Public Law (Parliamentary Sovereignty and EU Membership Essay) PDF

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The purpose of this essay is to critically examine the essentiality of the doctrine of Parliamentary sovereignty concerning the posed statement. The focus of the paper will discuss the effect of EU membership and the limits revealed by the departure of the UK. There have been many contemporary chall...

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The purpose of this essay is to critically examine the essentiality of the doctrine of Parliamentary sovereignty concerning the posed statement. The focus of the paper will discuss the effect of EU membership and the limits revealed by the departure of the UK. There have been many contemporary challenges to the sovereignty of Parliament and I believe that despite the principle appearing constitutionally fundamental, it may be diminished or at minimal limited. This paper has been divided into three main parts. The first part deals with the legal doctrine itself and will follow onto discuss the constitutional importance of legislative sovereignty. The final section of the paper will examine the challenges derived from EU Membership and the limitations identified. The traditional understanding of Parliamentary sovereignty is defined by Dicey as “…the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” 1This is a popular orthodox view taken by many academics and outlines the idea that in the UK Parliament has the ultimate authority to make any laws it pleases, without limitation. Dicey also, expresses the view that nobody has the power to invalidate an Act of Parliament. The development of Parliament’s sovereignty has been one of political authority and is considered a legal rule. It has been stated that the doctrine ‘was not established by judicial decisions, however; it was settled by armed conflict and the Bill of Rights and the Act of Settlement. The judges did no more than acquiesce in a simple fact of political authority, though they have never been called upon precisely to say so.’ ,2 which is taken to mean that the history is rooted in power and has not been given by a statute. This principle is key to the UK’s constitutional law and holds the position of ‘the Queen-in-Parliament’ as it is the final formality of our law-making process. 3 The proposed view of Parliamentary sovereignty is that the courts do not have the authority to strike down any legislation and are in fact bound to apply Acts of Parliament. This is outlined clearly in the language used in precedents such as Mortensen v. Peters (1906). It was stated by Lord Justice-General, “In this Court we have nothing to do with the question of whether the Legislature has or has not done what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal sitting to decide whether an Act of the Legislature is ultra vires as in contravention of generally acknowledged principles of international law…” and “…For us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms.” 4This demonstrated the court’s attitude regarding clashes between domestic and international law, and thus enforced the principle that Parliament is the supreme law-maker. Ungoed-Thomas J, furthers this idea in his comments within Cheney v. Conn [1968], “What the statute itself enacts cannot be unlawful because what the statute says and provides is itself the law, and the highest form of law that is known to this country.” 5 Essentially, it is believed that Parliament sovereignty implies that Parliament has free range of possibilities within the law and is legally unlimited in its powers. Some academics have argued that Dicey’s traditional view is outdated and has little place in the constitution of the modern United Kingdom. Despite this, I believe the doctrine of the supremacy of Parliament is unarguably still a key feature of the common law in the traditional sense, for reasons aforementioned. Legislative sovereignty is a central organising principle with relation to the constitution and provides authority for ‘far-reaching’ constitutional changes. The function of sovereignty explains the structure of sources, provides an access point for understanding the nature of the constitution and

1 A.V.

Dicey, Introduction to the Study of the Law of the Constitution (8th edn, 1915) 37-38.

W.I. Jennings, The Law and the Constitution (London: University of London Press, 5th edn, 1959). 2

Brian Thompson and Michael Gordon, Cases and Materials on Constitutional and Administrative Law (12th end, OUP 2017) 46-47. 3

4 5

Mortensen v. Peters [1906] 8 F. (J.) 93, 100-101. Cheney v. Conn [1968] 1 W.L.R. 242 .

