Doctrine of the Supremacy of Parliament in the Modern United Kingdom - Essay Example

? Topic: ‘The ic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom.’ Lord Steyn in R (on the application of Jackson and others) v Attorney General- An Analysis It is widely acknowledged that there is no written constitution in UK. Due to want of modern written constitution, the varieties of norms which one would usually observe are not available under UK’s judicial map except to the magnitude to which they have been borrowed from the membership of the European Union and from the European Convention of Human Rights. Though, the judiciary was not isolated institutionally from the Parliament, but, the judiciary was and is considered as having been employing or employed a sizeable magnitude of independence from that of Parliament. When the Bill of Rights introduced in 1689, it attempted to regulate the association between the Parliament and the Queen in a legitimate dominion, and it has been custom of the court to give due recognition to the pre-eminence of an Act enacted by the Parliament1. By the enactment of Bill of Rights, in 1689 can be said that it recognised the customary view that the supremacy of the Parliament as it stated that in Chapter 02-1, that the “pretended authority to enact or annul laws by so-called regal authority without approval of the parliament is not legally valid, and this had made the Parliament’s law enacting authority above that of monarchy. Before the passing of the Bill of Rights, it could be claimed by the judiciary that the common law ( judge made laws or verdicts given by judges) regulated statutes thereby making them invalid if an Act is said to be against common reason or right or not possible to be implemented as held in Dr Bonham’s case2. As per Wade3, the concept that the Parliament is independent since the judge recognises Parliament’s political and legal supremacy. Under customary constitutional theory, law is known what the Queen in Parliament endorses4; The principle of parliamentary sovereignty connotes that under UK’s constitution, the privilege to enact or repeal any law, whatsoever, and, further, that no individual or body is acknowledged by the law of UK as having the privilege to annul or overrule the law enacted by the UK Parliament. However, Dicey’s5 strict elucidation that the parliamentary sovereignty is the supreme is not free from criticism as in recent times, there has been judicial rejuvenation as corroborated by judicial verdicts that the courts in UK consider themselves as preserving some residual privileges to refute the authority of legislation. Lord Woolf6 viewed that "“finally there are even restrictions on the domination of parliament which it is the UK’s court absolute power to recognise and endorse7. In Jackson v Attorney General8, Lord Steyn, viewed scepticism whether the Diceyan view that parliament sovereignty was still holds good9: “The typical description made by Dicey on the “doctrine of dominance of the Parliament is absolute and pure, as it had been, can now be regarded as gone out of practice in the modern era of UK. Nonetheless, the domination of Parliament is yet regarded as the general principle of UK’s constitution. It is a notion that has been built upon the common law. Judicial rejuvenation can be explained as judge made laws. In such scenarios, it is not preposterous that scenarios could occur where the courts may have to hold good a principle formulated on a varied theory of constitutionalism10.” While finding the proposition of the HRA (Human Rights Act) for parliamentary sovereignty , Alison Young11 was of the view that the courts should interpret and offer impact to the laws so that it becomes in line with the rights enshrined in the European Convention on Human Rights , 1950(ECHR). In case , if it is impossible to locate a convention well-matched with elucidation of a statue , then some courts are toothed with the authority to hold non-binding Declarations of Incompatibility under section 4 of the HRA. Now, the UK parliament has only two options –either to amend the irreconcilable law or may select not to. Thus, the HRA seems to permit for the safeguard of the human rights while at the same time safeguarding parliament’s independence12. In Robinson, v Secretary of State for Northern Ireland and Others13, the Parliament of Northern Ireland had selected its first minister and deputy after the lapse of six weeks from the date of the election. However, as per the Act, such selection should have been completed within the six weeks immediately after the election. It was disputed that the Parliament could not function outside the ambit of its authority since it is a creature of the statute. It was held in this case when the Act had been enacted, it was not anticipated that its application would not be so easy. The court interpreted the six-week time limit permitted for interruption by the Secretary of State, and the wording in the Act assumed that an election is yet to be convened and hence the election of minister and deputy was held legally valid14. When UK joined the European Union, the treaty of the Rome was incorporated by the European Communities Act 1972 into the British legal system. As per European Communities Act 1972, all privileges ushered by the Treaties, are to be introduced into UK’s legal system without further enactment. Further, CJEU (the Court of Justice European Union) emphasised the dominance of the EU law in all the Member Nations. CJEU held in the case Costa v ENEL15, that the Member Nations had restricted their authority or legal independence upon becoming the member of the European Union16. Further, CJEU viewed in Simmenthal II 17case that the national court should annul differing laws from that of EU laws18. On becoming the EU member, it is a pre-requisite for the UK to be the signatory of ECHR. Hence, as long as, UK is the member of the EU, then it is bound to the ECHR. It is to be observed that the UK incorporated already the ECHR provisions into its domestic legal system by adopting the same in its Human Rights Act, 1998. Imagine a scenario where the UK Parliament by passing a law implicitly suspended all the human rights provisions of the ECHR from its Human Rights Act, which ensured the fundamental privileges to the British citizens. If such scenario occurs, and the Human Rights Act