Constitutional Law-Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’ PDF

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Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’...

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Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

CONSTITUTIONAL LAW:

‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

To start with the basics, Parliament is the highest source of ultimate authority and Acts of Parliament are the highest form of law1. The parliament consists of three main components: The Monarch (Queen), The House of Commons (HoC) and House of Lords (HoL). Parliamentary Sovereignty also known as Legislative supremacy is a code of the UK constitution and makes parliament the supreme legal authority. AV Dicey stated that under ‘the English constitution, the right to make or unmake any law whatever and further no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament2.This means Parliament can end or create any Law, courts nor citizens cannot overrule legislation not only that, but no parliament is allowed to pass laws that future parliaments cannot change3. Saying this a Bill can be rejected by HoL and reintroduced and can go to the Royal assent which means the queen formally agrees to make the bill into an Act. Due to this it can be considered that the parliament consists of two elements rather than three. A Bill is a proposal for a new law, they are first introduced into either HoL or HoC where it will be discussed and amended when the houses has agreed on the terms of the Bill it is then presented to the reigning monarch to be signed, once the Monarch has given permission it is now an Act. The EU Law does not take into account British views of parliamentary supremacy and currently UK courts acknowledge EU Law supremacy, on subjects which concern the EU 4. Over the years however the importance of 1 Hilaire Barnett, Constitutional & Administrative Law (Routledge). 2 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, page 153) 3 'Parliament's Authority' (UK Parliament, 2018) accessed 6 December 2018. 4 Berry, Elspeth and Hargreaves, Sylvia p39

European Union lawOxford University Press 2nd edition (2007)

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

Parliamentary supremacy has reduced because of todays economic, legal and political interdependence, it may have been accurate in the 19th century but in present day it is considered to be unrealistic.

As mentioned previously no Citizen can question parliament. In the case British Railways Board v Pickin [1974] AC 765, An Act of Parliament from 1986 stated that if a railway line was abandoned, the land beneath he tracks is property of the owners of the adjoining lands. Pickin bought the adjoining land where the abandoned track lay. Pickin sued the Board stating that in the 1836 Act, part of the land below the abandoned track was lawfully his. The Board argued that the 1968 Act promoted by the Board was no longer valid and the land in question therefore belonged to the Board. Pickin then argued that the Board had misled Parliament under false pretence in the 1968 Act’s preamble. However, the validity of the Acts of parliament could not be looked at by the courts, as courts cannot judge on an Act based on the allegation that parliament was ‘Misled’.5 This case has clearly proved that Parliament is Sovereign in the UK, no Acts can be questioned by citizens or courts.

But has Parliamentary Sovereignty been affected by the EU Law.

The UK has become a member of the EU in 1973, the Court of Justice of the European Union (CJEU) has asserted that EU law is supreme over the laws of any Member States (any country part of the EU1. This already has a clear negative affect on parliamentary supremacy

5 'British Railways V Pickin' (Lawteacher.net, 2018) accessed 7 December 2018.

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

in the UK, as the acceptance of the EU law is under the EU communities Act 1972. It is clear that the EU law comes before domestic laws1. Section 2(4) provides that all statutes whether already enacted or yet to be enacted must be read and given effect to consistently with enforceable principles of EU law and Section 3(1) elevates decisions of the CJEU to binding precedents for all UK courts and tribunals6. This basically is a law which diminishes parliamentary sovereignty as it doesn’t give UK full control over certain aspects in their law.

If EU law is supreme in the UK because of an Act of parliament, does that not mean parliament is not sovereign while being a part of the EU? This is clearly a difficult question to answer because Parliamentary Sovereignty limits its own reign by not preventing future parliaments to undo Acts of previous parliaments leading to parliamentary sovereignty to be a paradox. If parliamentary supremacy Is sovereign then ‘somehow managed, via the European Communities Act 1972, to elevate EU law above its own enactments’ Laws LJ in the Thoburn case7.

In Factortame (No. 2) [1991] there was an issue over which Law was supreme EU law or national Westminster law. The case was Spanish fish owners used UK fish reserves according to the Merchant Shipping Act 1894. This Act allowed them to fish in the UK and sell fish caught in Spain by them. The Secretary of State for Transport changed the Merchant Shipping Act 1894 to become the Merchant Shipping Act 1988 which prevented the Spanish 6 'European Union Weakens Parliamentary Supremacy' (Lawteacher.net, 2018) accessed 7 December 2018.

7 '1,000 Words / If EU Law Is Supreme, Can Parliament Be Sovereign?' (Public Law for Everyone, 2018) accessed 7 December 2018.

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

shipowners using the loophole and using UK fishing allocations. The amended Act ensured that there were strict controls over ship registration to which Spanish shipowners opposed to as being discriminatory because of nationality. In Factortame (No.1) the Spanish Shipowners pursued an injunction to prevent the Merchant Shipping Act 1988 from being used. The HoL raised the issue to the European Court of Justice because UK courts are not empowered to issue an injunction against the Crown. Factortame (No.2) conveyed the European Court of Justice’s verdict in which the Spanish Shipowners succeeded. Reason being the effectiveness of the EU’s national fisheries scheme must not be discriminatory. The case confirmed the UKs relegation to the EU law and EU law can require an injunction against the Crown. 8 This clearly shows Judicial loyalty remains intact.

