“For the time being and notwithstanding the various challenges to it parliamentary sovereignty remains formally intact as a matter of law.” Discuss the above statement. What is the significance of parliamentary sovereignty to the UK constitution and has the doctrine has been weakened by constitutional changes?
Introduction
The principle of Parliamentary sovereignty is based on the notion that Parliament represents the will of the people. The courts have upheld the view of the sovereignty in the past more than 350 years. The above statement in the title refers to the dilution of the concept of Parliamentary sovereignty with the advent of European Union and International Agencies which the Parliament is bound to. This is beside the already prevailing debate on the judiciary vs. Parliament within the context of domestic laws. For example, The Human Rights Act 1998 and judicial precedents which the Parliament cannot afford to ignore. There has also been the debate, whether constitution or Parliament is supreme. The doctrine of Parliamentary Sovereignty of the United Kingdom is unique in that there is no equivalent in the comparative constitutional law. It is mainly because of its unwritten nature unlike other written constitutions of the United States or German Bundestag with their powers limited by their respective constitutions.
Developed by Dicey, the doctrine implies the legal supremacy of a statute which is not the literal meaning of supremacy of the Parliament.
What the doctrine implies is that there is no higher source of law than an Act of Parliament. Parliament has the authority to make or repeal any law including a law that infringes an international law or the one that is contrary to the principle of the common law.
Westminster Parliament
The sovereignty of Westminster Parliament confers importance to the British constitution. Constitutional text binds judges, government and Parliament alike though the British Constitution does not stipulate that Act of Parliament should be subject to constitutional limitations.,.
Duty of Court
The courts are bound to uphold and enforce an Act of Parliament recognizing the legal supremacy stemming from the Parliament.
Human Rights Act 1998
In this enactment, Parliament itself has given the liberty to courts to interpret any law that may be inconsistent with European Convention. Section of 3 of the Act says that court can depart from the legislative intention and modify the meaning to the extent possible.
Acts of Parliament Vis a Vis International
No international law can bind the Parliament. All international treaties have the only persuasive force. If a Parliament’s law happens to be inconsistent with the rule of international law, the former prevails.
If courts are given the power to repudiate the doctrine of Parliamentary sovereignty by not allowing Parliament to infringe unwritten rights, it amounts to assuming ultimate authority by themselves and transferring political power from Parliament to judges.
Rule of Law
Dicey has argued in his book “The Law of the Constitution” in 1885 that constitution has two fundamental doctrines: the sovereignty of Parliament and the rule of law and that there is more to the constitution than to law.
An Act of Parliament, the highest law of the country cannot not be declared as illegal.
If the language of an Act is unambiguous, court is obliged to modify the meaning in accordance with the social policy.
A court can only look into the role of the Parliament and examine whether the bill has moved from both houses and received the Royal Assent.
Even if an Act has been passed erroneously, it is for the legislature to repeal it and until its repeal, courts have to obey it.
The constitutional validity of Hunting Act 2004 and Parliament Act 1949 has been upheld as an important milestone in Parliamentary Sovereignty.
An Act of Parliament cannot be held as ultra vires but only its subordinate legislation.
A statute of the Parliament would prevail over international treaties that are binding on the UK government.
Parliament cannot be prevented to enact a legislation that is contrary to the fundamental principles of human rights. Parliament has the liberty at its peril.
Classic view
The classic view is that the unwritten constitution of the UK gives widest possible supremacy to the Parliament of the Westminster. This is contrary to the written constitutions of the USA and Germany which spell out powers of the Parliament. The classic view is based on the Dicey’s explanation that sovereignty is to be understood as the hierarchical order of power or a delegatory arrangement. It follows that the terms of Parliamentary sovereignty cannot be altered except by the Parliament itself. Thus, the UK constitution is the most flexible as well as rigid. This is a paradoxical situation that was exposed in the Jackson judgement of the House of Lords in which the appellants argued that the Acts of the Parliament could not have been lawfully passed without reducing the power of the House of Lords which argument is in full agreement of Diceyan Orthodoxy. House of Lords rejected this view and held that Parliament was at liberty to change its own rules of procedure. Consequently the enactments passed in accordance with procedures are law although the enactments were interfered with sovereignty. Thus, Dicey’s ideology of Parliamentary powers and immunities are as follows. 1. Power: it can make or unmake any laws and has the exclusive power to make law. 2. Immunity: It enjoys the immunity of enacting law against any person or body which cannot be changed or nullified by any person or body.
In Wauchope case, Lord Campbell made it clear that no court of law could question the mode in which an Act was introduced in the Parliament once it was satisfied that the Bill passed through both houses and received the Royal Assent. It had no right to look into what transpired before its introduction and what went on during the various stages through both houses.
It is argued that Lord Campbell’s argument is ambiguous in that they refer to both Parliament and to its outcomes, the Acts. He must have intended to say that though courts could not go into the propriety of the internal procedures of Parliament, it was still incumbent upon the court to judge what had been enacted was really an Act i.e whether it passed through both the houses and received Royal Assent. In Prince’s case it was held that the courts could check if the bill was passed in accordance with rules relating to the legislative power without relying on the words of the Parliamentary clerk.
The Jackson case, it was decided that Hunting Act 2005 was not a delegated legislation but an Act of Parliament. It has been argued that this judgement seems to reject the views of Dicey as well as Wade. Thus, Parliamentary sovereignty has the power to change any existing law. But until it is changed, the old law would remain valid.
