One of the cornerstones of the UK Constitution is parliamentary sovereignty. Parliamentary sovereignty makes the UK parliament the supreme legal authority in the country that is charged with the role of creating or ending laws. The parliament sovereignty doctrine has stood for a considerable period in the UK constitution. Although it has managed to stand solidly, some constitutional developments have, however affected this sovereignty. The parliament has itself passed some laws that have limited the application of this principle. These laws have been a reflection of the political developments both within and outside the United Kingdom. The aim of this paper is to explore the significance of parliamentary sovereignty to the United Kingdom’s constitution and look at how constitutional changes enacted by Parliament and other legal bodies have weakened this doctrine. Using a multi discipline of resources, the paper will exhaustively explore these two issues and try to demystify unclear issues regarding parliamentary sovereignty.
The UK has been known for having an unwritten constitution. The constitution of the UK does not exist as a single text. However, part of it has been recorded in written text. These written text are often referred to as statues.
A V Dicey highlights the importance and significance of the parliamentary sovereignty doctrine when he describes this doctrine as being one of the British “twin pillars” . The importance of the parliamentary sovereignty lies mainly in the fact that the British constitution is largely unwritten and the written parts comprise the laws that have been passed by parliament. For growth and development of the United Kingdom’s constitution to be realized, the parliament must be made sovereign so that it can continue to create and pass laws that are a reflection of the dynamic social and economic needs of the Unite Kingdom.
This doctrine has been affirmed by various court rulings. For instance, Lord Reid in his ruling, in the Madzimbamuto v Lardner-Burke (1969) case stated that although it would be unconditional for parliament to pass some laws because of their immoral and political impropriety, it is not beyond Parliament’s power to do them and in such a case, if parliament decided to do these things indeed, then the courts would not have authority to hold the acts invalid.
One of the major elements of the parliamentary sovereignty doctrine regards the relationship between parliament and the courts. According to the parliament sovereignty, the parliament is charged with the role of creating and ending the laws that govern the nation. In many countries around the world, parliament is charged with the same role. The courts in these nations, however has the jurisdiction to make alterations to laws passed by parliament that are deemed not to be in the best interest t of these nations. In fact, in times of a constitutional crisis, the courts are often called upon to give proper interpretation of the law. The case is, however, different in the UK. The courts have no authority to tamper with the laws enacted by the national parliament. However, the situation is quite different in the UK. Courts cannot overrule any of the parliament’s legislation. The courts have no legal mandate or authority to judge the laws passed by parliament as invalid. The only instance, when the courts may have a say in matters of parliaments, is when a particular law is deemed not to have been passed using the appropriate procedure. The correct procedure involves a bill passing through both parliamentary houses and later receiving the royal assent. This procedural rule is often referred to as ‘Enrolled Bill Rule”. This was, for example, demonstrated in the Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710 case, where the presiding lord pronounced the only thing that a court of justice can do is to inspect the parliamentary roll, and if a particular law has passed through both houses and has gained the Royal Assent, then the court has no mandate to inquire its manner of introduction into parliament, what occurred before this introduction or how it maneuvered its way through both houses.
The sentiments of this case were again echoed in other cases such as the .P. 54 and Pickin v British Railways Board [1974] AC 763 and Ex Parte Canon Selwyn (1872) J.P. 54.
The UK together with parliament recognize the importance of keeping away from conflict and because of this, they have been opted to tread carefully so as to avoid any acts that may lead to conflict. A statement by one Lord Reid illustrates again the general unwillingness of the United Kingdom courts to questions parliament’s acts. According to him, the courts and parliament have for a century reserved their actions so as not to cause conflict. Investigations being sought by defendants in court that may require the Court to overstep its mandate may easily lead to conflict.
Lord Reid’s statement is again echoed by Larkin, who states that even in cases where the parliament have not completed all the required steps required to pass a particular act, the courts will be very unwilling to get involved because their action may easily be investigated if necessary assent to parliament act that has already been given.
The other element of the parliamentary sovereignty is that the laws passed by a certain parliamentary regime are subject to change or alteration by future parliaments. If a new parliament panel elected after a general election desires to change some laws that were passed by the previous session, it is constitutionally allowed to do so. It is the only body that changes these laws as no other legal body in the UK can do this.
The final element of parliamentary sovereignty is that the parliament can make laws about everything. The constitution gives parliament power to make laws about almost everything. Parliament can make laws about all matters affecting the state without any limitations. This matter can be social, cultural, political and economical.
