The doctrine of parliamentary sovereignty relevant to the UK constitution
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Added on 2019-12-18
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However, in the post-war UK history, especially the latest history, the principle of parliamentary sovereignty has been put under strain as a result of some of the constitutional reforms enacted by Labour governments in 1970s and at the turn of the 20th century. The purpose of this essay is to analyse constitutional human act right in UK and the doctrine of parliamentary sovereignty. Therefore, the first section defines and explores the constitutional principle of parliamentary sovereignty; the second describes in short the key constitutional principles that make
The doctrine of parliamentary sovereignty relevant to the UK constitution
Added on 2019-12-18
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THE CONSTITUTION HUMAN ACT RIGHTThis essay explains the doctrine of parliamentary sovereignty and it relevant to the UK constitution. .The essay is divided in three main sections. The first explores the doctrine of parliamentary sovereigntyand defines its meaning. Then it focus on the key constitutional principles that make up UK constitution.Finally, the effect of HRA and ECA have had on the UK constitutional and parliamentary sovereignty.The doctrine of parliamentary sovereignty (or supremacy) is one of the fundamental principles of theconstitution of the United Kingdom. For some academics it is even the most important one. It is thedoctrine of parliamentary sovereignty which explains why there is no codified constitution in the UK. IfBritish Parliament is sovereign, then the constitution and law is what the Parliament enacts. Thedoctrine was first described by academics in the 19th century. However, in the post-war UK history,especially the latest history, the principle of parliamentary sovereignty has been put under strain as aresult of some of the constitutional reforms enacted by Labour governments in 1970s and at the turn ofthe 20th century. Going back to 1970s the major constitutional implications had the British entry intothe European Communities.The purpose of this essay is to analyse constitutional human act right in UK and the doctrine ofparliamentary sovereignty. Therefore, the first section defines and explores the constitutional principleof parliamentary sovereignty; the second describes in short the key constitutional principles that makeup UK constitution; finally, before summarising and concluding with argumentative words that aresupported by authority.The parliamentary sovereigntyThe British doctrine of parliamentary sovereignty is a very complex one. Therefore, it is essential toexplain in the first place the meaning of basic terms such as ‘sovereign’ and ‘sovereignty’, and then theconcept of ‘parliamentary sovereignty’. According to Merriam-Webster Dictionary a term ‘sovereign’refers to a person “that exercises supreme authority within a limited sphere”. Originally this termdenoted a monarch or a ruler. However, the meaning of ‘sovereign’ evolved in the Age ofEnlightenment, when philosophers like Thomas Hobbes, John Locke, and Jean-Jacques Rousseauelaborated the ‘social contract’ theory. According to this theory the people were considered to be thelegitimate sovereign, but they contracted their sovereignty to a ruler in return for his maintaining theirsafety. Hence, if the ruler failed to do this, the people were released from their obligation to obey him.According to the Penguin Dictionary of Politics (Robertson, 1986: 305) ‘sovereignty’:“means the right toown and control some area of the world. It has nowadays nothing to do with monarchy [...]. Its basicmeaning is legitimate rule, as opposed to actual power.”In democracies the understanding of the sovereignty is often connected with the rule of the people,thus one can talk about the sovereignty of the people. Although these two terms defined in that way arequite easy to understand, problems arise when an institution is designated as a sovereign instead of anindividual or the people. This is because an institution such as parliament needs to be precisely defined.It is necessary to specify rules of working, nominating members and determining what is to count as acorrect procedure or valid enactment. This view has been supported in the work of Bogdanor (2009:
280). He also states that “Parliament is sovereign only when it acts in a certain manner prescribed by therules” (Bogdanor 2009: 280–281). But what does it mean that Parliament is sovereign?Probably the first person who described the sovereignty of Parliament as one of the fundamentalfeatures of the constitution of the UK was a British constitutional lawyer Albert Venn Dicey. In his book,An Introduction to the Study of the Law of the Constitution, Dicey (1959: 40) explains that the principleof parliamentary sovereignty means that Parliamenthas:“the right to make or unmake any law whatever; and, further, that no person or body is recognized bythe law of England as having a right to override or set aside the legislation of Parliament”The first implication of Dicey’sdefinition is that the courts cannot overrule the legislation of Parliament.The second implication is that no Parliament of the day can pass laws that future Parliaments cannotchange. For Dicey (1959: 39) the doctrine of parliamentary sovereignty was “from a legal point of viewthe dominant characteristic of our political institutions”. Dicey’sunderstanding of this principle was,therefore, similar to that what is called the ‘rule of recognition’ and consequently made it the mostimportant part of the British constitution; the rule which simply identifies otherrules.Although it is still strongly believed that the sovereignty of Parliament is the central principle of