Parliamentary Sovereignty - Essay Example

Parliamentary Sovereignty Thesis ment The European Communities Act compromises Parliamentary Supremacy in the UK. This has been established by the following discussion. Introduction Parliamentary Sovereignty is a basic tenet, which dictates as follows. Parliament is the supreme legislative body that can enact, annul, or modify any law. It can, in its discretion alter the laws enacted by its predecessors, if it deems fit to do so. As per the words of an eminent scholar, the soul of Parliamentary Sovereignty can be embodied in the statement, “What the Queen in Parliament enacts is law”.1 In a tacit manner, it can now be well understood that the legislative branch of the government has a higher degree of power in comparison to the other two branches namely – the executive and judicial branches. This is often not in best interests of the principle trias politica, which requires that the three branches of government to be equally poised, function in harmony with each other and not exert any unwarranted pressure.2 Specifically, in Britain, the House of Commons gained supremacy over the House of Lords after the institutional transformations that took place in the 19th and 20th centuries. Thus, by virtue of parliamentary sovereignty, the House of Commons, obtained supremacy over the judiciary. 3 Parliamentary Sovereignty can be regarded as a tightly knit conception that is based upon three fundamental ideas. The first of these ensures that no fundamental law is permanent, and at the discretion of Parliament can be amended as required. Although it is relatively more resilient to change as compared to ordinary laws, political conviction determines the significance of fundamental law. 4 The second idea is instrumental in establishing the supremacy of Parliament over the executive and the judiciary. The acts of Parliament cannot be annulled by other government bodies, by citing reasons, such as the violation of the constitution. Lastly, a parliament cannot exercise steadfast control over the future, by requiring the succeeding parliaments to be bound by the acts legislated by their predecessors. Thus, past legislative exercises can be amended or even set aside by succeeding parliaments. 5 Thus, no entity can supersede the laws laid out by the Parliament, which implies that the laws enacted by it cannot be challenged in a court of law. Interestingly, such a principle of Parliamentary Sovereignty has a profound impact on the judicial system and judges. These judges exhibit a conformist approach, with the intention to avoid any possible conflict with the ideologies put forth by the legislators. Undoubtedly judges, who are expected to work independently without any external forces influencing their verdicts, are often restrained by the notions promoted by the elected legislative bodies. In addition, the courts, until the early 1990s, had been reluctant to grant administrative judicial review, especially with respect to the central government. 6 The constitutional status and the political role of the judiciary have been substantially altered by the European Communities Act 1972 and the Human Rights Act 1998. When England took up the membership of the European economic committee in 1973, the authority of judiciary improved significantly, on account of adherence to the EU statutes.7 As such, the authority to assess and deny parliamentary statutes was bestowed upon the judiciary, under circumstances when the statutes were not in compliance with community law. In particular, the European Communities Act 1972 gave legal effect to the subjection of the UK to existing and future Community law. This indicated acceptance of the direct applicability and supremacy of Community law over domestic law. Consequently, the domestic courts were conferred with important powers and jurisdiction. Although parliamentary sovereignty ensures that the British parliament, can at any point of time rescind the authority of EU law, by taking drastic measures, even to the extent of withdrawing from the EU, it is now not economically or politically viable to take such an extreme decision and face the repercussions of doing so. 8 The European Communities Act 1972, at Section 2, enjoins that every piece of parliamentary legislation, has to be construed and applied in compliance with Community law. Hence, English law has to be interpreted as being subject to the principle of supremacy of Community law. For example, in Van Gend en Loos, 9 it was held that a new legal order had come into existence, due to the Community. This required the Member States of the European Union to limit their sovereign rights, in some areas. This clarifies that Parliament binds itself, while making laws. The acts of Parliament have to comply with Community law. This principle tends to prevail with regard to normal legislation. 