The Doctrine of Parliamentary Sovereignty in the United Kingdom

Dicey’s notion of Parliamentary sovereignty is a core tenet in the United Kingdom constitution that has been in existence for over 300 years now. The doctrine confers ultimate power to parliament as the body with the sole authority to pass and make laws. Besides, the principle also means that decisions made by former and present parliaments cannot bind future parliaments.[1] Also, the doctrine ensures that no court in the United Kingdom can question/invalidate some of the pieces of legislation made by parliament.[2] With parliamentary sovereignty, the Supreme Court cannot block acts and other legislative pieces from being passed, as it is the case in other countries such as the USA and Germany among others. Parliamentary sovereignty can be conceived as the priority parliament has over other legislative bodies. Parliamentary sovereignty removes the chance of the UK having a codified constitution, as this would necessitate the removal of parliamentary sovereignty before the new written constitution can be enshrined to law.[3]

The doctrine of parliamentary sovereignty can be traced back to the periods before 1689 when the monarch had the ultimate lawmaking and political power. However, Av Dicey first laid out the idea of parliamentary sovereignty in 1885 in the Law of Constitution. Dicey asserted that theoretically parliament had the ultimate power.[4]

Nevertheless, despite the central importance of parliamentary supremacy in the UK, it has come under repeated threats from the Judges, EU and the constitutional convention.

When the UK joined the European Union in 1972, the membership immediately placed some limitations on the Dicey’s notion of parliamentary sovereignty. For instance, the UK courts’ application of ECA regarding the conflicts between the EU law and UK national law has constantly threatened Dicey’s notion of parliamentary sovereignty. A good example is in the Factortame (No.2), the House of Lords, unequivocally accepted the primacy of the EU law. [5]The court failed to apply the Merchants Shipping Act 1988, which by then was conflicting with the EU law. When delivering his judgment, Lord Bridge asserted that it has always been the mandate of the Supreme Court when delivering judgments to veto any legislative piece of the national law that was found to be conflicting with an enforceable rule of community law.[6]

Herein it is apparent that Lord Bridge reinforced the primacy of the EU laws over the National laws. Lord Bridge assertions seem to imply that the UK parliament by passing the ECA laws had managed to bind its successors, which contradicts the overarching frameworks underlying Dicey’s parliamentary sovereignty. Also, Bridge’s judgment seemed to imply that EU supremacy bound legislative pieces in the UK as opposed to parliamentary power.

Moreover, detailed examination and analysis of various case laws confirm the shift from the traditional parliamentary sovereignty in favour of the cohesive and joint European primacy. This was first illustrated in the Van Gend en Loos v Nederlandse Administratie der Belastingen. In this case, the ECJ claimed that the provisions of the EU could create legal rights and rules that would be enforceable by natural and legal persons before the courts of the members’ states of the Union. The Van Gend en Loos v Nederlandse Administratie der Belastingen case emanated from the Benelux countries reclassification of a particular chemical into another class of customs that would attract comparatively higher levies. [7]The ECJ in delivering its judgment argued that the reclassification of the chemicals breached the provisions of the European Union, which required all of its member states to reduce the customs duties and taxes gradually. Besides, the ECJ ruled that the breach by Benelux countries was not only actionable by the member states before the national courts but also by the citizens of the member states. The wording of the court, in this case, seemed to allude to the transfer of supremacy from the parliament to the EU.

Further, other subsequent case Laws in the ECJ seem to highlight the assumption of the precedence of EU supremacy over the parliamentary sovereignty. In the Flaminio Costa v ENEL, the Court alluded that the member states by joining the European Union had limited their hegemony by joining the EU, which created rules that would bind both the member nations and their citizens.[8]

Flamino Costa V ENEL case confirmed the provisions stipulated in Article 267 of the Treaty on the Functioning of the European Union (TFEU).

According to the article, courts in the member states of the EU have the mandate to refer the particular cases, which have reached the pinnacle of appeal in the member nations, particularly where those cases have an element of the applicability of the EU law to the ECJ.

The Amministrazione Delle Finanze v Simmenthal SpA is another case law, which highlights the primacy of the EU laws over the parliamentary sovereignty.  In this case, the ECJ averred that the European Legislative supremacy had replaced the legislative power. Specifically, the ECJ asserted that the member states by joining the European Union had rendered the laws from the member countries, which were conflicting laws with the EU laws inapplicable under the provisions of the treaty.[9]  The ECJ also posited that any future acts of these members nations that would conflict with the EU law were unenforceable in the territories of the member nations. The court claimed that any form of application of these laws would impede the foundations on which the European Union was built on.

Besides, the extensive and broad nature of the treaties governing the member countries of the European appears to reiterate the supremacy of the EU laws over the laws of the member nations. The Maaschrit Treaty, which was later on amended to the Treaty of Amsterdam Nice and the Treaty of Lisbon, set the precedence for a more integrated European Union. Under the provisions of the Maaschrit treaty, European Union citizenship was created which allowed the free movement of the citizens of the member countries of the European Union, cooperation between the police and judiciaries regarding criminal matters and standard foreign and security policy.[10]

It is apparent the extensive nature of these treaties continually undermined the underlying principles of Dicey’s notion of parliamentary sovereignty.

