Introduction
Parliamentary sovereignty is a system of governance, which denotes that Parliament is the supreme legal authority with the sole capacity to make or end any law. The relationship between Parliament and other arms of government go as far as they do not interfere with or overrule legislations passed by Parliament. The concept of supreme Parliament was discussed by the AV Dicey in his 19th-century book “The Law of the Constitution (1885, p. 39-40).” In his view, Dicey believed that Parliament has unlimited power under the English constitution to make or unmake law in whichever way it deem fit and no other person or body has the authority to overrule or set aside a legislation passed by Parliament (Rawlings et. al, 2013 p 50).
However, the rigidity of the definition propounded by Dicey has not gone unchallenged. Dicey believes that the sovereignty of Parliament does not require justification. Dicey notes that the Courts in interpreting the law, will not take any consideration of the will of the electorate as they know nothing about the people’s will except to the extent that a legislation provide. The principle as developed by Dicey denotes that an Act of Parliament cannot suffer invalidity in the hands of the Courts. Accordingly, his doctrine fails to consider democratic principles and rules.
Parliamentary Sovereignty is the foundation of the British legal and political system (Rawlings et. al, 2013 p 89). Britain has faced major challenges, especially due to the increasing legal, political and economic globalization.
Challenges of Parliamentary Sovereignty
EU Law
The United Kingdom, joined the European Community, or as currently known the European Union, in 1972. The legal order of the community and that of the UK clashed fundamentally. When the UK joined the community, the community had an established principle that all laws emanating within its competence be accorded supreme authority in every jurisdiction of the member states. In the case of 6/64 Costa v. ENEL (1964) ECR 585, the European Court of Justice noted that the member states in agreeing to join the community transferred power to the community and as such necessarily limited their sovereign authority. The position of the Court was legislated by the EC legislative body when it passed the European Communities Act in 1972. The Act provides that all legislations in the UK including those passed by Parliament is to have effect subject to the provisions of the EC law (Goldsworthy 2010 p 287).
The Factortame saga is the most important instance of the clash between EU law and Parliamentary supremacy in the UK. In the case, a Divisional Court ordered that Merchant Shipping Act of 1988 be disapplied pending a preliminary ruling from the European Court of Justice. However, the House of Lords adopted a different view and held that the Divisional Court had no power instead of English law to make such orders. The House of Lords, however, sent a second reference to the ECJ concerning the matter (Goldsworthy 2010 p 289).
In its holding, the ECJ noted that national courts are obliged to set aside provisions of municipal law which might preclude full realization of the EU law. The dictum of Lord Hope tried to settle the matter. Lord Hope affirmed that the UK constitution is dominated by the doctrine of sovereign parliament; however, this was no longer absolute (p. 189). He went further to hold that Diceyan theory of Parliamentary supremacy was qualified (p. 189).
Common Law
Parliamentary sovereignty is a construct of common law principles at least according to some commentators (Ryan & Foster 2013 p. 151). This view is however not shared by all stakeholders. Commentators who hold this view believe that supremacy of parliament can be challenged and be reviewed by the Courts, especially where the Court tries to reconcile contradicting provisions of the law. The common concept of limitation of power goes against the supremacy of parliament. Limitation doctrine requires that all arms of government must operate within the law and not ultra vires. Accordingly, the scope of legislative authority cannot extend beyond what is provided by the constitution (Ryan & Foster 2013 p 152).
In the case of Jackson v. Attorney General, which was about the constitutional validity of the Hunting Act 2004 the Court noted that in certain circumstances it can order for the disapplication of legislation. Lord Steyn in an obiter noted that the UK does not have uncontrolled Constitution. He went further to note that the concept is a construct of common law by way of judges creation. Thus, circumstances can arise where it can be qualified (Ryan & Foster 2013 p 175).
However, not all proponents of the ultra vires doctrine share the same position when it comes to questioning legislations by Parliament. Those who take parliamentary supremacy as immutable hold that the doctrine of ultra vires is only applicable to judicial review of administrative actions and not legislative action by Parliament. However, since common law is a creation of the judges, the courts have tried to reconcile parliamentary supremacy and judicial creativity. In essence, judges are not limited to developing the common law in so far as legislative authority is a preserve of Parliament.
Human Rights Act
The coming into effect of the Human Rights Act in 1998 was not aimed at challenging Parliamentary sovereignty. This view was affirmed by Lord Irvine when he stated that parliamentary sovereignty should not be disturbed. However, there are various views as to whether a Humane Rights Act is an exception to this principle. For instance, section 19 of the Act provides that the Minister has to state whether or not a Bill by Parliament is compatible with the Humane Rights Act before being introduced for discussions (Kavanagh 2009 p. 313).
The purpose of the Human Rights Act is not to provide an exception to the principle at least in the technical sense. In reality, the Act qualifies parliamentary sovereignty as expounded by Dicey. The argument that the Act does not limit parliamentary sovereignty is based on the belief that Parliament can unmake the Act on its own motion and the lack of legal limit in legislation. However, in so far as the Act is operational, these arguments are irrelevant. Furthermore, Human Rights Act has been held to have a constitutionally superior status. The Courts in speaking about the Human Rights Act have held that the Act can only be repealed by express words. The Act also preserves the doctrine of Parliamentary sovereignty in formal terms, but restricts Parliament legislative power in substance.
However, the Act does not give Courts the authority to strike out statutes even when they are incompatible with the Act. The Courts can only go to the extent of issuing a Declaration of Incompatibility (Goldsworthy 2010 p. 79). A Declaration of incompatibility does not bind the government, and Parliament is also not obliged to review a statute based on such issuance (p. 79).
Parliament Act 1911
Parliament Act 1911 also challenges the notion of parliamentary supremacy. Under the Act, the consent of the House of Lords in passing legislation is not necessary. The Act requires that the Speaker of the House of Commons indicates that a Bill has been passed as provided under the Parliament Acts. In the case of Manuel v Attorney General (1983) the Court stated that Parliament can tie the hands of its successor in so far as legislating on issues are concerned, if a statute was passed to control any future legislation on a certain subject. In this respect, the Act binds Parliament as to the manner and form of legislation (Goldsworthy 2010 p 184).
In R (Jackson and Others) v. Attorney General (2005) the House of Lords, guided by the provisions of the Act as amended in 1949 stated that a legislation seeking to extend the life of Parliament beyond five years must be consented to by the House of Lords. Accordingly, the absolute nature of the supremacy of parliament to legislate on any matter is greatly impacted by the Act.
Conclusion
Parliamentary sovereignty is a classical concept in common law courts. In as much as it is the foundation of the UK constitution, new realities have shaken the classical view of the doctrine. In the contemporary legal setting, the doctrine is only applicable in theory. The above-discussed factors show as much.
Reference List
Goldsworthy, J., 2010. Parliamentary sovereignty: contemporary debates(Vol. 1). Cambridge University Press.
Kavanagh, A., 2009. Constitutional Review under the UK Human Rights Act.Cambridge University Press.
Rawlings, R., Leyland, P., & Young, A. L. 2013. Sovereignty and the law: domestic, European, and international perspectives. Oxford, Oxford University Press.
Ryan, M. and Foster, S., 2013. Unlocking Constitutional & Administrative Law. Routledge.
