Theme B: Importance of Parliamentary Supremacy In the Modern United Kingdom
Introduction
Parliamentary supremacy is a doctrine that makes the parliament a supreme legal authority in the UK that allows it to create or terminate any existing law. Based on the Dicey theory, the parliament under the English Constitution has the right of making or unmake any laws with no other individual or entity having the the right of overriding or setting aside the Parliament’s legislation (Gecer, 2013). This discussion intends to establish why this doctrine of parliamentary supremacy is important in the modern UK.
The Parliamentary Supremacy Before the 1970s
The British parliament is said to have undergone an evolution comprising four phases prior to it obtaining its legal sovereignty (Anamika, 2021). The initial phase was during the Middle ages whereby the parliament was represented by the House of Lords and the House of Commons. The second phase from 1485 to the 17th was characterized by tensions of power between the Stuart kings and the parliament for the ultimate sovereign authority. The third phase between 1688 to 1832 encompassed the introduction of various practices affiliated with the modern parliamentary system such as the party system, the ministerial responsibility doctrine, and the cabinet. In the final phase from 1832 to the present day, there has been an institutionalization and determination of roles, responsibilities and relations between the executive, the legislature and the two Houses (Anamika, 2021). Ultimately, the legal sovereignty of the elected British Parliament as the representative body of its people was established.
The parliamentary sovereignty doctrine was based on Dicey’s theory which stipulated three important elements including that the parliament could make or unmake any law whatsoever which meant thus authority was unlimited on the laws they want or do not want on absolutely anything. The parliament is also not bound by the predecessors such that the new law made in the current parliament will always prevail. The third element is that no authority could challenge the Acts of Parliament including the courts as shown in the Pickin v British Railways case.
Impact of the EU Membership On the Parliamentary Supremacy
EU Law Supremacy
EU membership has influenced the UK on various fronts including its parliamentary supremacy. Generally, the EU has distinct and very direct legal and political effects which causes constant tension between the UK exercising the sovereignty of its parliament and the acclaimed supremacy of the multiplex EU legal and political order. Particularly, the EU is unique in its institutional set up, the primacy of its law and the direct impact of claimable EU rights in the domestic courts (McConalogue, 2020). Conversely, this doctrine provides that no individual or entity has been recognised by the English law to override or set aside the laws from the Parliament’s legislation. This doctrine is challenged by issues such as the European Court of Justice having the supreme right tof overriding or setting aside the legislation of Parliament. Parliament could choose to disapply, override or derogate from EU obligations while the EU law maintains supremacy law matters that are found to be applicable making the implementation of these two laws challenging.
UK Courts’ Stance Towards EU Law
The UK courts would be at a disadvantaged position when the tensions between the EU and parliamentary sovereignty accrue considering that no clear constitutional guidelines would be provided on what to follow. Initially, the UK courts were disinclined on accepting the supremacy of the EU law as noted by Lord Denning in Felixstowe Dock (1976). Nevertheless, Denning changed this view three years later where he asserted that the court is entitled to look into the EC Treaty as its aid in constructing its law. (Cesran International, 2020) He noted that if the UK law was inconsistent with Community law then it is their duty to prioritize the Community law in the Macarthys Ltd v Smith (1979) case. Subsequently, the House of Lords noted in Garland v British Railways (1983) case that the construction rule needs to be utilized regardless of how vast the departure for the prima facie meaning of the law is required to attain consistency. Also in the Pickstone v. Freemans (1989) case, the House of Lords were also prepared to accord supremacy to the EU by adopting the rule of construction since adopting the purposive approach could bring in consistency with the goal of the EC Treaty (Cesran International, 2020). With time, the disapplication approach would be adopted where the domestic law would be disregarded and the EU law was applied. In Factortame (1989), the court set aside the AoP after considering the preliminary reference from ECJ which noted the overriding principles of Community law. Nevertheless, this approach has threatened the doctrine of parliamentary superiority.