In recent times, however has been undergoing criticism and opposition. In addition, several constitutional reforms have been instituted significantly restricting this sovereignty.
One aspect that has diluted the sovereignty of parliament has been the devolution of power to the Welsh and the Scottish Parliaments. The element that has, however placed parliamentary sovereignty at the highest risk has been the United Kingdom’s membership to the European Union. This is because most of the EU legislation is supposed to be superior to the UK legislation and inadvertently makes it subordinate. The United Kingdom joined the European Union in 1972. Continued membership to this organization required that are member states is contingent on the member nations conformance to the policies of the coalition some of which require them to relinquish part of their sovereignty. The European Union can enact pieces of legislation that affects member nations directly inform of decisions, regulations and directives. Additionally, the decision in 2009 to create a United Kingdom Supreme Court, which ended the function of the House of Lords as the country’s final court of appeal has also significantly lifted the application of parliamentary sovereignty. The other factor which has undermined the sovereignty of the British parliament has been the Human Rights Act of 2008. Preceded by the European Community Act of 1972, the United Kingdom ratified the EU policies and in the process undermined the sovereignty of its own parliament by making the United Kingdom law subordinate to that of the European Union.
In conclusion, the British government’s sovereignty is under serious threat not only from the devolution of power to the member states but also because of the relative supremacy of the European Union laws, which supersede that of the United Kingdom. Although several bills seeking to reestablish total parliamentary sovereignty have been proposed, none is yet to go through. The remaining possible way through which the nation can regain full parliamentary sovereignty is by withdrawing from the European Union altogether. Alternatively, the UK can convince the Union to agree to devolve legislative power back to the member nations. The two options are, however, very unlikely to happen in the future.
Annotated Bibliography
Stuart Larkin Debunking the idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution. Oxford Journal of Legal Studies, Vol 28, No. 4 (Winter, 2008), pp 70-734.
This source explores the British parliamentary sovereignty from a general perspective. The article explains why a sovereignty entity is required for the existence of any constitution or state. The article then goes on to explain the primary significance of the parliamentary sovereignty of the UK parliament.
Pavlos Eleftheriadis . Law and Sovereignty. Law and Philosophy, Vol. 29, No. 5 (September 2010) , pp. 535-569
This article poses the question why the idea of sovereignty still features in modern legal and political philosophy. The authors try to argue that the idea of “unlimited or absolute” exhibited by sovereignty is quite dictatorial and should not be applied in a modern context.
Adam Tucker .Uncertainty in the Rule of Recognition and in the Doctrine of Parliamentary Sovereignty. Oxford Journal of Legal Studies, Vol. 31, No. 1 (Spring 2011) , pp. 61-88
This article presents a comprehensive account of the law making powers of the British parliament. It explores the limits of these powers and explains how these limits come into being. The article particularly focuses on parliamentary sovereignty and how this affects its conduction of business.
Vernon Bogdanor . Imprisoned by a Doctrine: the Modern Defense of Parliamentary Sovereignty. Oxford Journal of Legal Studies. Vol. 32, No. 1 (Spring 2012), pp 179-195.
This article looks at parliamentary sovereignty as an obstacle in the clarification of constitutional matters. The article argues that in light of the superiority of the European laws which supersede the UK laws, the parliamentary sovereignty has been rendered rather obscure due to the ambiguity of the UK laws.
F.A Trinidade .Parliamentary Sovereignty and the Primacy of European Community Law.. The Modern Law Review. Vol 35, No. 4 (Jul, 1972), pp. 375-402.
This article explores the conflict brought about by the European powers and the sovereignty of the member states. The article claims that the European laws are primary and the laws of the member nations can only act as subordinates to these Europeans laws.
Bibliography
F.A Trinidade .Parliamentary Sovereignty and the Primacy of European Community Law.. The Modern Law Review. Vol 35, No. 4 (Jul, 1972), pp. 375-402.
Stuart Larkin. Debunking the idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution. Oxford Journal of Legal Studies, Vol 28, No. 4 (Winter, 2008), pp 70-734.
Vernon Bogdanor . Imprisoned by a Doctrine: the Modern Defense of Parliamentary Sovereignty.. Oxford Journal of Legal Studies. Vol. 32, No. 1 (Spring 2012), pp 179-195.
Adam Tucker .Uncertainty in the Rule of Recognition and in the Doctrine of Parliamentary Sovereignty. Oxford Journal of Legal Studies, Vol. 31, No. 1 (Spring 2011) , pp. 61-88
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