Law & State Parliamentary Sovereignty Essay PDF

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The doctrine of Parliamentary sovereignty as defined by A Dicey serves as a central organising principle to the UK’s constitution. 1 A constitution sets out the map of the state; allocating authority, providing an accountable government, the protection of rights and the rule of law. 2 Parliamentary ...

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The doctrine of Parliamentary sovereignty as defined by A.V Dicey serves as a central organising principle to the UK’s constitution.1 A constitution sets out the map of the state; allocating authority, providing an accountable government, the protection of rights and the rule of law.2 Parliamentary sovereignty is defined by Dicey to mean that parliament has the right to make or unmake any law whatsoever and that an act of parliament is supreme in that no person or body has the right to override or set it aside3. This orthodox view of parliamentary sovereignty provides a straightforward definition of the UK’s constitution by providing two main points of parliamentary sovereignty; unlimited legislative authority of parliament and the absence of any competing legislative power.4 Following the orthodox view, it can be concluded that governing powers in the UK solely lies with parliament, and that they would not be held accountable. However, this view of parliamentary sovereignty is vague and deceptive. As the UK’s constitution is uncodified, it allows the constitution and parliament to develop and adapt to the needs and demands of the country.5 These developments brought about changes to the practical powers of parliament and the allocation of powers in the UK which does not align with the orthodox view of parliamentary sovereignty, such as; the UK’s membership in the European Union, a devolution among regional legislatures, the introduction of the Human Rights Act 1998, and the establishment of the Supreme Court. In addition to this, recent events such as Parliament Act 1911 and 1949, and the ouster clause raised questions in Parliaments sovereignty in that no person or body is able to question or compete with Parliament’s legislative power. On 1st January 1973, the UK entered the European Union. Member states of the European Union agreed to a treaty which binds them in international law, limiting their sovereign rights by providing that EU law would take priority over the laws of individual member states. When the UK became a member of the European Union, it raises a question on competing sovereignty. This issue was failed to be addressed by the European Communities Act 1972 which sets out the legislation on EU law’s supremacy, merely stating that “any enactment, passed or to be passed… shall be construed and have effect subject to” directly effective EU laws6. This was later addressed in Factortame7 which reaffirmed the supremacy of EU law over the laws of the member states despite its parliamentary sovereignty. In addition to EU laws taking priority over incompatible laws of member states, it is also considered unlawful for a national legislature of a member state to pass a legislation which does not complies with the law set out by the European Union.8 Where a national legislature have been found to breach this obligation set out by the Court of Justice of the European Union, financial liability may be imposed.9 This raises concerns on its limitations on parliamentary 1 Michael Gordon, ‘The Function and the Virtue of Parliamentary Sovereignty’ in Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart Publishing 2015) 23. 2 Mark Elliott and Robert Thomas, ‘Public law’ (4th edn, OUP 2020) 18. 3 Ibid 27. 4 Ibid (n3) 5 Marc Johnson, ‘The Models of Parliamentary Sovereignty’ University of Bristol Law School Blog (2017) 6 European Communities Act, 1972, c. 68. ss2(4) 7 R. v Secretary of State for Transport Ex p. Factortame Ltd (No.1) [1990] 2 A.C. 85 8 Mark Elliott, 'Parliamentary Sovereignty in a Changing Constitutional Landscape' in Sir Jeffrey Jowell and Colm O'Cinneide (eds), The Changing Constitution (9th edn, OUP 2019) 40. 9 Ibid

