The Concept of Parliamentary Sovereignty - Assignment Example

? Parliamentary Sovereignty The concept of Parliamentary Sovereignty constitutes an important pillar of democracy. Parliament was granted a superior position, chiefly to curb monarchical power, which was frequently seen to be seized with compromising liberty and democracy. Consequently, the sovereignty of Parliament is of paramount importance in Britain, which is also its place of origin (Ginsburg, 2003, p. 1). However, there have been a number of occasions, when parliamentary sovereignty had been challenged. A.V. Dicey, the British jurist and constitutional theorist, formulated the theory of parliamentary sovereignty. This concept consists of two cardinal principles. First, Parliament has the power to make or annul any law irrespective of its nature. Second, no other agency, entity, or person has the power or right to override or annul the statutes made by Parliament (Warren, 2008, p. 3). In Britain, the sovereignty of Parliament has been reviewed in domestic and international contexts. As a member of the European Union, Britain had to permit the incursion of the laws of the European Council. This required Britain to review its domestic laws, on a regular basis, so as to ensure that they were compatible with the European Council (EC) law and Britain’s international obligations (Ginsburg, 2003, p. 3). As a result of these developments, the national courts in Britain have to interpret domestic law in the light of EC law. An important constituent of the common law is the fundamental tenet of legislative supremacy. Nevertheless, it would be erroneous to describe it as being inviolable. In fact, there are a number of precedents that inexorably establish that legislative supremacy can be altered by judicial decisions and Acts of Parliament. Consequently, it is imprudent to vehemently assert the supremacy of Parliament (Bradley & Ewing, 2007, p. 78). The inexorable incursions of European integration have significantly diluted the Diceyan principle of legislative supremacy. Thus, the courts, consequent to empowerment by the Human Rights Act 1998, are nearly proximate to a position, whereby they can rescind an Act of Parliament. Moreover, the introduction of the principle of devolution implies that legislation is not the sole preserve of Westminster (Bradley & Ewing, 2007, p. 78). In the UK, an Act of Parliament had precedence over any other international law, under the doctrine of Parliamentary sovereignty. This was the situation in the UK prior to its becoming a member to the European Union. The enactment of the European Communities Act 1972 changed this situation by making the national laws subordinate to EC law (Fabunmi & Araromi, 2009, p. 198). As such, the European Communities Act 1972 obliged the Member States of the European Union to circumscribe their sovereign rights. This was the outcome of their having to transfer power from their domestic legal system to the EC. Thus, EC law takes precedence over domestic law (Fabunmi & Araromi, 2009, p. 198). Furthermore, every Member State has to implement the provisions of the Treaties and give legal effect to them, without any deviation. Consequently, the UK Parliament is constrained by the European Communities Act to enact laws that are compatible with Community Law. Specifically, section 2(1) of the European Communities Act 1972, precludes Parliament from making laws that are incompatible with Community Law. Furthermore, the provisions of this section make it obligatory for Parliament to give effect to the EC Treaties in its legislation. Thus, EC Law has to be recognised and implemented. Membership of the European Union caused the UK to change its system of weights and measures to the metric system. This was greeted with considerable hostility among the public and culminated in the Thoburn v Sunderland City Council or metric martyrs’ case. In its ruling the Court of Appeal opined that the Parliamentary sovereignty was seriously impacted by the European Communities Act 1972. This specific Act had engendered the harmonisation of the domestic legislation of the UK with the EC Law. In his judgement Lord Justice Laws expressed the impossibility of circumventing the provisions of the EC Act 1972, which was a constitutional statute at common law (Thoburn v Sunderland City Council , 2002). As such, European Community Law gained supremacy over domestic legislation. There is considerable activity related to determining the compatibility of British law with EC law. The act of becoming a Member State of the European Union has rendered its domestic legislation subordinate to European law. Such subordination was established with the disapplication of a parliamentary statute, by the House of Lords, in order to conform to the ruling of the ECJ in the Factortame case (Ginsburg, 2003, p. 3). The enactment of the Human Rights Act 1998, in order to incorporate the provisions of the European Convention of Human Rights (ECHR), has resulted in an increase in the involvement of the national courts, with regard to examining the constitutionality of parliamentary statutes. The domestic courts routinely examine