The Effect of UK's Membership on the Sovereignty of Parliament

This essay evaluates the effect of UK's membership on the sovereignty of Parliament, discussing the doctrine of parliamentary supremacy, arguments for and against it, and the impact of European and binding treaties.

Running head: PUBLIC LAW
Public Law
Name of the Student
Name of the University
Author Note

1PUBLIC LAW
The doctrine of the supremacy of Parliament is one of the basic principles of UK’s
Constitution. There are many academics who believe this principle to be the most important one.
The doctrine of parliamentary supremacy also helps in explaining why you get is not have a
written constitution. If the argument is sovereign, then the Constitution and the law is what that
will be enacted by the Parliament. The notion of parliamentary sovereignty was mentioned by
the attendees during the 19th century. However, in the history of postwar Europe, particularly
recent history, the doctrine of parliamentary sovereignty has faced a lot of pressure due to the
constitutional reforms that were introduced by the liberal governments during the 1970s and at
the end of the last century.1 One of the major constitutional implications included the entry of the
UK into the European Community. In the present essay, the effect of the membership of the UK
on the sovereignty of the Parliament has been evaluated.
Parliamentary Supremacy: The term sovereignty related to exercising supreme and apex
power. Parliamentary supremacy is an inherent concept of the United Kingdom Constitution. By
virtue of the concept of Parliamentary Sovereignty, the Parliament becomes the most supreme
authority in the United Kingdom. The Parliament has the supreme authority to make and end
laws. The authority of the parliament overrules that of courts and the legislations passed by the
parliament cannot be ended by any court. The concept of sovereignty of the Parliament has
always caught the attention of debates after the enactment of democracy.
Arguments for and against the sovereignty of Parliament: in understanding the implications
of the sovereignty, it is important to know the limitations that are posed on the powers of the
Parliament. There are some views that buttress the fact that Parliament does not have supreme
authority and that can be seen in the legislative powers. The Parliament has put down the method
1 Anson , Sir William R., 1909, The Law and Custom of the Constitution, 4th ed., Clarendon Press, Oxford

2PUBLIC LAW
of enacting a law and how the Parliament shall go about empowering the legislation. The
parliament has the power to lay down the manner in which an act shall be repealed, which is not
in line with the concept of implied repeal which will cast a liability on the successors thereby
limiting the sovereign powers of the successors. This view was also put forward by Lord Dicey
wherein he said that the Parliament is empowered to make laws binding everybody except the
successors2. This argument was further enlarged in the light of the A-G Trethowan Harris v The
Minister of the Interior and Bribery Commissioner v Ranasinghe which said that the legislative
bodies cannot be said to be enjoying supreme powers and that helps in understanding the
difference between a truly sovereign body and a partly legislative body. In the case of
Ranasinghe, it was held by Geoffrey Marshall that in cases of both sovereign and non sovereign
legislatures, both can be made subject to repeals and hence theor sovereignty again becomes a
matter of debate.
The basic meaning of sovereignty, these days is legitimate rule as compared to real
authority. In case of democracies, generally the perception of sovereignty is related with people’s
rule. Therefore one can talk regarding the sovereignty of the people. Even if the terms that have
been discussed above, have been defined in such a way that they can be understood easily, a
problem may arise when an institution is termed as sovereignty instead of a person or people.
The reason is that an institution like the Parliament requires to be defined exactly.3 It needs to
specify the rules of working, the members nominated to the institution and deciding what is to be
considered as the right method or the valid performance. This vision has received support from
2 Dicey A.V., 1886, England’s Case against Home Rule, J. Murray, London
3 Bingham of Cornhill, Lord Thomas, 2002, ‘Dicey Revisited’, in Public Law, XLVII(3): 39-57

