Introduction
The standard theory of Parliamentary Sovereignty set out by AV Dicey in An Introduction to the Study of the Law of the Constitution has often been referred to as the ‘orthodox’ theory of Parliamentary Sovereignty, and taught to generations of law students ever since the 19th Century. Dicey’s proposal was later regarded as the ‘basic principle’ of the British constitution: that a statute is to be taken as being the highest form of law within the British constitutional structure (Loveland, 2006, 23). Therefore, this implied that the British Parliament alone, is the sovereign lawmaker in the country, and no other institution had the same powers, may it be the monarchy or the courts.
However, with time, judges have taken their time in restating the unambiguous nature of this principle in key judgments. This is evident from, for instance, the speech of Lord Simon in British Railway Board v Pickin [1974] AC 765, HL. Nevertheless, various improvements have been made in most of the last period of the 20th Century, most significantly, the inclusion of Britain to the EEC, the adoption of the Human Rights Act (HRA) 1998, the devolution process, and the creation of the Supreme Court. The paper tries to evaluate how the above four mentioned elements have altered this kind of relationship, in addition to arguing that the contemporary concept of Parliamentary sovereignty is much more complex than that suggested by Dicey.
The Human Rights Act has altered the concept of parliamentary supremacy in a number of ways. For instance, the introduction of the Act’s section 4 – the ‘declaration of incompatibility’, is a good illustration of this argument. According to this section, superior courts have the responsibility of issuing aforementioned declaration, in case it is unable to interpret an enacted provision in accordance with a Convention/HRA-granted right. Although this declaration does not have the effect of striking down an Act of Parliament, it does allow the Court to seriously weaken the offending provision’s legitimacy. This means that the Government can be compelled to change a statute based on this Convention right. This can be illustrated by the case of A v Secretary of State for the Home Department [2004] UKHL 56, concerning the Government’s use of ‘control orders’ to detain for an indefinite period, without charge, any foreigner suspected of terrorism activities. The significance of the judgment in A is twofold. Firstly, demonstrates how theHRA had allowed judges to participate in issues that were initially considered non-justiciable and beyond their jurisdiction and secondly, is the way judges used the HRA to question the legitimacy of an Act of Parliament (Nicol, 2004).
R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85
This case is among the most important cases that indicated how far the British legal system and its outset of parliamentary sovereignty had transformed as a result of the UK’s accession to the EEC is the Factortame litigation. This case was based on the Merchant Shipping Act (MCA) 1988, enacted by Parliament to protectproductive fishing grounds for those ships carrying British registrations. According to Factortame, a Spanish fishing fleet, this was incompatible with EC law. The ECJ (EC Commission v United Kingdom [1989] ECR 3125), ruled that MSA had to disapply by the British Courts, as the EC law was superior to domestic legislation and had to be given effect by domestic courts. The House of Lords duly complied, and in June 1990 found in favor of Factortame (No 2) [1991] 1 AC 603, despite the express will of Parliament as represented in the MSA. According to the judges at the House of Lords, the sovereignty of parliament concept was not much interfered with, despite the superiority of EC law.
The devolution process
The devolution process is yet another way in which the analysis of how the supremacy of parliament has been affected can be illustrated. The devolution process that was experienced in the United Kingdom beginning in 1998, has made considerable changes to the structure of the United Kingdom constitution as far as parliamentary supremacy is concerned, as was advocated for by Dicey. Initially, powers to make laws were vested in the parliament of the United Kingdom, but with devolution, some of these powers were transferred to other legislative bodies located in Wales, Scotland, and Northern Ireland (Turbin and Tomkins, 2007, 335).These bodies were accorded the responsibility of promulgating both delegated and primary legislation, exclusive or extending to these areas. This devolution was guaranteed by three key Acts, The Northern Ireland Act 1998, The Government of Wales Act 1998, and The Scotland Act 1998. Although the powers to make laws for the three regions can be withdrawn unilaterally, it is evident that the supremacy of parliament in Britain does no longer hold, as was argued by Dicey. Thus, devolution of powers in the U.K is a good illustration of how the constitutional structure is changing in the 21st Century, regarding the sovereignty of parliament as was held during Dicey’s time.
Creation of the Supreme Court
On its creation, the Supreme Court of the United Kingdom was accorded powers over issues under Scottish Civil Law, Northern Ireland law, and English Law. The judicial powers of the Supreme Court are limited, due to the parliamentary sovereignty doctrine. The court has no powers to overrule any parliamentary primary legislation. However, the court has constitutional powers to overrule secondary legislations, particularly if they are ultra vires. Additionally, the Supreme Court has powers in making a declaration of incompatibility, meaning that it believes that the legislation in question is not harmonious with any of the rights as outlined by the European Convention on Human Rights (Turbin and Tomkins, 2007, 336-7). Thus, although the Supreme Court was not given the powers to overrule the primary legislation, it is clear that its powers to influence secondary legislation considerably affect the doctrine of parliamentary supremacy, as was advocated for Dicey.
Conclusion
The main argument advanced by this essay has been the idea that the modern concept of parliamentary supremacy is far more complex and nuanced than that proposed by Dicey. The point is the orthodox theories of supremacy, as advanced by Dicey and evident from cases such as Pickin; no longer reflect the reality at the heart of the relationship between the courts and the legislature. The judiciary has clearly understood, with the accession of the UK to the EEC and the passing of the HRA, that the rules of this relationship have been willingly altered by Parliament – and, on this basis, have sought to redefine the relationship along new lines.
Additionally, the devolution process and the creation of the Supreme Court, further demonstrates the complexity of the concept of parliamentary supremacy in the modern times. By implementing constitutional changes that allowed Scotland and Ireland to carry out domestic legislations without any interference from the outside is a clear indicator of this complexity. Moreover, even though the Supreme Court has no powers of overruling primary legislations, its powers to overturn secondary legislations is a good illustration of how the supremacy of parliament has been affected in the modern times.
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