The Significance of Parliamentary Sovereignty in the United Kingdom - Essay Example

This paper is an analysis on the extent in which the Parliamentary Sovereignty in the United Kingdom gives parliament the power to make and unmake any laws in the country (Dicey, 1902). In meeting up the objectives of this paper, this paper would try to analyze some of the factors that are challenging the concept of parliamentary sovereignty in United Kingdom. This includes the judicial powers, which are normally exercised through judicial reviews and the various laws relating to the European Convention of Human Rights (Watts & Pilkington, 2005). Under the constitution of the United Kingdom, Parliamentary sovereignty is an important principle, that defines the manner which the various laws enacted by parliament are implemented, and catered for. This concept recognizes the parliament as the Supreme authority, in relation to legal matters (Watts & Pilkington, 2005). The principles of parliamentary sovereignty further denote that the parliament in the United Kingdom has the sole authority of making and ending any laws that are implemented in the United Kingdom. Therefore, the courts in the United Kingdom do not have any power and authority of overruling any legislation passed by parliament. Furthermore, under this concept of parliamentary sovereignty, a sitting or current parliament has the power and authority to amend any legislations or laws that have been passed by past parliaments (Dicey, 1902). This means that any sitting parliament is sovereign, in relation to matters that involve the passage of laws and legislations. However, it is important to explain that in accordance to the 1990, land mark case of Marleasing SA vs. La Comercial Internacionale, the Europe Court of Justice was able to rule that national countries have the responsibility of interpreting national laws and legislations, by themselves. These are laws and policies whose directives have not been issued out by the European Union. However, by closely looking at this judgement, the court was asserting that directives issued out by the European Union are final, and the any law passed by member countries, those conflicts with these directives, is null and void. This includes laws enacted by the British parliament, hence this judgment has the capability of affecting the sovereignty of the British parliament (Watts & Pilkington, 2005). The parliament of the United Kingdom has been involved in the passage of laws, which limits this concept of parliamentary sovereignty. Some of the factors responsible for the passage of these laws are because of the decision by the United Kingdom to join the European Union, and hence being part of the treaty forming the Union (Watts & Pilkington, 2005). This means that some of the laws that have been enacted in the United Kingdom are rendered invalid, by the laws formed by the European Union. Judicial reviews, based on the laws of the European Convention of Human Rights have also played a role in challenging the sovereignty of the UK parliament (Fenwick & Phillipson, 2003). Through these developments, and the manner in which judicial reviews have managed to challenge various laws passed by the British Parliament have played a role in raising questions on whether the modern day British Parliament is sovereign or not. There are other political development that has also been responsible for limiting the sovereignty of the British Parliament. These factors include (Fenwick & Phillipson, 2003), The devolution of legislative authority, to the Welsh Assembly, and to the Scottish Parliament. The enactment of the 1998 Human Rights Act. The decision to scrap the judicial authority of the House of Lords, and hence create the Supreme Court in the year 2009. However, it is important to explain that despite the existence of these issues, they do not have the capability of undermining the sovereignty of the British parliament. This is because parliament has the power and authority of repelling these laws, and asserting its authority (Fenwick & Phillipson, 2003). Currently, the courts in the United Kingdom have the capability of assessing whether the laws are compatible with the various laws of the European Union, and the ECHR rights. A good example is depicted in the case of R vs. the Secretary of State in Charge of Transport. In this case, a Spanish fisherman was able to take the British government to court, because of a law that required any shipping company, to have the citizens of Britain as the majority shareholders. The court was able to review this case, and it struck down the 1988 Merchant Shipping Act, declaring it incompatible with the European Union laws (Turpin & Tomkins, 2007). This means that the notion of a sovereign parliament was greatly challenged, because of the power of the court to review the various legislations passed by the parliament, and the decision of United Kingdom to join the European Union. It is important to note that the challenge to the sovereignty of the British Parliament has met some resistance, and even opposition from the judiciary. An example is the 1980 case of McCarthy vs. Smith. In this case, Lord Denning denoted that for parliament to maintain its sovereignty, there is a need of passing laws that are expressly implied, and hence there wont be a need of the courts to interpret such laws. Through this action, the courts would be tied, and forced to implement the law, as expressly stated. In the case of R vs. Plymouth city council, some members of the legislature wanted to prevent the court from reviewing the decisions of the actions of the executive, which have been approved by the legislature, or an act of parliament. However, in providing a ruling to this case, the judge denoted that there is a considerable need of analyzing and scrutinizing any case that is brought before the court for a judicial review (Jones, 2009). The judge recognized the concept of parliamentary sovereignty. This therefore means that the courts should not be allowed to frustrate the concept of parliamentary sovereignty. However, with the passage of the 1998 human rights act, the courts have constantly reviewed the various laws that have been enacted by parliament, for purposes of ensuring that they do not conflict with the European Union laws on human rights. In the United Kingdom, the courts have the capability of allowing legislations that are enacted by the European Union, and this is at the expense of the domestic laws that are created by the British Parliament (Fenwick & Phillipson, 2003). However, it is possible to challenge this notion, and this is by citing the unconstitutionality of the law under consideration. Section 4 of the 1998 Human Rights act allows the courts to use the concept of unconstitutionality, while ruling that a particular legislation in the United Kingdom is not compatible with the various laws that are characterized with the Human Rights Convention of Europe (Jones, 2009). By the introduction of this section, the intention of the parliament of United Kingdom was to that laws it protect its sovereignty, by making sure that the laws its enacts are sovereign and applicable in United Kingdom. The preamble that formed the 1998 Human Rights act, this law was able to incorporate the human rights convention