3PUBLIC LAW
many authors who believe that the Parliament can be sovereign only when it acts in a particular
way that has been provided by the rules.4
The “new view” on sovereignty as pointed out by Pro. Heuston’s gives power to the courts to
examine the legitimacy of the powers of the court and the validity of the law but the power does
not extend to the scrutiny of the legislative’s powers. The Privy Council in its rulings have
several times talked about upholding the powers conferred by the UK parliament thereby
enabling the legislatures to fall under the powers of the Parliament. This problem is exclusive in
case of the UK Parliament and does not extend to the Westminster. There might be a little
problem in the legislative superiority after the entry into the European Union. Although, there are
many who are still of the strong opinion that the sovereignty of Parliament is the basic tenet of
the Constitution but there are many academics according to whom the British legal system is
founded on more than one fundamental principle therefore it is difficult to believe them. For
example, it has been claimed by some authors that there are several on and sources of legal
power in the English legal system and neither Hart's rule of recognition, nor Kelsen's Grundnorm
can be treated as the universal terms of legal systems.5 There is also another important feature of
the British consulate and that is the rule of law. This principle comprises of two sovereignties.
The first is the sovereignty of the British Parliament. The second is the sovereignty of the courts.
But the former is related with lawmaking and the latter this related with the interpretation and
application of law. As a result both the Parliament and the courts are required to coexist. But due
to this reason, the principle of parliamentary sovereignty becomes much more complex.
However, still it is important to mention at this point according to another famous constitutional
lawyer, Sir Ivor Jenings, he had agreed the Dicey that the Parliament is capable of unity. The
4 Bogdanor Vernon, 1997, Power and the People: A Guide to Constitutional Reform, Gollancz, London
5 Bogdanor Vernon, 2009, The New British Constitution, Hart Publishing, Oxford

4PUBLIC LAW
laws related with any subject and the view that the Parliament is superior to the jurisdiction of
the courts. But in this context, it has been claimed by Jennings that supremacy of Parliament can
be present only in theory
Redefinition theory
In the light of the new theory, the Parliament will be required to hold a referendum before
enacting legislation. The Parliament has therefore “redefined” its scope by including the Queen,
Parliament, the Commons and the Lords. In the light of this theory, it can be said that the
supremacy and exclusivity that the parliament exercised seems to be getting diluted6.
European and binding Treaties
The government of UK has the power to enter international treaties and the state is bound
by such treaties. On the other hand, according to the doctrine of the sovereignty of Parliament,
no alterations can be made in the rights enjoyed by the British citizens and other persons who are
in the UK. And this cannot be done without updating the permission from the Parliament.
Therefore these rights can be the only through the Acts of Parliament.7 Due to this season, if UK
does not want to be involved in violating its international responsibilities, it is necessary that the
Parliament incorporated the international law provision into the domestic law of UK by
introducing Acts. For example, the Parliament introduced the European Communities Act in
1972. This legislation incorporated the European Community law into the legal system of the
UK. By doing so, the Parliament incorporated to revolutionary principles. First was the principle
of direct effect and the other was the principle of supremacy. The meaning of the first principle is
that the Community law can confer rights and duties directly on the individuals and the national
courts are required to interpret all the legislation. In such a way that it complies with the
6 Austin John, 1879, Lectures on Jurisprudence, 4th ed., J. Murray, London
7 Weill Rivka, 2003, ‘Dicey Was Not Diceyan’, in Cambridge Law Journal, LXII(2): 474-494

5PUBLIC LAW
Community law. This doctrine was firmly established as a result of the decision given by the
European court of justice in Van Gend en Loos case, 196. In this case it was held that for a
Treaty to confer individual rights it has to follow a few guidelines, like: the rights will not only
be applicable to member States, but also to individuals, the details of the provisions need to be
clear and unqualified and unqualified. The rights shall be absolute and shall not be subject to any
discretion of the Member States8.
On the other hand, the supremacy of Community law was established as a result of the decision
given by the European Court of Justice in Costa v ENEL case.
Treaties and Regulations The European Court of Justice and the House of Lords examined the
treaty provisions in the case of Henn & Derby v DPP9, wherein the defendant’s were given the
power ro use the direct effect of article 28 in their defence. Also in the case of Leonesio v Italian
Ministry of Agriculture, it was said that treaties and regulations had the power to create
community rights that had the power of protecting individual rights. These rights are protected
under Article 288 of the TFEU. By understanding the wordings of the treaties and regulations, it
can be said that the essence of these regulations are that it does not need the intervention of
Member States and cold be used by individuals as a protective right. Even if the ECA, 1972 was
voluntarily enacted by the Parliament, this resulted in causing strain for the principle of the
sovereignty of Parliament. Since that time, the British courts got the authority to review the acts
of Parliament on the basis of being incompatible with the EU law. It has also been said in this
regard that the doctrine of the sovereignty of Parliament also means that the Parliament of the
day is not empowered to enact the law that cannot be changed by the future parliaments. After
8 Leyland Peter, 2007, The Constitution of the United Kingdom: A Contextual Analysis, Hart Publishing, London.
9 (1981) AC 580