sovereignty. The supremacy of EU law goes against the orthodox view of parliamentary sovereignty in that there is no competing legislative authority, however, UK’s membership in the European Union provides a superior lawmaking body and limits Parliament’s legislative authority. Sir William Wade asserted in his book that ‘EU law has not merely limited parliamentary sovereignty but instead has terminated it’.10 This shows that Dicey’s definition of parliamentary sovereignty does not corresponse to Parliament’s practical powers nor the real allocation of power in the UK. However, the majority judgement in Miller 11 disagrees with Wade’s arguments, stating that although EU law took primacy over domestic legislation, this was only allowed by parliament and that any authority it had in the UK could be repealed by parliament as set out in s.18 in the European Union Act 2011.12 It was then further added that in the duration of UK’s membership of the European Union, the ECA 1972 does not constitute the European Union legislative institutions as a delegate of Parliament, they are independent of Parliament and they legislate independently.13 This argument was based on the notion that the ECA is a ‘constitutional statute’, which was first proposed by Laws Lj in Thoburn14 and then further developed in HS2 Action Alliance15 by the Supreme Court. This suggests that despite a partial transfer of legislative authority to the EU, power still solely lies with Parliament as suggested by the doctrine of parliamentary sovereignty. However, as during its membership, parliament’s legislative authority was limited, it could be argued that Parliament’s practical powers does not corresponse with that defined by Dicey. Up until 1998, the United Kingdom had largely remained a highly centralised state, with its legislative and executive power residing in its Parliament.16 This changed when Tony Blair with the Labour party, introduced constitutional reforms which included a process of devolution in order to accommodate the diverse identities and interests of the UK’s constituent nations.17 The devolution established the regional legislatures in Scotland, Wales and Northern Ireland. However, the process of devolution is asymmetrical, the different assemblies are provided with different amounts of devolved authority.18 The amount and type of power devolved to each assemblies was based on the desire for change and independence demanded by each country. The different levels of desire for independence shown by each country was reflected in the results of the 1979 Scottish Devolution referendum with 74 per cent voted in support of the devolution and the 1979 Welsh Devolution referendum with 50.3 per cent in favour of it.19 Based on the results of the referendum, more power was given to the Scottish Parliament than that of the Assembly of Wales. The Northern Ireland Assembly was also provided a similar amount of power to that of Scotland, they both possess general legislative competence which allows them to enact legislation on any issue, subject to certain exceptions.20 In comparison, the devolved power provided to Wales was merely one of administrative or executive.21 10 H. W. R. Wade, ‘Sovereignty: Revolution or Evolution?’ (1996) 112 LQR 568. 11 R. (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 12 Ibid 67. 13 Ibid 68. 14 Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 69 15 R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324 16 Elliott, M. and Thomas, R. ‘Public law’ (4th edn, OUP 2020) 313. 17 Ibid 18 Ibid 316. 19 Ibid (n12) 20 Ibid (n16) 21 Ibid

Lady Hale raised her concerns on the devolution as a constitutional reform, stating that ‘the UK has become a federal state with a Constitution regulating the relationships between the federal centre and the component parts’. Where the UK has become a federal state, it would suggest that the doctrine of parliamentary sovereignty would be abandoned as a defining principle of the UK constitution. However, Elliott disagrees with this statement, arguing that although the establishment of the devolved legislature resembles that of a federal state, the asymmetric nature of the devolution and the lack of a regional legislature for England does not align with the definition of a federal state. In addition to this, following the 2014 Scottish Independence referendum, the Scotland Act 2016 and the Wales Act 2017 was introduced, providing the Sewel Convention to gain statutory recognition. The Sewel Convention provides that the UK Parliament would require legislative consent motion and involvement from the devolved legislatures, limiting its power in passing legislation on devolved matters. The introduction of both Acts and the statutory recognition of the Sewel Convention raises further concerns on the relationship between devolution and parliamentary sovereignty. The Sewel Convention can be argued to be limiting Parliament’s legislative authority on matters in all parts of the UK. However, in 2017, the Supreme court ruled that the Sewel Convention is not legally binding and remains just a political convention, therefore it is unenforceable by the courts.22 Furthermore, in the 350 legislative consent motions sought by Parliament, consent has only been denied on 13 occasions.23 Nonetheless, it can be concluded that the introduction of the Devolution has altered the practical powers of Parliament and the allocation of powers in the UK, in that power is shared with the devolved legislatures, decreasing the legislative authority of parliament. Another constitutional reform introduced by Blair when he took office in 1997 was the Human Rights Act 1998. This was to withdraw the UK’s dependency on the European courts of Human Rights and instead enable domestic courts to deal with human rights matters of the UK. Section 3 and 4 of the HRA 1998 then enables the court to challenge an Act of Parliament on the basis of protecting the Convention rights as set out in the ECHR. In the enactment of the HRA, Lord Irvine24 noted that the provision of s.3 and 4 of the act may challenge parliamentary sovereignty, in following s.3, ‘judges would be taking it upon themselves to rewrite legislation in order to render it consistent with the Convention, thereby excluding Parliament from the human rights enterprise’.25 Whereas a reliance on s.4 and declaring an Act of Parliament would then require legislative correction. The provision of s.4 itself could be argued to go against Dicey’s third basic principle of parliamentary sovereignty where it states that a ‘legislature passed by parliament could not be questioned by any person or body’.26 An example of this is the Belmarsh case27, where Parliament had to amend and replace s.23 of the Anti-terrorism, Crime and Security Act 2001 as following the provisions of s.4 of the HRA 1998, the courts declared the act to be incompatible with Sch. 1 22 Ibid 35. 23 Sewel convention, (2018) 24 Elliott, M. and Thomas, R. ‘Public law’ (4th edn, OUP 2020) 772. 25 Irvine, ‘Activism and Restraint: Human Rights and the Interpretative Process’ [1999] EHRLR 350, 367. 26 Dicey, A.V, An Introduction to the Law of the Constitution, (1885), p38 27 A v Secretary of State for the Home Department [2004] UKHL 56

