Introduction
Parliamentary sovereignty is one of the most sensitive subjects on the United Kingdom legal and political agendas. Since the monarch of the country was made subordinate under the United Kingdom unwritten constitution, numerous questions regarding the ability of Parliament to adopt the acts of supreme legal force has been regularly contested. In particular, there is a strong division among the UK legal scholars in this regard. While the first group strongly believes that the Parliament of the United Kingdom is not confined by anything and anyone, others are the staunchest advocates of the idea that the Parliament’s powers are restricted by the domestic constitutional law, the process of European integration (and potential disintegration), and basic human rights, the practice of judicial review, and the supremacy of the executive in the House Of Commons.
One of the most outstanding United Kingdom constitutional scholar, whose works shaped theoretical underpinnings of the United Kingdom constitutional theory as well as the unwritten of the Constitution, Albert Venn Dicey belongs to the first camp. The main tenet of his works is that the Parliament is free to make any law of policy. Thus, in accordance with his opinion, the Parliament of the United Kingdom is limited in passing only those laws, which attempt being binding to its successors(Gecer 105).
This position was fervently contested by not less renowned legal theorists Mr. Trevor Allan and Sir William Wade. They argued that the adoption of the European Communities Act 1972, as well as the Human Rights Act of 1998 imposed serious limitations on the concept of parliamentary sovereignty. In particular, Allan argued that these acts should be viewed as the form of ‘entrenched legislation’, which seriously undermine the principle of parliamentary sovereignty (Allan 387). Although these positions are subject of hot academic controversies today, the practice shows that these ideas are becoming prevalent in the constitutional legal though of the Kingdom.
The Impact of European Union Legislation
In particular, the European Communities Act, ratified in 1972, legalized the idea of Community legislation in the country. Among other important issues, section 2 (1) of this instrument recognized that the rights, obligations and liabilities created by or arising under the Treaty are enforced in the United Kingdom without any further enforcement or validation. This position of the European Union was further reinforced by the European Union Act 2011. R (Factortame Ltd) v Secretary of State for Transport [1999] UKHL 44 ultimately resolved the dispute from the judicial point of view, legitimizing seniority of the European Union law over the domestic one (Harris 96).
However, it is important to emphasize that the superiority of the European Union law over the national legal provisions may be abolished by the results of the upcoming European Membership Referendum, which is scheduled to take place on 23 June, 2016. The first referendum on this subject was conducted in 1975, and then 67% of the participants declared that they support the idea of unified Europe. However, the nature of the European Union, as well as the scope of the member states rights and obligations substantially evolved. The surveys demonstrate that the number of those, who support Brexit is expected to be significantly higher, though accurate estimates are not available yet. Despite the fact that the dissolution of the UK-EU relations will remove the question of EU law supremacy from the agenda, the issues connected with judicial review and human rights supremacy will remain intact (Masterman 501).
The Impact of Human Rights Legislation
In particular, the adoption of the Human Rights Act 1998 explicitly demonstrated that the United Kingdom was strongly supporting the idea of respecting and enforcing the provisions of the European Convention of Human Rights in the country (Allan 386). The adoption of this act limited the rights of Parliament in regards to the regulation of human rights, covered by the ECHR. Thus, it is prohibited for the legislative body to adopt any law, which limits, restricts or otherwise encroaches upon individual human rights and liberties of United Kingdom citizens (Gecer 67).
In addition, this act emphasized the importance of unlawfulness to adopt the laws, which bind successive legislative convening of the Parliament. It is considered as one of the most fundamental rights of the British people to review and amend the acts, which had been passed by the previous parliaments.
Furthermore, it is the judges who apply the law, and their viewpoints often contravene the directions chosen by the Parliament. For instance, in Abu Hamza al-Masri extradition case, the court ruled that his extradition to the United States of America would not contravene individual rights of the suspect, despite the fact that the ECHR expressly prohibits extradition to the countries, where a suspect may experience inhumane or degrading treatment.
Delegated legislation and judicial review
The practice of delegated legislation is one of the key characteristics of the United Kingdom parliamentary system. This principle purports that a legislative act can be adopted by the authority, other than the Parliament through the issuance of a specific empowering instrument. However, the practice of delegated legislation is subject to strict parliamentary and judicial control.
In the first case, the acts adopted by the empowered authorities may require approval of the Parliament in order to enter into force, as well as it may be vetoed by it. Yet, the practice demonstrates that there is a deeply rooted constitutional convention in the UK that the House of Lords does not vote against the adoption of the delegated legislation (Saunders and Dziezic 43). Instead, it advises the empowered authority to introduce the improvements into the text.
Secondly, judicial review is thought to be the most effective tool for exercising control. Because in this case the acts are not adopted by the sovereign, the courts may invalidate them by ruling that an act has been adopted ultra vires, i.e. beyond the scope of the powers conferred on that authority by the Parliament. A piece of a delegated legislation may be declared void on the basis of one of the three main grounds:
Substantive ultra vires – when the empowered authority adopted the act, for which the right has not be granted by the supreme legislative authority.
Procedural ultra vires – when the procedure, outlined by the Parliament for the adoption of such legislation has been violated.
Finally, the courts may repeal a piece of secondary legislation if it is unreasonable.
Supremacy of the Executive in the House of Commons
The electoral system of the United Kingdom revolves around the idea of a single party majority rule, meaning that the executive branch can pass a law, which corresponds to the interests of the government. In the meantime, adoption of the Parliament Act 1911 substantially reduced the power of veto of the House of Lords in the financial context. Thus, in accordance with this law the veto may be temporary only (Masterman 501).
However, the practice also shows that non-financial bills of the government may still be defeated by the House of Lords, especially during the periods of minority government rule, though sometimes the bills brokered by the majority governments are vetoed as well. To illustrate, on 25 February 2015 the government of Cameron did not get the support of the House of Lords in relation to providing greater protection to the domestic workers, who work overseas. The makeup of today’s House of Lords is highly heterogeneous, with 250 members from the Conservative Party, 212 members of the Labor Party and 178 crossbenchers.
Works Cited
Allan, Trevor. The Rule Of Law, Parliamentary Sovereignty, And A Ministerial Veto Over Judicial Decisions." The Cambridge Law Journal, 21(2) 385-88, 2015, Print.
Gecer, Ahmet Emrah. “The Principle Of Parliamentary Supremacy In The UK Constitutional Law And Its Limitations”. Web. 5 Apr. 2016.
Harris, Eleonora. “Redefining Parliamentary Sovereignty: The Example of the Devolution Referenda”. Web. 5 Apr. 2016
Masterman, Robert. “Juridification, Sovereignty and Separation of Powers”. Parliamentary Affairs. 62(3), 499-502, 2009. Print
R (Factortame Ltd) v Secretary of State for Transport [1999] UKHL 44
Saunders, Cheryl and & Dziedzic, Anna. “Parliamentary Sovereignty and Written Constitutions in Comparative Perspective”. Web. 5 Apr.2016