transmits a symbolic message about the potential legitimacy. 6 Supremacy of Parliament and the constitution itself are believed to be one and the same or interchangeable. The basis of Parliamentary sovereignty ensures the constitutional primacy of democratic decision-making as the elected assembly of the Government are in a position to make any law representative of the entire population. 7 This is a juxtaposition to the other bodies within the UK law system. The judiciary is unelected, unrepresentative or politically unaccountable but are in charge of enforcing the law. It has been argued that this may, justify the deprivation of limitation on Parliaments’s legislative powers.8 The legal doctrine is said to be paradoxically constitutionally fundamental and constitutionally contested. Its fundamentality is rooted in its provisions that sit in place of a written constitution. Parliamentary sovereignty establishes a democratic institution and aids understanding of the law itself. It has been proven to be an administrative tool within the law-making process and its sources. W.I. Jennings stated, ‘The supremacy of Parliament is the Constitution.’ 9, which alluded to the essentiality of the principle. This was supported by the view, provided in R v (Miller) [2016], “The most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and the legislation enacted by the Crown with the consent of both Houses of Parliament is supreme…Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses.” 10 Parliamentary sovereignty is considered a construct of the common law. R (Jackson) v. Attorney General [2005] allowed the opportunity for discussion between judges, regarding the principle. The key issue in this case related to the process of producing legislation. Lord Steyn stated, ‘…If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism… whether this is constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.’ 11 This view supports the idea that Dicey’s sovereignty is considered outdone and no longer appropriate in the contemporary UK. Lord Hope commented on the limits to sovereignty placed by Parliament themselves and suggested that Parliament would be in breach of the UK system by abolishing judicial review. Each dicta clearly illustrated the view that the courts would not accept a violation as this standard and would not comply with legislation. It could be argued that legislative sovereignty has been challenged in many forms, for example; EU membership, referendums, devolution and the Human Rights Act 1998, however, some maintain the view that Parliament remains sovereign. The membership of EU poses constitutional issues for the sovereignty of legislation, these issues became apparent with the UK’s exiting. The relationship between International (EU) Law and Domestic Law, directly contradicts the principle of Parliamentary sovereignty. Since joining the European Union, The UK has been under obligation to follow or comply with International laws. The European Communities Act 1972 provides the provisions to bring these laws into practice in the UK. This statue is as follows; - s.2(1): ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly’

6

M Gordon, Parliamentary Sovereignty in the UK Constitution (Oxford: Hart, 2015) 25-28.

7A

W Bradley, K D Ewing and C J S Knight, Constitutional & Administrative Law (Pearson, 17th edn, 2018) 49. 8

M Gordon, Parliamentary Sovereignty in the UK Constitution (Oxford: Hart, 2015).

W.I. Jennings, The Law and the Constitution (London: University of London Press, 5th end, 1959), 314. 9

R v (Miller) Secretary of State for Exiting the EU [2016] EWHC 2768 (admin), [2017] 2 WLR 583, 20. 10

11

R (Jackson) v. Attorney General [2005] UKHL 56; [2006] 1 A.C. 262, [102].