Part I Art.5 and Art.14 of the HRA 1998. Therefore, it can be concluded that the introduction of the HRA 1998 changes the practical powers of Parliament, whereby it does not corresponse with Dicey’s principle of parliamentary sovereignty defining the powers of parliament. In addition to parliamentary sovereignty, the doctrine of rule of law is an equally fundamental defining principle of the UK’s Constitution. However, there are instances where the doctrine of rule of law would conflict with parliamentary sovereignty; such as Parliament Act 1911 and 1949, and the ouster clause. In 1911, Parliament passed the Parliament Act 1911 to regulate the relationship between the two Houses of Parliament. The Act limits the power of the House of Lords by enabling the House of Commons to bypass the approval of the House of Lords in passing legislation after two years of its proposal. The Parliament Act 1949 then reduced the timeframe in which the Lords are able to veto a passing of the Bill to one year. However, in the case of Jackson28, the validity of the Parliament Act 1949 was questioned by the courts, scrutinizing the relationship between the rule of law and parliamentary sovereignty. In the obiter of Jackson29, Lord Hope suggested that ‘Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute.. the rule of law enforced by the courts is the ultimate controlling factor on which our constitution has based’.30 This suggests that the doctrine of rule of law undermines or at least limits parliamentary sovereignty. Furthermore, the enforcement of the ouster clause as a statutory provision raised further questions on the relationship between the rule of law and parliamentary sovereignty. The ouster clause precludes the judicial review jurisdiction of the courts. The ouster clause can be argued to be a provision that enforces parliamentary sovereignty in the UK. However, there are instances where the courts disregarded the ouster clause. An example of this is the case of Anisminic31 the court argued that due to the equally fundamental constitutional principle of rule of law which provides that it is the courts duty to interpret legislation passed by Parliament. It was then held that when Parliament had said ‘that the Commission’s determinations could not be questioned in court, they actually meant that no lawful determination by the Commission could be questioned by a court’.32 This was then comfirmed by the Supreme court in Privacy International33. Elliott suggested that the decisions in Anisminic and Privacy International then not only raised questions on whether Parliament is challenged by the courts but whether Parliament was able to bring about the ouster clause at all.34 In conclusion, parliamentary sovereignty is a central organising principle of the UK’s constitution. As the UK’s constitution is unwritten, it changes and adapts over time whereby 28 R. (Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 29 Ibid 30 Ibid 31 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 32 Elliott, M. and Thomas, R. ‘Public law’ (4th edn, OUP 2020) 261. 33 R. (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114 34 Mark Elliott, 'Parliamentary Sovereignty in a Changing Constitutional Landscape' in Sir Jeffrey Jowell and Colm O'Cinneide (eds), The Changing Constitution (9th edn, OUP 2019) 51.

the definition of parliamentary sovereignty remains unchanged. It remains a deceptively vague and simple term whereby it does not correspond to the current practical powers of Parliament and the current allocation of power in the UK due to constitutional reforms such as the UK’s membership of the EU, the devolution and the introduction of the Human Rights Act 1998. The cases of Jackson35, Anisminic36 and Privacy International37 are a great example in exhibiting the practical powers of Parliament in that Parliament may be questioned and challenged by the courts. In addition to this, events such as the UK’s membership of the European Union and the UK’s exit of the European Union (Brexit) supports the idea of an ever-changing political environment.

35 R. (Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 36 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 37 R. (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114...