national laws, in order to determine whether they are in compliance with the provisions of the ECHR. The Human Rights Act attempts to restore parliamentary sovereignty, by permitting the derogation of Parliament from the Convention (Ginsburg, 2003, p. 4). However, this measure of relief has not proved to be successful, on the whole. Despite the fact that Parliament has the power to annul any of its Acts, the decision in Jackson makes it evident that any law enacted on the basis of an existing Act has the same level of legitimacy as any legislation that is enacted by Parliament. This decision generated several questions relating to the concept of parliamentary sovereignty (Warren, 2008, p. 3). However, it is a fact that the courts would set aside any statute that is irreconcilable with fundamental values. In this case, the House of Lords held that legislation passed under Parliamentary Acts did not constitute delegated legislation. Such laws were to be treated as ordinary legislation that was passed in the normal course. These laws do not enjoy any special status over other Acts, passed in the normal course (R (Jackson and others) v Attorney-General, 2005). There is considerable judicial activism in the UK, and this has been demonstrated quite frequently. The result is law that emanates from decisions taken by the judges in the court. For instance, in Ghaidan v Godin – Mendoza, the House of Lords held that homosexual couples had the same rights as their heterosexual counterparts, provided the former had been in a long term relationship (Ghaidan v Godin-Mendoza , 2004). Thus, judge made law slowly pervades the power of parliamentary sovereignty. In addition, the decision in Costa v ENEL effectively established the supremacy of EC law over domestic law. In this case, the ECJ held that EC law prevailed over national law. It was also held that this applies to national law even when such law had been enacted, subsequent to the relevant EC law (Flaminio Costa v ENEL, 1964). In R v Burstow and R v Ireland, the House of Lords interpreted sections 20 and 47 of the Offences Against the Person Act 1861 in the existing social context. These cases involved psychiatric injury, and although the Act was silent about psychiatric injury caused without physical contact, their Lordships ruled that psychiatric illness could amount to bodily harm (Fabunmi & Araromi, 2009, p. 200). As such, courts are taking the initiative to interpret law according to the changing social context. Moreover, the importance of the principle of constitutional statute was emphasised in Robinson v Secretary of State for Northern Ireland. In their ruling in this case, the House of Lords held that the Northern Ireland Act 1998 was the constitution for Northern Ireland (Robinson v Secretary of State for Northern Ireland and others, 2002). Parliament enjoys vast powers, and it can enact or rescind laws under the doctrine of Parliamentary Sovereignty. In this endeavour it can enact laws that violate fundamental human rights, if the circumstances require it do so. As such, the power of Parliament is politically motivated and not legal (Allan, 2003, p. 580). The contention that legislative supremacy is to be preserved is fortified if it can be demonstrated that sufficient protective measures are incorporated in the political system, which prevent the enactment of legislation that violate fundamental rights or basic constitutional principles (Bradley & Ewing, 2007, p. 79). However, the extant system is subject to intensive and extensive political controls. Therefore, it would be incongruous to expect this system to accord adequate protection to minority groups and individuals, who are susceptible to legislative subjugation. References Allan, T. R. (2003). Constitutional Dialogue and the Justification of Judicial Review. Oxford Journal of Legal Studies, 23(4), pp. 563 – 584. Bradley, A. W., & Ewing, K. D. (2007). Constitutional and administrative law. Pearson Longman. European Communities Act 1972. (n.d.). European Convention of Human Rights 1950. Fabunmi, M., & Araromi, M. (2009). The Impact of Constitutional Principles on the Administration of Justice in United Kingdom. European Journal of Scientific Research, 33(1), pp. 195 – 201. Flaminio Costa v ENEL, ECR 585 (6/64) (1964). Ghaidan v Godin-Mendoza , UKHL 30 (House of Lords 2004). Ginsburg, T. (2003). Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge University Press. Human Rights Act 1998. Mortensen v Peters, 14 SLT 227 (1906). Northern Ireland Act 1998. (n.d.). Offences Against the Person Act 1861 . (n.d.). R (Jackson and others) v Attorney-General, QB 579 (Queen's Bench 2005). R v Burstow , 4 All ER 225 (1997). R v Ireland, 1 Cr. App. R. 177 (1998). R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2), 1 AC 603 (House of Lords 1991). Robinson v Secretary of State for Northern Ireland and others, UKHL 32 (House of Lords 2002). Thoburn v Sunderland City Council , EWHC 195 (England and Wales Court of Appeal 2002). Warren, M. (2008). Unelected does not equate with undemocratic: Parliamentary Sovereignty and the role of the judiciary. Deakin Law Review, 13(2), pp. 1 – 16. Read More