6PUBLIC LAW
UK joined the European Union, the newly elected parliaments had to follow the provisions of the
law and therefore they have to follow all such provisions.
As mentioned above, the rights of an individual in UK can be either only through the Acts of
Parliament. Consequently, the Parliament is required to pass legislation that included the
provisions of Lisbon Treaty and the UK law and these provisions came into force in the UK.
Keeping in view the doctrine of sovereignty of Parliament, they were particularly two clauses of
this legislation that need to be analyzed the clauses 5 and 6 of this Act. New requirements were
imposed by clause 5 regarding the prior authorization by the Parliament before a treaty is ratified
by the government that provides the basic treaties of the EU10. But it needs to be noted that it is
applicable only in case of amendments that have been made under "ordinary revision procedure".
According to clause 6, parliamentary control is being enforced on the capacity of the government
to agree to the amendments that have been made in accordance with "simplified revision
procedure" or the passerelles. The term passerelles is generally used in the EU jargon. It
describes category of provisions that allow alteration to the arrangements of the treaties without
invoking ordinary procedure for their amendment.11 Therefore, some experts claim that the scope
of application of this is the formula has been significantly expanded by the Lisbon Treaty.12
Regarding television of founding Treaties, the decision-making process in EU Council generally
needs the decision to be unanimous. However, in some cases, simplified revision procedure and
passerelles allow a shift from unanimity to qualified majority voting. As a result of such, it
becomes easier to amend the founding treaties. In this way, and effort has been made by the
British legislator to include new provisions in the law seems that allow the move from unanimity
10 Bingham of Cornhill, Lord Thomas, 2002, ‘Dicey Revisited’, in Public Law, XLVII(3): 39-57
11 Trench Alan, 2008, The State of the Nations 2008, Imprint Academic, Exeter
12 Leyland Peter, 2007, The Constitution of the United Kingdom: A Contextual Analysis, Hart Publishing, London.

7PUBLIC LAW
to qualified majority voting in EU so that the Parliament can retain its control over the
government in such cases13.
Direct applicability and direct effect of Community Law
The direct applicability doctrine says that there is no need for assent from the Member
States’ legislature and the EU provision becomes effective from the date of the commencement
of the same. The direct effect confers rights on the individuals which become applicable from the
date of enforcement and it can be made legally binding on the Member States to uphold those
rights.
Fundamental rights
Another significant issue in this regard is the Charter of Fundamental Rights of the EU and
Protocol 7. It mentions the application of data to UK and Poland. Article 6 of the TEU, as
amended by Lisbon Treaty makes the charter legally binding. Therefore, not only the European
Court of Justice by the national courts is also required to refer to the rights and principles that are
mentioned in the charter while they are interpreting legislation. There are several British and
Polish politicians were afraid of the fact that the member states were going to be bound by the
chartered with some new rights. In case of the UK, it was also consider that it can also endanger
the doctrine of the sovereignty of Parliament. Due to this reason, the Protocol 7 arose as opt out
from the Charter.14
Westminster Supremacy
In the case of Macarthy v Smith 15the domestic legislation in question was the Equal Pay Act
1970 which was amended by the Sex Discrimination Act 1975 which said that men and women
13 Bogdanor Vernon, 1997, Power and the People: A Guide to Constitutional Reform, Gollancz, London
14 Trench Alan, 2004, Has Devolution Made a Difference? : The State of the Nations 2004, Imprint Academic,
Exeter
15 (1980) 129/79

8PUBLIC LAW
who are employed in the same job should be paid equally without any discrimination16. This was
construed in the light of the European Communities Act 1972 says that the Parliament while
passing any legislations fulfils its obligations under the Treaty17.
Directives and Direct effect
Article 249 which has now come under Article 288 has left no discretion to a Member State to
meet their objectives but gives some leeway to the member states in implementing the policy.
This principle was found effective in the case of Van Duyn V Home Office18, where it was held
that directives can be seen to be having direct effect which was held to be enforceable by the
European Court of Justice. The Article 48 of the EEC Treaty provides for free movement of
workers. The European Court of Justice held that the directives will have direct effect and that
rule shall be used keeping in mind the subject matter. The action of the Member States in
irrelevant and the legislations can become effective without the intervention of the Member
States. In cases of ambiguity in the terms of the directive, they cannot be said to be having direct
effect. Unlike the required provision of a directive becoming actionable after the due date has
passed, the same rule shall not apply in cases where the provisions are ambiguous19.
DOCTRINE OF PARLIAMENTARY SUPREMACY AND THE JUDICIARY
In the year 1995 Lord Woolf had made the observation that if the Parliament assumes the role of
the supreme authority encroaching on the rights of the Courts in implementing rule of law and
giving effect to other forms of law, the Courts will have to limit the powers of the Parliament.
The rights of limiting and restraining the powers of the Parliament shall then rest on the Courts
16 Bagehot Walter, 1867, The English Constitution, Chapman and Hall, London
17 Austin John, 1879, Lectures on Jurisprudence, 4th ed., J. Murray, London
18 (1974) C-41/74
19 Anson , Sir William R., 1909, The Law and Custom of the Constitution, 4th ed., Clarendon Press, Oxford

