Parliament Supremacy

Title: Parliament Supremacy
Category: Coursework
Sub Category: Research essay
Subject: Political Science
References: APA


Background of Parliament Supremacy:

Democratic government have a fundamental principle to elect an assembly which represents people and same assembly have the ultimate authority to make new laws and regulation for the entire population. However there is lack of universal agreement amongst practitioners that the assembly elected by people have absolute and unlimited power to make laws or changes to existing laws. Thus the extent of power is shifted from assembly to the constitutional text also referred as constitution which is changed by legislative authority. History of parliament supremacy dates back from 1265 when first parliament was assembled by Simon de Montfort which comprises of representative from church, cities and feudal barons of England where council was given to Henry III. By 1485, parliament received recognition enacted by monarch to change the law by the consent of Roman church. Later on, Henry VIII and Elizabeth 1 were made a supreme crown of England with legislative power using parliament. [1] Bill of Rights in 1689 and the Act of Settlement brought about recognition for the legislative authority of parliament, inclusive of the authority to reverse Crown Prerogatives by Acts of Parliament. The assumption of the aforesaid legislative authority initiated the evolution, which, at a later stage, gave rise to the unquestionable pre-eminence of the British Parliament, which is regarded as the cornerstone of the British Constitutional law, and it is that state of unhindered power, on which Dicey wrote his treatise on the Sovereignty of Parliament. During 1911, the concept of supremacy in UK was dependent upon consent of House of Commons and the House of Lords where either house can withhold their consent. [2]

Legislative supremacy, concept emerged which not only involves right to change the law but also no one other have rights to change. The doctrine of parliamentary supremacy also referred as parliamentary sovereignty emerged which states that

[1] Bradley AW and Ewing KD, Constitutional and administrative law (Pearson Longman 2007)
[2] Nigel G, “The United Kingdom Parliament Acts: parliamentary sovereignty on trial” [6ADAD] CanterLawRw 317 <https://ir.canterbury.ac.nz/bitstream/handle/10092/3315/12620482_Gravells_The%20United%20Kingdom%20Parliament%20Acts.pdf;sequence=1>

parliament have unlimited legal power and authority to change the law. [3] The most conceptual definition of parliament supremacy was provided by Dicey who states parliament supremacy as a “legal right of British parliament under the constitution to make any law without the possibility of it being overridden by a particular person or a group” [4] In Dicey’s own language

“the principle of Parliamentary Sovereignty means neither more, nor less than this, namely, that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever, and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of parliament.” [5]

Thus there is no legal limit for legislative authority, as it is exercised in the form of act of parliament and no court can supersede it as it is the duty of court to obey the act of parliament. However, things change when UK entered EU in 1972, where EU demanded accession as per European community Act 1972 supervised by European court of Justice, which can over-ride an Act of Parliament. [6]

Current View of Parliament Supremacy in UK:

Currently, the executive power in UK comprises of crown and government which includes prime minister and cabinet ministers who are responsible for formulating and implementing policies. The legislature on the other hand comprises of crown, house of common and house of lord. Judiciary comprises of judges and magistrates where judicial appointments are made by crown. Thus, common law jurisdictions, executives and legislatures are closely entwined. Such integration of executives and legislatures provides efficient mode of governance. [7] Sovereignty of parliament follows from the UK unwritten constitution which are associated with legislatures who have limited powers.

[3] Alder J, “Parliamentary Supremacy,” Constitutional and Administrative Law (Palgrave 1999)
[4] Dicey AV, Leap in the dark, or, our new constitution (Rarebooksclub Com 2012)
[5] Manik SC, “How Sovereign is Our Parliament?” (The Daily StarJuly 21, 2013) <http://www.thedailystar.net/news/how-sovereign-is-our-parliament> accessed January 8, 2018
[6] Balu N, “Decline of Parliamentary Supremacy in England” [1991] Cochin University Law Review 328 <http://dspace.cusat.ac.in/jspui/bitstream/123456789/11441/1/Decline%20of%20Parliamentary%20Supremacy%20in%20England.PDF>
[7] Kelly R, Gay O and Cowley P, “Parliament: The House of Commons — Turbulence Ahead?” [2006] Palgrave Review of British Politics 2005 103

Written constitution in UK performs two function which includes (a) constitution confers authority on the legislature and (b) restricting the legislature’s authority. Such framework have limited powers where courts can intervene by quashing unconstitutional legislation.UK constitution is partly write and wholly codified which give parliament and absolute power to make and undo any laws in the entire UK jurisdiction For example in 1984 the Government banned the Government Communications Headquarters (GCHQ) trade union based on untenable arguments which was eventually reversed by the incoming Government in 1997. In UK all public disputes are resolved through judicial review to avoid misuse of power and safeguarding interest of people. All legislative and executive decisions are reviewed by judges to ensure that they are lawful to ensure that they don’t affect public interests.