Recent Constitutional conventions have also passed out as challenging the notion of parliamentary sovereignty. In particular, the Human Rights Act of 1998 has been conceived by many quarters as threatening the concept of parliamentary sovereignty.  A core principle of Parliamentary sovereignty is the limitations of judicial power regarding the undertakings of the parliament. As mentioned earlier, unlike in other nations such as the USA and Germany, the Supreme Court has no authority to either repeal or veto parliamentary legislation. The European Convention on Human Rights to the enactment of the Human Rights Act of 1998 into British Law. Particularly section three of the Human Rights Act of 1998 explicitly states that primary and secondary legislation in the member countries should be done in such a way which ensures its compatibility with the rights of the convention.[11]

Also, Section 4 of the Human Rights Act of 1998 gives the court the power to make declarations of incompatibility in the cases where it gets established that primary and subordinate legislation in the member countries conflicts with the rights of the convention. The ECHR also requires the judiciary of the member nations to read their central law in a manner that enhances its compatibility with the protocol.

The declaration of incompatibility enshrining the  ECHR gets illustrated in the A and others v Secretary of State for the Home Department otherwise referred to as the Belmarsh 9 case. The case was heard by the House of Lords and entails Human rights. The House of Lords established that the indefinite imprisonment of the foreign individuals in Belmarsh prison without trial under the provisions of Section 23 of the Anti-Terrorism, Crime and Security Act of 2001 conflicted with the ECHR. The case pertained to nine individuals who had been detained in 2001 and 2002. The nine individuals had been arrested under the Anti-Terrorism, Crime and Security Act of 2001. [12]The fourth section of the act allowed for indefinite imprisonment of the individuals without any trial and deportation exercise. Section 25 of the Act accorded the nine individuals the right to appeal to the Special Immigration Appeals Commission (SPAC) against their indefinite imprisonment. Initially, SPAC had agreed to evict the nine individuals from the UK, arguing that it had sufficient evidence that the nine were a threat to the UK national security. In delivering the majority judgment, the House of Lords ruled that while the detention of the nine individuals was consonance with the ATCSA 2001, Section twenty-three of ATCSA conflicted with the articles of the ECHR.[13]

Judges also pose a threat to the Dicey notion of parliamentary sovereignty in the form of Judicial reviews. Judicial review is the primary mechanism employed to solve public law disputes in the UK. With this mechanisms, various decisions of federal authorities in the UK get challenged in the courts. The judges are usually mandated to review multiple choices of the executive and legislative wings of the government to ensure that they are consonance with the law. Explicitly the primary purpose of the Judicial reviews is to ensure that the parliament and the public authorities don’t go beyond the powers accorded to them and misuses them. It ensures the decisions of these bodies fall within the realms of the law. After all, public law usually concerns itself with the overall control of the government. It is, however, important to note that although the decisions of federal authorities can be challenged in the courts, through the judicial review, the judges are usually concerned with the lawfulness of the particular choice and not the technicalities. This poses a challenge to Dicey’s notion of parliamentary sovereignty in that although the Supreme courts cannot invalidate the laws both passed and made by the parliament, judges through the judicial review commission can review the lawfulness of those decisions.[14] In this regard, we note that although the parliament has ultimate power, other bodies, and in particular Judges examine how the parliament uses the power accorded to it to ensure that it falls within the confines of the law.

To sum it up it up the paper has offered a critical evaluation of how the European Union, Constitutional conventions and Judges in the UK undermine parliamentary sovereignty described first by Dicey. The article has demonstrated that parliamentary supremacy concerns itself with ultimate power accorded on the parliament by the law — specifically, parliament’s authority to pass and make rules. Also, the inability of decisions made by the present and former parliaments to bind future parliaments is a core tenet of parliamentary sovereignty. The paper has shown how by the United Kingdom joining the European Community in 1972, the membership immediately exerted limitations on Dicey’s traditional notion of parliamentary sovereignty. By entering the EU, the United Kingdom had embraced various laws of the EU to take precedence over the domestic laws. Different cases which have been looked in the paper illustrate this. The paper has also shown constitutional conventions, and in particular, the ECHR, which led to the enactment of the Human Rights Act of 1998 undermine parliamentary sovereignty.  Specifically, the paper has illustrated this through the declaration of incompatibility, which the court invoked to allow the nine individuals proceed with their appeal of the decision of SPAC, which despite being lawful was illegal under section 23 of ATCSA. The paper has also shown how judges through the judicial review processes continually undermine parliamentary sovereignty. The judicial review process serves as a check as to how various public authorities use the power accorded to them and thus prevents instances of possible abuse.

Bibliography

Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 1977 E.C.R. 629 (1977)

ex parte Factortame, 1991 A.C.1 603 (1991).

Craig, Paul P. “Sovereignty of the United Kingdom parliament after Factortame.”In Constitutional Law, pp. 359-394. Routledge, 2018.

Costa v. Enel, 1964 E.C.R. 585 (1964).

Gordon, Michael. Parliamentary sovereignty in the UK constitution: Process, politics and democracy. Bloomsbury Publishing, 2015.

Van Gend and Loos Case, 1963 E.C.R. 1 (1963).

Young, Alison L. Parliamentary Sovereignty and the Human Rights Act. Bloomsbury Publishing, 2008.

[1] Gordon, Michael. Parliamentary sovereignty in the UK constitution: Process, politics and democracy. Bloomsbury Publishing, 2015.

[2] Ibid

[3] Young, Alison L. Parliamentary Sovereignty and the Human Rights Act. Bloomsbury Publishing, 2008

[4] Ibid

[5] ex parte Factortame, 1991 A.C.1 603 (1991).

[6] Ibid

[7] Van Gend and Loos Case, 1963 E.C.R. 1 (1963).

[8]

Costa v. Enel, 1964 E.C.R. 585 (1964).

[9]

Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 1977 E.C.R. 629 (1977)

[10] Craig, Paul P. “Sovereignty of the United Kingdom parliament after Factortame.”In Constitutional Law, pp. 359-394. Routledge, 2018

[11] Ibid

[12] Ibid

[13] Ibid

[14] Ibid