9PUBLIC LAW
and they shall do that and uphold the authenticity of the legislature. Therefore, the limits of the
Parliament rest with the Courts. In the cases of Jackson v Ag20, Lord Steyn upheld the concept of
judicial review and said that the courts have to act as a check on the abuse of flagrant powers of
the government21. This is the reason behind putting a strict clause in preserving the supremacy of
the Courts. That is how judicial review is preserved.
CHALLENGES TO PARLIAMENTARY SUPREMACY
In cases when a subordinate legislature has been conferred powers by the Westminster, the
question lies with the ultimate powers of the Westminster in revoking that grant of power. In the
case of British Coal Corporation v R (1935)22, the Privy Council held that though theoretically
the Westminster’s power was unqualified, S4 could be repealed if a cogent theory is said to exist
alongside. The South African Court held that a restriction in that nature put limitations on the
legislative powers of the Westminster. The principle was that a freedom which has been
conferred once should not be revoked. These provisions and case laws go on to prove that the
Parliament enjoys supreme powers and that Parliament is not bound by any legislature23. The
only impediments to the freedom of the parliament are political and external constrains.
The question that needs to be answered in the backdrop of the topic of sovereignty of the
parliament is that with time it can be seen that the supremacy is taking a dent. 24The judges seem
to be having power liberty in the application of statutory interpretation. The conflict between the
20 Jackson v AG (2001)
21 Bogdanor Vernon, 1999, Devolution in the United Kingdom, Oxford University Press, Oxford
22 British Coal Corporation v R (1935)
23 Carrell Severin, ‘Scottish devolution: what questions will future referendum ask voters?’, in The Guardian,
Wednesday November 23rd, 2011
24 Ghaidan v Godin-Mendoza 920010 EWCA

10PUBLIC LAW
courts and the Parliament may lead to political tensions. It is very difficult to question the
argument regarding the withdrawal from the EU and the free will of the Parliament in deciding if
UK should remain within the EU or not. It is also true that in practice, the Parliament is
omnipotent and it can do whatever he pleases. However, the question arises if it has ever been
omni-potent from this point of view. For example, Sir Jennings had stated that supremacy of
Parliament is a legal fiction and the Parliament cannot infect change the course of nature or do
all sorts of things. The changes related with the European integration and the processes of
globalization that had an impact on the political and constitutional system of UK merely prove
the claim made by him.

11PUBLIC LAW
Reference
(1974) C-41/74
(1980) 129/79
(1981) AC 580
Anson , Sir William R., 1909, The Law and Custom of the Constitution, 4th ed., Clarendon
Press, Oxford
Austin John, 1879, Lectures on Jurisprudence, 4th ed., J. Murray, London
Austin John, 1879, Lectures on Jurisprudence, 4th ed., J. Murray, London
Bagehot Walter, 1867, The English Constitution, Chapman and Hall, London
Bingham of Cornhill, Lord Thomas, 2002, ‘Dicey Revisited’, in Public Law, XLVII(3): 39-57
Bogdanor Vernon, 1997, Power and the People: A Guide to Constitutional Reform, Gollancz,
London
Bogdanor Vernon, 1999, Devolution in the United Kingdom, Oxford University Press, Oxford
Bogdanor Vernon, 2009, The New British Constitution, Hart Publishing, Oxford
British Coal Corporation v R (1935)
Carrell Severin, ‘Scottish devolution: what questions will future referendum ask voters?’, in The
Guardian, Wednesday November 23rd, 2011
Dicey A.V., 1886, England’s Case against Home Rule, J. Murray, London
Ghaidan v Godin-Mendoza 920010 EWCA
Jackson v AG (2001)
Leyland Peter, 2007, The Constitution of the United Kingdom: A Contextual Analysis, Hart
Publishing, London.

12PUBLIC LAW
Trench Alan, 2004, Has Devolution Made a Difference? : The State of the Nations 2004,
Imprint Academic, Exeter
Trench Alan, 2008, The State of the Nations 2008, Imprint Academic, Exeter
Weill Rivka, 2003, ‘Dicey Was Not Diceyan’, in Cambridge Law Journal, LXII(2): 474-494