Human Right Act and Parliament Sovereignty:

Parliament sovereignty in UK has been refined by Human right act in 1998 as it significantly affected the balance the power and constitutional law due to lack of written framework. Human rights act (HRA) was introduced in 2000 which affected UK constitution resulting in shift of political power from the legislature and the executive to the judiciary. Enforcement of HRA effected rights and freedom protected by European Convention on Human Rights (ECHR) as Section 2 of HRA which directs courts to “have regard to the jurisprudence of the different enforcement and supervisory bodies in Strasbourg” Section 2(1) of HRA tends to redefine the parliament sovereignty by enforcing tribunals to question conventional rights by catering decisions of Strasbourg. In context of UK parliamentary supremacy, Section 2(1) weakens the Parliament’s law-making powers by limiting it to ECHR. It is often argued that UK surrendered its parliamentary sovereignty to ECHR by passing the act. [8] Much criticism has been received as many characterized HRA as unprecedented transfer of power from executive and legislature to judiciary while undermining parliamentary sovereignty as the political constitution was replaced by legal constitution. Section 3(1) of the HRA confines the judicial power to only interpret statutes in a manner

[8] “Web Edition Vol. 3 No. 1” (The Undergraduate Exeter) <http://www.theundergraduateexeter.com/2014/03/human-rights-act-1998-parliamentary-sovereignty-judiciary/v> accessed January 8, 2018

compatible with the convention rights but in cases where it is not possible to interpret statutes in a manner compatible with the convention rights, the Judiciary have been given a free rein by the parliament. For example, Pepper V Hart is an example of Parliamentary imposed limit on the Judiciary but this does not limit the power of the Judiciary but merely replaces impossibility with incompatibility. For example others v Secretary of State for the Home Department (2005) case, the Home Secretary who had allowed evidence obtained outside the UK by torture to be used as evidence at a hearing of the Special Immigration Appeals Commission (SIAC). The evidence was used to detain, without trial, eight men at Belmarsh prison. The argument against the government was that the European Convention forbids torture and therefore any such evidence obtained through such treatment of anyone cannot be admissible in a British court. According to Bellamy there are five features which characterize the ideal type political constitutionalism (a) there are reasonable disagreements amongst constitutional essentials, including rights, (b) there can be no higher rights which is above politics, (c) contend judicial review is politics by legal means, (d) courts are least effective and legitimate within working democracies and (e) political constitutionalists affirm that the rights determined by legislators within legislation should be superior to the decisions of courts. Thus HRA was an extension of political constitutionalism which went to considerable lengths to render the judicial protection of Convention rights compatible with the Diceyan view of Parliamentary sovereignty. Diceyan doctrine of parliament sovereignty tends to highlight on two themes (a) Parliament can legislate in any way ad (b) no other institution may dis apply parliamentary legislation. However, HRA aims to address the first theme of being an ordinary piece of parliamentary legislation but it failed to address second theme of Diceyan doctrine that legislation with parliamentary majority can withdraw any law. [9]

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Brexit and Parliament Sovereignty:

Thus there has been an increasing debate in UK over sovereignty issue especially in the post referendum era of “Brexit” which has challenged political and legal dimension of sovereignty. [10] In June 2016, UK hold a referendum to exit from the EU membership where citizens of UK and Gibraltar voted against the notion to alliance with EU with the

[9] Bellamy R, “Political constitutionalism and the Human Rights Act” (2011) 9 International Journal of Constitutional Law <https://academic.oup.com/icon/article/9/1/86/902292>
[10] Editorial Observer, “The Observer view on parliament’s sovereignty over Brexit | Observer editorial” (The GuardianFebruary 4, 2017) <https://www.theguardian.com/commentisfree/2017/feb/05/parliament-must-ensure-second-brexit-referendum> accessed January 8, 2018