Since UK became a member of the EU the impact of the EU’s partiality towards the purposive approach has affected the English courts in numerous ways. Firstly, the purposive approach has to be used by UK courts when passing a verdict on EU matters, this is a requirement. Secondly, because the UK courts use purposive approach in EU matters, they are now more commonly used to interpret domestic laws. An example of this is Pickstone v Freemans plc in this case women warehouse operatives were paid the same as male workers however warehouse checkers who were male earned more (£1.22) per week than the Operatives9. Miss Pickstone argued that the company (Freemans) were in breach of the Equal Pay Act 1970. The issue is clearly whether the defendants (Freemans) was in breach of the 8 'European Union Weakens Parliamentary Supremacy' (Lawteacher.net, 2018) accessed 7 December 2018.

9 'Judges And The Law' (OpenLearn, 2018) accessed 7 December 2018.

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

Equal Pay Act, where it has different pay rates for workers completing the work which is seen as equal and they only get paid more because they are of different genders. The courts of Appeal concluded that Freemans was not in breach of the Act however the verdict was rejected by the HoL which stated that Freemans was in breach. The literal meaning of the Act would have meant that Freemans was not in breach of the Act as technically the operatives and checkers were doing different jobs. The HoL overturned the Courts of Appeals verdict because the literal interpretation would have left UK in breach of the treaty obligations from the EU treaties, where it says to legislate and protect equal pay. Therefore, resulting in the HoL using the purposive approach allowing Miss Pickson to claim that she was being paid less than male workers for completing work of equal values despite the work not being the same10.

In the case of Proclamations (1610) Co Rep 74; 77 ER 1352 Sir Edward Coke (Chief Justice of Common Pleas) was asked his opinion on whether monarchy should ban new buildings or making of wheat. The king (James I) wanted to outlaw these actions as he considered it to be against the law. The issue was whether monarch can change an existing law without parliament consent. Coke proclaimed famously, ‘The king by his proclamation or other way cannot change any part of the common law, or statute, or the customs of the realm…the King hath no prerogative but that which the law of the land allows him”. Basically, meaning that the King did not have legal authority to form new offences or ban the manufacture of new 10 'Pickstone V Freemans Plc' (Lawteacher.net, 2018) accessed 7 December 2018. Royal Prerogative: A right or privilege, exclusive to a particular individual or class. In our case this will be the Monarch.

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

buildings. Royal Prerogative did not allow the outlawing previous laws without parliaments consent. Coke stated that the introduction of new laws needs a lot of contemplation and should be taken care of by parliament than a single person. The judgements also stated that the English law is made up of common law, statutory rules and traditions that did not include statements by the monarch11. It is evident that Parliamentary sovereignty rules over Royal prerogative.

Is Parliamentary Sovereignty limited? Analysing both EU law and UK law briefly, it can be seen that the doctrine of parliamentary sovereignty is limited evidently. A clear example is that Parliament must legislate according to EU legislation. However, as Members State choose to stay in the EU, EU law cannot be considered to be Supreme either as Members State can leave anytime, they choose to as UK has done- Brexit. Dicey’s parliamentary sovereignty can be concluded to be invalid as he stated No court can question the validity of Parliament’s Act, the European Courts evidently can. No parliament can bind its successors, this can and has been done. And because UK courts are becoming more accustomed to using the purposive approach, the EU courts clearly is influencing the UK courts.

To conclude, Parliamentary Sovereignty is limited when compared to EU law, the fact is No UK courts can question Parliamentary Sovereignty, but EU courts can and will, and as evidence has provided EU laws are used to give a verdict than UK laws. No citizen can question Parliament which is valid however in terms of courts not valid. As mentioned previously as UK courts tend to use the Purposive approach to rule, the EU has a massive 11 'The Case Of Proclamations' (Lawteacher.net, 2018) accessed 7 December 2018.

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

impact on UK courts which limits the use of Parliament acts thus limiting Sovereignty. But as UK has voted to leave the EU, it is most likely that after March 2019, parliamentary Sovereignty will increase and in reality No courts can question Acts of parliament However as the courts are now used to ruling under EU laws, it will be difficult for the courts to adjust and there is going to be less flexibility in terms of verdicts as the UK courts can no longer use EU laws. Parliamentary sovereignty is still sovereign in the UK as even Royal prerogative cannot question Parliament however it is not considered to be sovereign in comparison to EU courts.

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

Bibliogra phy [1] Barnett H, Constitutional & Administrative Law (Routledge) [2] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, page 153) [3] 'Parliament's Authority' (UK Parliament, 2018) accessed 6 December 2018 [4] Berry, Elspeth and Hargreaves, Sylvia European Union lawOxford University Press 2nd edition (2007) p39 [5] 'British Railways V Pickin' (Lawteacher.net, 2018) accessed 7 December 2018 [6] 'European Union Weakens Parliamentary Supremacy' (Lawteacher.net, 2018) accessed 7 December 2018 [7] '1,000 Words / If EU Law Is Supreme, Can Parliament Be Sovereign?' (Public Law for Everyone, 2018) accessed 7 December 2018

Loshika Jeyaseelan Constituitional Law: ‘Since the UK became a member of the European Union, parliamentary sovereignty is no longer a cornerstone of the UK Constitution. In the light of this assertion, illustrate the current sovereignty status of the UK Parliament.’

[8] 'European Union Weakens Parliamentary Supremacy' (Lawteacher.net, 2018) accessed 7 December 2018 [9] 'Judges And The Law' (OpenLearn, 2018) accessed 7 December 2018 [10] 'Pickstone V Freemans Plc' (Lawteacher.net, 2018) accessed 7 December 2018 [11] 'The Case Of Proclamations' (Lawteacher.net, 2018) accessed 7 December 2018...