It is argued that Parliament has a duty not to act contrary to Parliament Acts, the Representation of People Acts and other rules having a bearing on the Parliament’s composition and procedures. If it breaches this duty, it incurs a disability renderings its actions ineffective. Thus a resolution cannot amend an Act of Parliament.
Conclusion
In view of the above analysis, it can be concluded that Parliament sovereignty is still continuing without any limitations of any kind. The Parliamentary sovereignty is unfettered, and no court or judge can undo the power of sovereignty by invalidating an act considered by it as illegal. Even in the Human Rights Act 1988, section 3 three empowers the court to interpret any legislation as consistent with the Convention Rights. Otherwise, the court can only invoke section 4 as a notice to the Parliament to consider repealing it or amending it so as to make it consistent with Convention Rights. Parliamentary Sovereignty, therefore, can be said to be intact as long as the Parliament continues to hold its representative character. The Diecy’s view of the sovereignty of the Parliament has been critically examined and what has emerged is that Parliament is bound by its own procedural rules which it cannot infringe. To that extent, its sovereignty can be said to be limited. The fact that UK‘s constitution is an unwritten one renders the Parliament of the UK as a unique creature having no parallel in the rest of the world.
Annotated Bibliography.
Cases
Cheney v Conn [1968] 1 All ER 779
This case is relevant because the Finance Act 1964 was argued as being applied to an illegal issue of money. The court opined that although the construction of nuclear weapons was contrary to international law, the Act of Parliament cannot be held to be illegal, consistent with sovereignty of Parliament
Bellinger v Bellinger [2003] UKHL 21, (2003)
This case is crucial because the court held that although the language of the Rent Act 1977 was unambiguous, it was obliged to modify the meaning in accordance with the social policy. As such, the provision relating to the survivor of couples living together as husband and wife were held to be equally applicable to the survivor of homosexual couples living together in a close and stable relationship. The discriminatory treatment towards homosexuals was held to be incompatible with European Convention Rights and therefore, cannot be justified by any legislative aim.
Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8CL & F 710)
This case is relevant because it was made clear that court’s scope was restricted to examine whether an enactment had its Royal assent after going through Commons and Lords consistent with the principle of Parliamentary Sovereignty which prevents a court to pass judgement on prior proceedings. That is, a court cannot enquire how a bill was introduced, what transpired before introduction and what took place at the both houses before being passed.
Lee v Bude and Torrington Railway Co (1871) LR 6 CP 577)
This case law is relevant because it has been held that even if an Act has been passed erroneously, it is for the legislature to repeal it and until its repeal, courts have to obey it.
Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262
This case law is relevant because it is an important milestone in the Parliament Sovereignty. Constitutional validity of the Hunting Act 2004 and Parliament Act 1949 was challenged. The House of Lords upheld the validity of both the Acts.
Manuel v Attorney General [1983] Ch 77, 86
This case is applicable to Parliamentary Sovereignty as the judge has claimed that the court has the duty to obey and apply every Act of Parliament, which cannot be held to be ultra vires. However, there can be an enquiry into the purpose of the Act and power to hold statutory instruments and subordinate legislation as ultra vires
R v Lyons [2002] UKHL 44, [2003] 1 AC 976
This ruling is important because, the House of Lords re-affirmed that statute prevailed over international treaties binding on the UK. Lord Hoffman has stated that sovereign legislator in the UK is Parliament which if brings an enactment, courts are bound to apply it whether or not it is in violation of an international treaty. However, courts claim that they have a duty to interpret statutes which power can be very far reaching.
R v Secretary for the Home Department [2000] 115 (HL)
The decision in this case is relevant because the judge has observed that by virtue of its Sovereignty, the Parliament can enact contrary to fundamental principles of human rights. But the parliament must be ready to justify and accept the political cost. Fundamental rights could not be contravened by ambiguous words. As such in the absence of express language, courts can apply constitutionality in spite of sovereignty of parliament.
Legislation
Human Rights Act 1998
This enactment is an important milestone in the supremacy of Parliament in that though the enactment is to comply with the provisions of European convention, the enactment does have sections 3 & 4 to preserve the supremacy of the law of the land.
Finance Act 1964
Hunting Act 2004
Parliament Act 1949
Rent Act 1977
In all the case laws above, these Acts Parliament have been discussed as to their constitutional validity
Books
Turpin Colin and Tomkins, British Government and the Constitution: Text and Materials (Cambridge University Press, 2011).
The quote in the title appears in this book. This books deals with Parliamentary Sovereignty starting from the doctrine developed by Dicey.
Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, 1999).
This book again insists on the Supremacy of Parliament as enjoined by the British Constitution. The author also deals with views of the critics that Parliament’s supremacy is subject to the limits of common law. If courts are given the power to repudiate the doctrine of Parliamentary sovereignty by not allowing Parliament to infringe unwritten rights, it amounts to assuming ultimate authority by themselves and transferring political power from Parliament to judges.
Chapter 5 The Legislative Sovereignty of Westminster Parliament < wps.pearsoned.co.uk/ema_uk/index.htmlPearson Education >
This book explains the Sovereignty of Parliament as opposed to that of International law. No international law can bind the Parliament. All international treaties have only persuasive force. If Parliament law happens to be inconsistent with the rule of international law, the former prevails.
Eleftheriadis Pavlos , Parliamentary Sovereignty and the Constitution, (2009) Canadian Journal of Law and Jurisprudence , 22 (2).
This article critically evaluates Dicey’s concept of Parliamentary Sovereignty.