slim majority of 51.8% where turnout was 72%. The result of Brexit surprised where “Brexiters” claimed to enforce Article 50 of TEU which has prerogative power without the due approval of parliament. On contrary “remaires” argued that UK must follow fundamental constitutional requirement by getting an approval of Brexit from parliament. The case was brought for high court ruling in Northern Ireland and England where high court ruling of Northern Ireland suggested that there is no need for legislation on Brexit as the referendum result would trigger Article 50 by using prerogative powers. On contrary, divisional court of England and Wale ruling stated that there is a need for legislation subject to parliament approval in order to trigger Article 50. [11] In the end the supreme court preserve the Dicey point of view that parliament have the “right to make or unmake any law whatsoever; and further, no person or body is recognized by the law as having a right to override or set aside the legislation of Parliament”. [12] The ruling was landmark to revive the concept of serenity as government cannot use the royal prerogative to trigger article 50 which means that the process must be subject to control and oversight by parliament. [13] In the post Brexit scenario, Dicey’s had absolutist point of view regarding conception of parliamentary sovereignty which is rejected on the account of legislative supremacy which has moral foundation in British government which authorizes the legitimate use of power. Thus there is an issue of constitutional legitimacy in UK which is subject to unwritten constitution as many countries who were adapting British constitution have departed from it to establish a new supranational court of final appeal. In Brexit scenario Supreme judicial court on UK was in defense of parliament against the executive as the process of leaving EU cannot be taken by executives alone which was a fundamental change in UK constitution and rights of UK citizens. Supreme Court ruling made it clear that Brexit cannot be effected by parliament and Crown’s ancient prerogative power. Dicey’s view was hampered as government was entitled to exercise its power without involving parliament which was against the core principle of UK constitution about parliament sovereignty. Government relied on prerogative power and residual power of crown which is very problematic in modern

[11] Ewing K, “Brexit and Parliamentary Sovereignty” (2017) 80 The Modern Law Review 711
[12] A. V. “Dicey, An Introduction to the Study of the Law of the Constitution” (London: Palgrave, 10th ed, E. C. S. Wade, 1959) 39-40 cited in Miller n 6 above at [43].
[13] Gordon M, “The UKs Sovereignty Situation: Brexit, Bewilderment and Beyond … ” (2016) 27 Kings Law Journal 333 <http://www.tandfonline.com/doi/full/10.1080/09615768.2016.1250465>

democracy. Crowns administrative power are now being exercised by ministers who are answerable to parliament. These powers should be compatible with legislation and common law to avoid ministers breaching parliamentary sovereignty. The court judgement to accept prerogative powers were subject to conduct of foreign relations under UK dualistic system which cannot affect the rights of UK citizens without parliamentary legislation. [14]

Critical Analysis :

There are several limitations to the supremacy of parliament which includes (a) periodic elections, (b) power of prime minister, (c) public opinion, (d) membership with international organizations, (e) constitutional check and procedural limitations. However, in reality, of course, how Parliament exercises its power is constrained by myriad “real-life” factors. [15] The doctrine of parliamentary sovereignty is far more limited in terms of scope and place. Firstly in terms of scope parliament is only sovereign in terms of enacting primary legislation. Either house does not bind anything other than themselves as statutory instruments can be quashed by the courts outside. Secondly doctrine of parliamentary sovereignty is only valid for England, Wales and Northern Ireland but has no value in terms of law of Scotland. [16] There is much scope to discuss the concept of parliament sovereignty in order to propose another model which attempts to address the failure of Dickeys doctrine of parliament sovereignty. Thus it is vital for UK constitutional bodied to discuss the lack of written constitution considering the implication of HRA of 1998 and Brexit which has significant questions on UK sovereignty. Thus there is a scope for the development of new model which are malleable in current content which not only exist on physical Houses of Parliament nor Dicey’s doctrine. Concept of sovereignty must be changed to meet the needs of modern society and global environment. The relationships that the UK has with intergovernmental and supranational organizations now goes far beyond membership of the EU; the UK as a

[14] “Parliamentary sovereignty” (University of Oxford) <http://www.ox.ac.uk/news-and-events/oxford-and-brexit/brexit-analysis/parliamentary-sovereignty> accessed January 8, 2018
[15] Adler M, “Constitutional Limitations on British Parliamentary Sovereignty: Rule of Recognition Perspective” [2009] Jurisprudence & Constitutional Theory Paper <file:///C:/Users/Admin/Downloads/bc18c95d-d920-43b9-ab94-3890a622c746.pdf>
[16] Green DA, “The fragility of parliamentary sovereignty” (Financial Times) <https://www.ft.com/content/b6763fd3-2a3b-348f-8a29-1c08a3c5f955> accessed January 8, 2018

state is woven into the global legal framework. The UK’s active participation in the United Nations, NATO, World Trade Organization and the International Monetary Fund, places obligations on the state which in turn impact on the orthodox notion of absolute sovereignty. [17]