- s.2(4): ‘any enactment passed or to be passed... shall be construed and have effect subject to the foregoing provisions of this section’. 12 This supports the idea that any national law that may come into power can only have effect subject to EU regulations and therefore promotes EU supremacy. Costa v ENEL [1964], illustrates the proposition that a national departure from EU rules undermines the union and compliance is essential to the system, “…[T]he rights created by the Treaty, by virtue of their specific original nature, cannot be judicially contradicted by an internal law…without undermining the legal basis of the Community.” 13 This could be argued, to provide evidence of the limitations of the legislative powers of Parliament. The courts have tried to avoid confronting the implications of The European Communities Act 1972 and us statutory interpretation to attempt to find compatibly within the laws. this allows the issue of clashing sovereignty to be avoided in practical situations, as seen in MacCarthy’s (1979) 14where ‘robust’ statutory interpretation was introduced. This does not, however, resolve the issue where interpretation is not possible. Factortame litigation forced the court’s to confront the issue at hand. The courts decided to take a different approach and disapplied an Act of Parliament that violated EU Law. 15This meant that the law was set aside. Lord Bridge commented, ‘…Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.” This highlighted the effect of EU membership and the weakening of sovereignty. In his speech, he proposed Parliaments’ voluntary acceptance of the limitation and amounted the European Communities Act 1972 as the source of limits. It may be seen, that the courts recognise these issues, however, fail to see it as a departure from sovereignty. Some academics view the decision as voluntarily taken upon by Parliament and so poses a possibility of reversal, it could, therefore, be argued to provide evidence for the continuing existence of sovereignty. Accordingly, many maintain the view that a departure of in the traditional sense may not lead to the displacement of fundamental importance or existence. Brexit can be seen to provide an example of the proposed weakening as Parliament is attempting to remove its’s own limitations by referendum. However, I perceive this as a challenge to absolutism sovereignty as the referendum was bound by the decision of the people and thus contradicting the principle of sovereignty. Supremacy of ‘retained EU law’ has been argued to be provided by the EU (Withdrawal) Act 2018 and the 2019 Bill. This showed Parliaments’ aim to preserve EU derived law within the UK through a transition period and the proposition that domestic laws will be brought in to replace but support the current laws from the EU. Another issue highlighted by Brexit is the Governments proposal to delegate power after leaving as numerous new legislation will be required, this is seen in the EU (Withdrawal) Bill 2018-19. This challenges the sovereignty of Parliament as power will not immediately rematerialize. The courts are required to allow Parliament to intervene, as seen in Miller (2017)16 when the notification of leaving to EU was given. The question of the necessity of an Act for the notice of an exit was risen. It has been shown that the courts supported the reshaping of sovereignty but upheld the view that sovereignty still exists. Unarguably this suggests that Parliamentary sovereignty is constrained by politics, democracy, morality and practicalities, even if the seriousness of the issue is debatable, thus providing evidence for the legal and political limitations. Many academics viewed the introduction of the European Communities Act as a direct contradiction of sovereignty. I believe it attacks the very principle/basis of the doctrine and cannot coexist. Lord Hope illustrated this position in R (Jackson)

12

European Communities Act 1972.

13

Case (6/64) Costa v ENEL [1964] E.C.R 585.

14

MacCarthy’s [1979] 3 All ER 325.

15

R. v Secretary of State for Transport, ex p. Factortame (No. 1) [1990] 2 A.C. 85,142-143.

16

Miller (2017) UKSC 5.

v Attorney General, “Our constitution is dominated by sovereignty of Parliament. But parliamentary sovereignty is no longer, if it ever was, absolute” 17 It has become apparent that Dicey’s views may be invalidated by the introduction of the EU and has been highlighted by its’ very exiting.

17

R (Jackson) v Attorney General [2005] Ibid, para [104].

Bibliography Table of Cases 1. Mortensen v. Peters [1906] 8 F. (J.) 93. 2. Cheney v. Conn [1968] 1 W.L.R. 242. 3. R v (Miller) Secretary of State for Exiting the EU [2016] EWHC 2768 (admin), [2017] 2 WLR 583. 4. R (Jackson) v. Attorney General [2005] UKHL 56; [2006] 1 A.C. 262. 5. Case (6/64) Costa v ENEL [1964] E.C.R 585. 6. MacCarthy’s [1979] 3 All ER 325. 7. R. v Secretary of State for Transport, ex p. Factortame (No. 1) [1990] 2 A.C. 85,142-143. 8. Miller (2017) UKSC 5. Table of Legislation 1. European Communities Act 1972. Secondary Sources 1. Dicey A.V., Introduction to the Study of the Law of the Constitution (8th edn, 1915) 37-38. 2. Jennings W.I., The Law and the Constitution (London: University of London Press, 5th edn, 1959). 3. Thompson B and Gordon M, Cases and Materials on Constitutional and Administrative Law (12th end, OUP 2017). 4. Gordon M, Parliamentary Sovereignty in the UK Constitution (Oxford: Hart, 2015). 5. Bradley A W, Ewing K D and Knight C J S, Constitutional & Administrative Law (Pearson, 17th edn, 2018)....