the case of Cheney v. Conn that international law is superseded by acts of Parliament, which are the highest form of law in the country. The territorial scope of the functions of the parliament is unbounded. As an illustration, consider the case of Mortensen v. Peters , in which the courts ruled that they would embrace and uphold the acts of Parliament even though they apply outside the United Kingdom. These two cases demonstrate that the supremacy of Parliament is not restricted in any way. Moreover, Sir Ivor Jennings described this as “if Parliament enacts that smoking in the streets of Paris is an offence, then it is an offence.” Although this cannot be practically possible, theoretically, there is no limitation on the Parliament. Another case that is of paramount importance is R v Secretary of State ex parte Simms in which Lord Hoffman said that the parliament could legislate even against the basic fundamental rights. While these case laws demonstrate that the Parliament has the authority to pass any legislation, it also has the authority to unmake any law. However, with devolution the power that has been given to Ireland, Scotland, and Wales cannot be regained. This has, in some way, bound the future Parliament. The parliamentary supremacy is no longer the same due to this devolution. The second limb of AV Dicey’s definition states that “Parliament cannot bind its successors nor be bound by its predecessors.” This limb is related to the doctrine of implied repeal. This doctrine indicates that if there are two laws on the same subject matter, the later legislation will take precedence over the earlier one, which will be impliedly repealed. In the case of Vauxhall Estates v Liverpool, the Act of 1925 prevailed over the 1919 act. Similarly, in the case Ellen Streets Estates Ltd. v. Minister for Health, the later Act must likewise be applied, and the legislature's purpose to repeal the law must be carried out “just because it is the legislature's will.” Moreover, in Thoburn v Sunderland, it was established that

the ultimate power lies with the Parliament as the Parliament is representative of the will of the people who elect them. No Parliament would like to legislate against the will of the people. The extent to which parliamentary authority has been diminished by participation in the European Union is a matter of discussion. In 1972, the United Kingdom joined the European Community. Section 2 of the European Communities Act of 1972 allows Community law to affect domestic law directly. Section 2(4) specifies that domestic legislation should be interpreted in a way that gives effect to the rights of the European Union. One may claim that because of these clauses, Parliament is no longer supreme. In Van Gend en Loos, the ECJ held that the European treaty law directly affects member states, and they are bound to follow it. Furthermore, in Costa Enel, it was held that the EU law would prevail over the domestic law. These two cases undermine the principle of parliamentary sovereignty in the UK. In the case of Simmenthal, it was established that if a national court is asked to implement EU law, it has the authority to disregard national law without waiting for it to be overturned by legislation or other constitutional methods. Furthermore, in Internationale Handelgeselchaftt, CJEU held that if the EU law contradicted the constitutional law of the state, the EU law would prevail. In an exparte Factortame case where EU law conflicted with the Merchant Shipping Act of 1988, the English Supreme Court made its presence known by asking ECJ for its opinion regarding this matter. The House of Lords was instructed to disregard their national laws and to give EU law precedence. In this case, the court's decision to overturn the legislative law destroys the idea of PS. Another relevant case is Macarthys v Smith, in which it was decided that domestic law should be construed in accordance with EC law, with EC law taking precedence in cases of dispute. The courts interpreted the sex discrimination act in Garland v. British Rail in a way that gave effect to EU law. All these show that the EU law has somehow compromised the Parliamentary Sovereignty. In 2016 a referendum was held in which 51% of UK voters supported the country's exit from the EU. Brexit efforts were started, and the EU Withdrawal Act of 2018 was enacted. The desire to leave the EU, however, did not become a reality until 2019 when Boris Johnson was able to secure a deal, leading to the

passage of the EU Withdrawal Act 2019, which expressly repealed the ECA 1972. This can be construed that the Parliament had surrendered itself to EU law and had the discretion to repeal, which it did. The Human Rights Act was passed in 1998, which further challenged the supremacy of the British parliament. This act has been claimed to have shifted the sovereignty of the legislature to the court. The section 3 of this act states that courts should interpret legislations in way that it is compatible with ECHR. In this way the role of Parliament for change was undertaken by the judiciary. With the help of section 4 of the HRA the courts can issue a declaration of incompatibility which is a warning to the Parliament to amend the act in way which is compatible with the ECHR. This shows that the Parliament supremacy is undermined as it has to be in line with the ECHR. Although parliamentary sovereignty remains the cornerstone of our constitution, the case for its legitimacy has undoubtedly been questioned, particularly since the ECA was implemented. After the critical evaluation, it can be concluded that EU membership unquestionably changed the constitutional environment and resulted in a scenario where domestic courts had to uphold EU law over domestic law. The Human Rights Act of 1998 may have constrained the power of the Parliament. However, after Brexit this threat has decreased as ECA has been repealed. The Parliament cannot disregard the people's will as the ultimate sovereignty lies with them. To conclude we can state that the parliamentary supremacy has changed through time rather than been damaged or abolished, and that the UK parliament continues to be the highest authority.