Conclusion:

Diceys concept of parliament sovereignty has been analyzed, who stated in his thesis that parliament has right to make and unmake any law and no person or body has right to over right it. Thus, current scenario of human rights act 1998 and Brexit has raised numerous questions on the integrity of parliament sovereignty in UK as both HRA and Brexit have enforced UK to compromise on parliament sovereignty. The root cause of dilemma is uncodified constitution of UK which is subject to certain limitation which includes periodic elections, power of prime minister, public opinion, membership with international organizations, constitutional check and procedural limitations. In the end author suggests that concept of parliament sovereignty is continuously evolving and thus require a new framework to meet the need of modern global dynamics.

[17] Johnson, MM, “The Models of Parliamentary Sovereignty” (University of Bristol Law School) <https://legalresearch.blogs.bris.ac.uk/2017/12/the-models-of-parliamentary-sovereignty/> accessed January 8, 2018

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BIBLIOGRAPHY:

Adler M, “Constitutional Limitations on British Parliamentary Sovereignty: Rule of Recognition Perspective” [2009] Jurisprudence & Constitutional Theory Paper <file:///C:/Users/Admin/Downloads/bc18c95d-d920-43b9-ab94-3890a622c746.pdf>

 “Parliamentary sovereignty” (University of Oxford) <http://www.ox.ac.uk/news-and-events/oxford-and-brexit/brexit-analysis/parliamentary-sovereignty> accessed January 8, 2018

 “Web Edition Vol. 3 No. 1” (The Undergraduate Exeter) <http://www.theundergraduateexeter.com/2014/03/human-rights-act-1998-parliamentary-sovereignty-judiciary/v> accessed January 8, 2018

A. V. “Dicey, An Introduction to the Study of the Law of the Constitution” (London: Palgrave, 10th ed,

Alder J, “Parliamentary Supremacy,” Constitutional and Administrative Law (Palgrave 1999)

Balu N, “Decline of Parliamentary Supremacy in England” [1991] Cochin University Law Review 328 <http://dspace.cusat.ac.in/jspui/bitstream/123456789/11441/1/Decline%20of%20Parliamentary%20Supremacy%20in%20England.PDF>

Bellamy R, “Political constitutionalism and the Human Rights Act” (2011) 9 International Journal of Constitutional Law <https://academic.oup.com/icon/article/9/1/86/902292>

Bradley AW and Ewing KD, Constitutional and administrative law (Pearson Longman 2007)

Dicey AV, Leap in the dark, or, our new constitution (Rarebooksclub Com 2012)

E. C. S. Wade, 1959) 39-40 cited in Miller n 6 above at [43].

Editorial Observer, “The Observer view on parliament’s sovereignty over Brexit | Observer editorial” (The GuardianFebruary 4, 2017) <https://www.theguardian.com/commentisfree/2017/feb/05/parliament-must-ensure-second-brexit-referendum> accessed January 8, 2018

Ewing K, “Brexit and Parliamentary Sovereignty” (2017) 80 The Modern Law Review 711

Gordon M, “The UKs Sovereignty Situation: Brexit, Bewilderment and Beyond … ” (2016) 27 Kings Law Journal 333 <http://www.tandfonline.com/doi/full/10.1080/09615768.2016.1250465>

Green DA, “The fragility of parliamentary sovereignty” (Financial Times) <https://www.ft.com/content/b6763fd3-2a3b-348f-8a29-1c08a3c5f955> accessed January 8, 2018

Johnson, MM, “The Models of Parliamentary Sovereignty” (University of Bristol Law School) <https://legalresearch.blogs.bris.ac.uk/2017/12/the-models-of-parliamentary-sovereignty/> accessed January 8, 2018

Kelly R, Gay O and Cowley P, “Parliament: The House of Commons — Turbulence Ahead?” [2006] Palgrave Review of British Politics 2005 103

Manik SC, “How Sovereign is Our Parliament?” (The Daily StarJuly 21, 2013) <http://www.thedailystar.net/news/how-sovereign-is-our-parliament> accessed January 8, 2018

Nigel G, “The United Kingdom Parliament Acts: parliamentary sovereignty on trial” [6ADAD] CanterLawRw 317 <https://ir.canterbury.ac.nz/bitstream/handle/10092/3315/12620482_Gravells_The%20United%20Kingdom%20Parliament%20Acts.pdf;sequence=1>