10 With respect to the Act of Settlement, a different interpretation had to be accepted, regarding the principle of Van Gend en Loos. This statute had not excluded the possibility of creating a republican government, on a permanent basis. Its emphasis was related to stipulating the conditions applicable for monarchical succession, during the existence of monarchy. Adopting a constitution system is critically significant. For instance, it refutes the criticism that such perspective of the primacy of Community law could actually constitute a good form of Community constitutional law. 11 However, such law has no relation to the constitutional law of the United Kingdom, as the supremacy of Community law had been conceded with the entry of the nation into the European Union. Furthermore, a proper perspective is accorded to the 1972 European Communities Act. In R v Secretary of State for Transport ex parte Factortame (1990),12 the European Court of Justice explicitly declared that the English courts had to apply the directly effective Community law. Such law had to be applied, even if it were in conflict with English law.13 Consequently, the House of Lords struck down certain sections of the Merchant Shipping Act 1988 that were in conflict with the Treaty of Rome. With this ruling, the national courts were required by the European Court of Justice to ignore any domestic law that did not comply with Community law.14 A defence of reliance upon Community law thus arose, even in criminal cases, as was seen in Pubblico Ministero v Ratti.15 In Factortame, the association between United Kingdom law and European law, and the nature of Parliamentary Sovereignty, were clarified. National law was clearly shown to be subservient to Community law. Acceptance of the membership of the European Union had automatically compromised Parliamentary Sovereignty. 16 In Thoburn v Sunderland City Council,17 it was contended that the Weights and Measures Act 1985, had implicitly repealed the European Communities Act 1972. This was rejected by the court, as a constitutional statute, such as the latter act, could only be repealed expressly.18 In addition, in Commission v Belgium, 19 clarification was provided regarding the institutions that were bound by the Treaty. The ruling in this case clearly stated that all state authorities were to be regarded as bound. This applied even to the state authorities that were accorded an autonomous status by the constitution. Thus, the judiciary was also deemed to be bound by the Treaty. The doubts that arose due to this ruling were clarified in the subsequent cases. Moreover, the doctrine of direct effect unambiguously upholds the primacy of Community law. This is critical, otherwise the very notion of direct effect stands to be frustrated. The judiciary of the United Kingdom has been forced to arrive at the conclusion that the primacy of Community law prevails upon case law, ordinary law, statute law, and even the national constitutional law. 20 This principle was highlighted in the early rulings, such as that in Costa v ENEL,21 and it has been made very clear in the recent cases. In the absence of such principle, the entire system could be endangered due to constitutional amendment. The consequence of such change would be the endangering of the necessary uniformity of effect. 22 Conclusion The European Communities Act 1972, enacted after the United Kingdom voluntarily became a Member State of the European Union, has a number of important implications. The law of the United Kingdom has to comply with Community law. Moreover, Parliament has to enact legislation that does not conflict with Community law. Furthermore, the judiciary has to make rulings that comply with Community law, even if this necessitates the overriding of domestic legislation. Thus, the voluntary joining of the European Union by the United Kingdom has ensured the erosion of Parliamentary Sovereignty. The fundamental commitment of the nation, at the time of joining the European Union, has been that it will regard Community law to be of primacy. Moreover, whenever a dispute arises between Community law and national law, Community law is to prevail. According to the above discussion and case law, it can be surmised that community law has compromised Parliamentary Sovereignty of the United Kingdom. Bibliography Case 47/2008 European Commission v Kingdom of Belgium [2011] ECR I -04105. Case 6/64 Flamino Costa v ENEL [1964] ECR I-00585. Case 26/62 P NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR I-00001. Case 148/78 Pubblico Ministero v Ratti [1979] ECR I-01629. Delaney, EF., Judiciary Rising: Constitutional Change in the United Kingdom, University Law Review, vol. 108, no.2, 2014. European Communities Act 1972. Geçer, AAE., The Principle of Parliamentary Supremacy in the UK Constitutional Law and its Limitations, Ankara Bar Review, vol. 6, no.1, 2013. Herreros, MS., ‘European Union’, http://www.spanishlegal.co.uk/essay.htm, 2009, (accessed 5 July 5, 2014). Human Rights Act 1998. Ingman, T., The English Legal Process, Oxford University Press, 2011. Merchant Shipping Act 1988. Mitchell, JDB., The Sovereignty of Parliament and Community Law: The Stumbling-Block That Isnt There, International Affairs, vol. 55, no.1, 1979. R (Factortame Ltd) v Secretary of State for Transport [1990] UKHL 7. Tabarelli, M., The Influence of the EU and the ECHR on Parliamentary Sovereignty Regimes: Assessing the Impact of European Integration on the British and Swedish Judiciaries, European Law Journal, vol. 19, no.3, 2013. Thoburn v Sunderland City Council [2002] EWHC 195. Treaty establishing the European Economic Community 1958. Read More