theBritish constitution, many theorists argue that British and every other legal system is based on morethan one fundamental principle and it is hard to grade them. For instance Barber (2000: 137) claims that“the English legal system possesses multiple unranked sources of legal power” and “that neitherKelsen'sGrundnorm nor Hart'srule of recognition can be accepted as universal truths of legal systems”.One of the other crucial principles of the British constitution is the rule of law (Garnett & Lynch, 2009:118). This principle consists of ‘two sovereignties’ (Bradley, 2004: 27). The first one is the sovereignty ofParliament and the second is the sovereignty of the courts. However, the former refers to ‘law making’,and the latter to ‘interpreting and applying the law’. Therefore, both courts and Parliament must coexistand it makes the principle of parliamentary sovereignty much more complicated. The quotation belowillustrates it perfectly: “the sovereignty of Parliament can be said to be based upon decisions of thecourts in applying Acts of Parliament” (Bradley, 2004:29) .Sir Ivor Jennings and his thoughts. He agreedwith Dicey that the Parliament can enact legislation dealing with any subject (Jennings, 1959: 170) andthat the legislation of the Parliament is superior to the jurisdiction of the courts (Jennings, 1959: 254).However, Jennings (1959: 170) claimed also that the supremacy of the Parliament exists only in theory,because it “is a legal fiction and legal fiction can assume anything”. To prove this he gave a famousexamplethat:“if Parliament enacted that all men should be women, they would be women so far as thelaw is concerned” (Jennings, 1959:170).The British government by virtue of the Royal Prerogative has power to enter into international treatiesthat bind the state. However, the doctrine of parliamentary sovereignty implies that no alteration of therights of British citizens and all the other individuals within the UK can be done without theParliament’sconsent. These rights can be altered only by Acts of Parliament. For that reason, if the UKdoes not want to be in breach of its international obligations, the Parliament has to incorporateinternational law into UK law by enacting Acts. (Bradley, 2004:41–42)In 1972the Parliament enacted the European Communities Act which incorporated the Community lawinto the British legal system. By doing this the Parliament incorporated also two revolutionaryprinciples– the principle of direct effect and the principle of supremacy. The first one means that
Community law (Barber, Nicholas. 2000; 131–154) is capable of conferring rights and duties directly onthe individuals and national courts are obliged to interpret all legislation in compliance with theCommunity law. This doctrine was established by the decision of the European Court of Justice in VanGend en Loos case in 1963.The supremacy of Community law was, on the other hand, established in1964by the decision of the ECJ in Costa v. ENEL case. It refers to the fact that the accession of thecommunity.Community law is superior to national laws. In other words, Community law takes precedence in thecase of conflict with provisions of national lawTHE CONSTITUTIONAL PRINCIPLE THAT MADE UP UK CONSTITUTIONAL.Historic feature of the UK constitution is the Royal Prerogative. These powers are formallyexercised by the monarch acting alone, but in reality are exercised by government ministers. It gives theCrown many powers including the power to declare war, make treaties, deploy armed forces, appointand dismiss ministers and dissolve parliament. In reality, the existence of the Royal Prerogative withinthe UK constitution means that the Government can exercise its powers without recourse to Parliament.The most important principles of the UK constitution are those of parliamentary sovereignty andthe rule of law. The former means that Parliament can make or unmake any law without being boundby, or binding, its predecessors or successors respectively.Parliamentary sovereignty therefore means that Parliament is the supreme law-making body,although this is now challenged by the UK’s European Union membership, which gives European lawssuperiority over any conflicting domestic law. Also, over the years, the application of parliamentarysovereignty has been limited by the passing of certain laws by Parliament, such as the Human Rights Act1998.The rule of law incorporates fundamental principles to which the Government and the law haveto conform. For example, this includes the principle that ‘no person is punishable in body or goodswithout a breach of the law’, meaning that individuals will not be punished unless they have committeda clear breach of the law.EFFECT OF HRA AND ECA ON UK CONSTITION AND PARLIAMENTARYIn order to ascertain whether Parliamentary sovereignty has been refined by the Human RightsSOVEREIGHTYThe traditional perspective of parliamentary sovereignty has been derived by A V Diceywho was “famously straight forward (Gordon, M. and Wade’, 2009) In his thinking. He places thesupremacy of parliament above all else: Acts of Parliament must be upheld as supreme in the court oflaw and, through the doctrine of implied repeal as exampled inVauxhall Estates v Liverpool Corporation,no parliament can bind subsequent parliaments through the entrenchment of statutes. Thus, in atraditional orthodox sense it seems reasonable to assume that no institution can threaten thesovereignty of parliament, including the judiciary: parliament has unlimited law making powers aboveand beyond the courts. (Burmah Oil Company v Lord Advocate (1965).Firstly, the HRA 1998 has provided for domestic effect of the European Convention on HumanRights (ECHR) in UK courts. Whilst section (3) provides the judges with an “obligation to go well beyond
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