of Europe, into the domestic laws of the United Kingdom. This therefore means that the ECHR is part of the laws of the United Kingdom, and they are domesticated. Despite this situation, the parliament of the United Kingdom has the power and capability of suspending the application of these laws. The declaration of unconstitutionality, as a method of promoting the sovereignty of the parliament in the United Kingdom has two major advantages. One advantage is that this method fits well in the political process and culture of the United Kingdom. This is a culture, whereby the judges in this state do not have the sole responsibility of being the guardians of the rights and freedoms that the people of United Kingdom are able to enjoy. However, the 2005 case of Jackson vs. the attorney General challenges this notion of parliamentary sovereignty. Under this case, the House of Lords were given the responsibility of determining whether the British parliament was right in the passage of the 2004 Hunting Act (Jones, 2009). This act made it illegal for anybody to hunt wild animals, using dogs. Dogs could only be used under limited conditions. In the enactment of this law, parliament did not consult the House of Lords, hence there were fears that the law was illegal, because it did not pass the due process, that determines the manner which the legislature can enact laws. The laws under consideration were the parliamentary acts of 1949, and the parliamentary act of 1911. While providing a ruling in this case, the court refused to declare the 2004 hunting act as illegal, and this is because the parliament was able to follow the due process of law, and this is also because parliament has the right and authority of passing any legislation, and this based on the provisions contained in the 1911 parliamentary act. This case is important because of the various factors that it was talking about, in regard to the sovereignty of the British Parliament. For instance, the House of Lords gave a ruling that it had the duty and jurisdiction of reviewing the various laws that are passed by parliament (Watts & Pilkington, 2005). This, in itself frustrates the doctrine of parliamentary sovereignty, which puts the parliamentary laws above any review. It is therefore important to explain that this was the first case that provided an express support to the courts that they had the capability of striking down any laws and legislations passed, which could infringe upon the rights of people. This is as opposed to the 1999 case of R vs. the Transport Secretary, which gave an implied support of the ability of the courts to strike down the various acts of parliament, hence frustrating its sovereignty. It is important to explain that the role of the courts in examining the sovereignty of the parliament is not basically based in either allowing or not allowing the legislation under consideration (Watts & Pilkington, 2005). However, based on public interest, the court can balance the law, and allow its implementation in a manner which satisfies the initiators of the law, and the public. This is better depicted in the case of R vs. the County Council of Sussex. In the formulation of this policy, the court was interested in the manner which the County of Sussex was able to carter for the interests of the people, whom this legislation had targeted. Jackson (2007) explains that the same principle that the court was able to use in reviewing the various legislations that have been passed by parliament. However, it is important to explain that in cases involving human rights, politics are always involved, and hence a decision may be enacted that can either be a complete overhaul of the legislation under consideration, or even allowing its applicability. An important issue that emerges because of the incorporation of the EHCR into the British laws involves a situation whereby there is a difference in the incorporation of the rights of the convention, between the domestic court of the United Kingdom, and the European Human Rights Court (Jones, 2009). This is because on most occasions, the two courts would not reach a consensus on the best way to apply these rights. A good example is the 2001 case of Hirst vs. the Attorney General. In this case, there was a dispute between the English laws, and the convention of the ECHR, on the rights of prisoners who have committed a serious offence to vote. Under the EHCR treaty, these prisoners are allowed to vote, while under the British laws, these prisoners are not allowed to vote (Jackson, 2007). In coming up with a ruling, the court denote that it is only parliament that has the ability of providing such rights, and hence the case was not under the jurisdiction of the court. Furthermore, the court gave a ruling that the judiciary should not easily review legislations that have been enacted by parliament. Through this ruling, the court was recognizing the fact that the British parliament is supreme, and it is the only institution that has the capability of reviewing various laws and legislations. In the year 2004, the Human Rights court was able to find that the ban of prisoners to vote, in the United Kingdom was a breach of the laws and rules forming ECHR. Based on these facts, the European Union Court encouraged the British Parliament to change these laws, and make them to conform to the laws of the treaty (Jackson, 2007). Through this action, the European Union courts recognized that the sovereignty of the British parliament, and that it was the only institution that had the capability of making and unmaking of laws. In conclusion, the British parliament is still sovereign. This is despite the membership of the British government into the European Union, and the decision by United Kingdom to sign the EHCR treaty. For instance, the Human Rights Act of 1998, section 4 gives the courts the mandate to adopt the concept of unconstitutionality. This concept is only invoked, when issues pertaining to the ECHR or the European Union Laws are able to conflict with the laws of the United Kingdom. This means that the laws of the UK would have precedence over the EU laws, in circumstances when it comes to their applicability and the interpretation of these laws by the courts. Furthermore, it is important to explain that the parliament has the power of unmaking any law that previous parliaments made, just to carter for the interests of the country. Bibliography: Dicey, A.V. (1902) Introduction to the Study of the Law of the Constitution, 6th edn, London, Macmillan and Co., Ltd., (facs. edn, Adamant Media Corporation, 2005) pp. 378. FENWICK, H., & PHILLIPSON, G. (2003). Constitutional and administrative law. London, Cavendish Pub. Top of Form JACKSON, R. H. (2007). Sovereignty: evolution of an idea. Cambridge, Polity. Bottom of Form Top of Form JONES, C. (2009). A short history of parliament: England, Great Britain, the United Kingdom, Ireland and Scotland. Woodbridge, UK, Boydell Press. Top of Form TURPIN, C., & TOMKINS, A. (2007). British government and the constitution: text, cases and materials. Cambridge, Cambridge University Press. Bottom of Form Top of Form WATTS, D., & PILKINGTON, C. (2005). Britain in the European Union today. Manchester [u.a.], Manchester Univ. Press. Bottom of Form Bottom of Form Read More