Voluntary Relinquishment
There are instances where the UK had voluntarily joined and relinquished its supremacy to EU institutions. Lord Bridge noted that section 2(4) of the ECA 1972 that availed the rule of construction had allowed the Parliament to voluntarily give sovereignty to EU law hence the courts were now obligated to respect this supremacy. Nonetheless, with the UK leaving the EU in 2020 and no longer being a member of the EU, it could now exercise parliamentary supremacy with no limitations.
HRA Impact on Parliamentary Supremacy
Section 4 of HRA 1998 has allowed the UK courts to declare an Act of Parliament that is considered incompatible particularly if it is not aligned with human rights articles. However, this should not be considered a threat to parliamentary supremacy considering that it has not challenged any Act’s validity and they remain valid and enforceable. Also, the parliament still has the power of repealing this Act. teh HRA is a law because the Parliament has deemed it appropriate but it could be repealed without question. The HRA led to the development of the new British Constitution that has been founded on human rights and rule of law.
The Referendums
There has been an emerging constitutional norm particular legislative changes need direct popular endorsement including making changes to parliamentary supremacy. While the referendum poses no legal threat to the supremacy, there is an evident constitutional threat. The flexibility of the British constitution could easily see the government call for a referendum and they could easily gain majority votes depicted in numerous bills including the bill that authorized the 2016 EU referendum. The absence of constitutional norms surrounding the British constitution does pose a constitutional threat against parliamentary supremacy if the government notes an opportunity on which changes need to be made.
The Devolution Arrangements
The devolution arrangements that created the three legislatures in Wales, Northern Ireland and Scotlandraised a concern on the parliamentary superiority of the UK. However, the Westminster Parliament has remained supreme since it has the powers to abolish the devolved governments and legislatures (The Constitution Society, 2022). However, teh UK parliament has not used these powers but rather it has worked with the devolved legislatures as it seeks consent prior to handling the different devolved areas. To this effect, the devolved arrangements do not pose a threat to parliamentary supremacy.
Changing Approach Of The Courts
Lord Hope argued in the R (Jackson) v Attorney General [2005] that the parliamentary supremacy doctrine is solely a judicial creation hence there was no absolute prohibition on courts evaluating the validity of Acts of Parliament. This approach on parliamentary supremacy from the UK courts would evidently show that they are reducing the importance it was accorded. The courts have now been willing to comment on the changing nature of the British Constitution but also ensuring that parliamentary supremacy is still considered the general principle of its constitution.
Conclusion
The doctrine of parliamentary supremacy has remained an important part of the UK constitution that has largely influenced decisions that are made by courts. However, with time, its implementation would not follow the pattern envisaged by Dicey of its laws being the absolute legislation. Rather, the UK Courts have noted that upholding this supremacy will at times go against community law yet the latter would have acted as per the will of the people. Nevertheless, the UK will have to move towards a codified constitution for considerable changes to be made to the parliamentary supremacy of the UK’s parliament.
References
Anamika, A. (2021). UNIT 9 PARLIAMENTARY SUPREMACY AND RULE OF LAW IN UK. Retrieved from https://egyankosh.ac.in/bitstream/123456789/71810/1/Unit-9.pdf
The Constitution Society. (2022, March 3). Devolution. Retrieved from https://consoc.org.uk/the-constitution-explained/devolution/
Cesran International. (2020). EU law vs UK law – The primacy of EU law over national law: Great Britain’s response. Retrieved from https://cesran.org/eu-law-vs-uk-law-the-primacy-of-eu-law-over-national-law-great-britains-response.html
Gecer, A. E. (2013). The Principle Of Parliamentary Supremacy In The UK Constitutional Law And Its Limitations. Ankara Bar Review, 6(1), 155-168.
McConalogue, J. (2020). The Impact of EU Membership on UK Government and Parliament’s Sovereignty. In The British Constitution Resettled (pp. 1-32). Palgrave Macmillan, Cham.
