This paper considers whether the concept of ‘parliamentary sovereignty’ is a reality in the modern United Kingdom.
To frame the boundaries of this essay, ‘parliamentary’ is taken as referring to action taken by the Westminster-based tripartite authorities of the House of Commons, the House of Lords and the British monarchy.
Since an incontrovertible definition of ‘sovereignty’ is more difficult, I turn to Dicey (1915) who uses two criteria. Firstly, Parliament has ‘the right to make or unmake any law’, and secondly ‘no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament’.
Taking these together, I define ‘parliamentary sovereignty’ as a concept which considers that the Westminster Parliament has complete control over the legal affairs of the UK and that no individual or body can override any Act of Parliament. This also incorporates the Diceyan concept that no Parliament can bind its successor.
In recent decades, the reality of parliamentary sovereignty has been increasingly questioned due to a number of constitutional changes. In particular, this paper considers the impact on parliamentary sovereignty of: (i) membership of the European Union; (ii) the passing of the Human Rights Act; (iii) the changing role of the judiciary; and (iv) devolution.
IS The sovereignty of THE UK parliament a meaningless concept? Should IT be abandoned?
This paper considers whether the concept of ‘parliamentary sovereignty’ is a reality in the modern United Kingdom.
To frame the boundaries of this essay, ‘parliamentary’ is taken as referring to action taken by the Westminster-based tripartite authorities of the House of Commons, the House of Lords and the British monarchy.
Since an incontrovertible definition of ‘sovereignty’ is more difficult, I turn to Dicey (1915) who uses two criteria. Firstly, Parliament has ‘the right to make or unmake any law’, and secondly ‘no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament’.
Taking these together, I define ‘parliamentary sovereignty’ as a concept which considers that the Westminster Parliament has complete control over the legal affairs of the UK and that no individual or body can override any Act of Parliament. This also incorporates the Diceyan concept that no Parliament can bind its successor.
In recent decades, the reality of parliamentary sovereignty has been increasingly questioned due to a number of constitutional changes. In particular, this paper considers the impact on parliamentary sovereignty of: (i) membership of the European Union; (ii) the passing of the Human Rights Act; (iii) the changing role of the judiciary; and (iv) devolution.
Membership of the European Union
In 1972, Edward Heath’s Conservative Government (after protracted negotiations) took the UK into the European Community (now the European Union, or EU).
Under the European Communities Act 1972, the Treaty of Rome (concerned with establishing a common market) and all EU secondary legislation were to be incorporated into domestic UK law with decisions made by the European Court of Justice becoming binding. The Act stated that UK domestic law would be ‘subject to’ EU law, thereby enshrining the superiority of EU law in the areas covered by the Act.
Indeed the act was tested in the famous Factortame case when the House of Lords (then the highest court in the country) ruled in 1991 that UK statutes (in this case the Merchant Shipping Act 1988) would not apply when those statutes contradicted European Law. In discussing the final judgement, (Law) Lord Bridge noted that it had ‘always been clear that it was the duty of a United Kingdom court when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law’ (Bridge, 1991).
Though not unique, the Factortame case provided the strongest example of the EU’s supremacy in matters concerning the single market in the areas of competence that had been voluntarily conferred on it by member states when the 1972 act was signed. In these areas of economic legislation, it is hard to argue against the notion that EU law now has a higher constitutional status than Westminster legislation.
Wade (1996) considers the Factortame case and Bridge’s comments to be ‘revolutionary’ since they imply that the 1972 Act binds Parliament’s successors from legislating as it sees fit sit, in contradiction with the Diceyan approach, since any legislation must be consistent with EU law.
While one could argue that the UK is free to legislate to leave the EU (even though existing legislation is absent of exit provisions) and reassert sovereignty, practical economic constraints makes such a scenario highly unlikely suggesting UK parliamentary sovereignty in the areas of economic competence conferred to the EU is a more theoretical than practical concept.
Human Rights Act 1998
In 1998, the Labour Government passed the Human Rights Act (HRA) which enshrined the European Convention on Human Rights (the Convention), as implemented by the Strasbourg-based European Court of Human Rights (ECHR), into UK law.
Although HRA requires that any UK legislation be consistent with the Convention, the act did include a provision for (at least in a formal sense) the maintenance of parliamentary sovereignty. Indeed, the UK judiciary is not permitted to strike down legislation that it rules inconsistent with the Convention but is only able to issue a ‘declaration of incompatibility’ (this is indeed seen as a last resort since the judiciary will attempt, where possible, to interpret primary legislation as being compatible).
But what happens when a declaration of incompatibility is issued? Between the implementation of the HRA in October 2000 and mid-2009, 26 declarations of incompatibility were issued. Of these, 17 resulted in changes or amendments to British law, 8 were overturned on appeal (i.e. it was judged that British law and the Convention were after all compatible) and a decision was outstanding in the remaining case.
What is most notable here is that the UK Government has not yet ignored a declaration and insisted that Westminster legislation should overrule the convention. Indeed, when a declaration has not been overturned, UK law has been amended in some way to accommodate the Convention. In effect then, the UK Government has yet to really challenge ECHR’s superiority over the will of Westminster even in cases when the Government of the day has felt very strongly about the contested issue. For example, the Labour Government was forced to concede defeat on several occasions such as when the Home Secretary had to relinquish the power to set minimum sentences for life in 2003 and the abandonment of the measure to allow detention without charge of terrorism suspects in 2004.
It will be interesting to see the outcome of the current debate regarding prisoners being given the right to participate in elections. While Westminster (with strong public support) wishes to deny prisoners the vote (in February 2011, MPs backed a motion opposing the move to allow prisoners the vote by a huge margin of 234 to 22), the Government has conceded that it will have to make some form of concession to ensure compatibility with the Convention. David Cameron himself described the situation as ‘thoroughly unsatisfactory’.
Indeed, if Britain were to continue to deny prisoners the vote, it is likely that the ECHR would order the UK Government to award compensation to prisoners (which would be viewed as a huge loss of sovereignty). Should it refuse to pay the compensation, the Council of Europe (the 47-member organisation that oversees the ECHR) would have to consider the UK’s suspension.
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- Quote paper
- Roy Whymark (Author), 2011, Is the sovereignty of the UK Parliament a meaningless concept and should it be abandoned?, Munich, GRIN Verlag, https://www.grin.com/document/207479