was expressly annulled or substituted with the Bill of Rights, an UK citizen can still enforce their privileges available under the Convention at the ECHR. Thus, the UK’s Bill of Rights would necessarily ensure the same rights available under the Convention19. In S & Marper v UK20, the UK found its legal authority gravely annulled by the ECHR regulation engrossing the DNA and finger print samples taken and retained from those individuals who had been detained and even after their release21. In S& Marper v United Kingdom, it was held that UK is the only EU Member Nation which explicitly allows the retention of cellular and DNA samples of those individuals who have been exonerated from the charges levelled or with regard to whom, there had been discontinuance of the criminal proceedings. The EU cited the Article 8 of ECHR, which offers a Right to Privacy through the Directive 95/46. Thus, by retaining the DNA samples of those accused even after their acquittal was regarded as a violation on private life and privacy. The controversial issue here was that despite the fact the UK was permitted by the EU to enact the law within its domain as a required initiative for the identification , prevention and booking of crime , but, without placing due regard to the Recommendations R (87) 15 of the Committee of Ministers of the Council of Europe22 . On international human rights issues, UK has incorporated the major human rights provisions in the International Covenant on Civil and Political Rights (ICCPR)23. As the UK is a party to the International Covenant on Civil and Political Rights (ICCPR) and also other international human rights code, the privileges and independence what they covered are warranted, under the international law against the exploitation of executive, legislative or judicial authority within the UK. Its’ chief goal is to safeguard the ordinary citizen against the ill-treatment by public authorities of general public. This may have also direct impact on the public policy in private law provinces, and hence have an oblique both vertical and horizontal impact. Both the covenant and convention compel the UK in international law to safeguard their privileges and freedoms in domestic law and to offer efficient reliefs before national officials for infringement of their provisions. 24UK had espoused the Convention Against Torture; the UK Parliament approved the same through the Criminal Justice Act 1988, thereby including the international jurisdiction over the crime of torture unleashed in any part of the globe25. Conclusion From the above discussion, we can understand that the EU law has no doubt has impacted the supremacy of the UK’s Parliament. It was criticised that UK is bonded to the EU for more that it was ever anticipated 26. Nonetheless, it should be remembered that it was Parliament’s aim to be thus bonded to EU laws. However, if UK’s Parliament, with intention, has enacted an act which might be infringing the EU‘s law, with an explicit covenant that the intention of the Parliament to be exercised in such a manner, it should be acknowledged that Parliament has every right to do so. It is fit to recall what was observed in McCarthy’s v Smith 27by Lord Denning; “With a deliberate intention, if UK’s Parliament enacts a law , with the sole objective to annul the treaty , then , UK courts are bound to adhere the laws of UK’s Parliament. “ It is to be noted that the EU’s treaty is not binding on UK’s Parliament; but, it is the European Communities Act 1972 which integrated the Treaty into UK law, thus specifying an explicit avowal that the Act is obliging on all other Acts. Though the Act only obligates implicit repeal, it does not connote that, if UK’s Parliament, at a later period, could explicitly annul the Act, thus pulling out wholly from the clutches of EU. It is to be noted that the UK has accepted the EU sovereignty but with some qualification. However, due to provisions of Bills of Rights 1689, supremacy of the UKs Parliament still prevails notwithstanding the fact the legal progress in the ECHR and EU. However, by being with EU, UK’s has observed its legal authority has ever dwindled. The current happenings demonstrate that if at all, UK wants to demonstrate its Parliament’s supremacy, it has to liberate from the clutches of the EU, the prospect for which under the present or predictable future political development, appears to be blinking28. References Anthony G, UK Public Law and the European Law (Hart Publishing2002) Bailey S. H. Cases, Materials and Commentary on Administrative Law, (Sweet & Maxwell 2005). Barnett, H, Constitutional and Administrative Law (Routledge-Cavendish 2008). Brown, K B, A Comparative Look at the Regulation of Corporate Tax Avoidance (Springer2011) Commonwealth Secretariat – Interrghts. Developing Human Rights Jurisprudence. London: Commonwealth Secretariat (2001 Commonwealth Publications) Dicey, A.V, Introduction to the Study of the Law of the Constitution [1885]. (Macmillan1959) Foreign and Commonwealth Office, Human Rights: Annual Report (TSO 2005). Goldsworthy J, Parliamentary Sovereignty: Contemporary Debates (Cambridge University 2010) Goldsworthy J, Parliamentary Sovereignty: Contemporary Debates. Cambridge (Cambridge University Press 2010) James Allan, The Vantage of Law: It’s Role in Thinking about Law. Judging and Bills of Rights. (Ashgate Publishing 2011) Joan P& Kapteyn G, The Law of the European Union and the European Communities (Kluwer Law International 2008) Mitchell, J, ‘Parliamentary Supremacy in the UK since Joining the European Union ‘ accessed 6 March 2012 Rodger, B J & Fernandez M A Article 234 and Competition Law: An Analysis (Kluwer Law International 2008) UK Parliament Home Affairs Committee, Surveillance Society? Report, together with Formal Minutes (TSO 2010) W.Wade, ‘The Basis of Legal Sovereignty’, [1955] Cambridge Law Journal 172 Wade W, ‘Habeas Corpus and Judicial Review ‘[1997]113 LQR 55 66 Weissbrodt, D S & Vega, C de la, International Human Rights Law: An Introduction (Pennsylvania University Press2007). Wolf, ‘Droit Public-English Style’ [1995] Public Law 57, 68 Wright, D & Hert, P D, Privacy Impact Assessment (Springer 2011) Young D, Parliamentary Sovereignty and the Human Rights Act (Hart Publications2008) Young, D A, ‘Judicial Sovereignty and the Human Rights Act 1998’ [2002] 61 CLJ 53 Read More