UKs Doctrine of Parliamentary Sovereignty - Essay Example

UKS DOCTRINE OF PARLIAMENTARY SOVEREIGNTY by UKs Doctrine of Parliamentary Sovereignty Introduction The principle of the sovereignty or supremacy of the UK parliament is one of the central ideologies of the UKs constitution. For some researchers, it is regarded as the most important aspect of the constitution. It is the canon of UKs sovereignty that tells why a codified constitution in the UK is non-existent. Law researchers initially pronounced the principle of sovereignty in the mid-19th century. Nonetheless, in the post-war UK times past, particularly the most recent history, the practice of parliamentary sovereignty has been subjected to immense pressure because of some statutory reforms passed by former regimes affiliated to the Labour party in early 1970s and consequently at the end of the 20th century. Tracking back to the 70s era, the British government enacted laws that saw it join the European Communities (Gifford 2009). Their entry into the European Union brought about some fundamental effects in the UKs parliamentary sovereignty. The Parliamentary Sovereignty The principle of UKs Parliamentary sovereignty is derived from historical events that took place in late 1600s. Scholar’s trackback parliamentary sovereignty to the Glorious Revolution that took place in the year 1688. It is regarded by certain individuals as being a significant occasion in the lengthy growth of the separate powers and privileges of the UK Parliament, creating the dominance of laws over prerequisite powers. The UKs Parliament statutory power comprises not only the ability to amend the laws, but also the fact that no other institution within the constitution should have the power of doing so, other than the parliament. By Parliaments sovereignty, it is predestined that there are no statutory restrictions on jurisdictive powers and influences of the UK parliament (McGarry 2012). The Queen gives the bills that are approved by both houses namely: - the House of Commons and the House of Lords the Royal Assent to transform them to become Acts of "the UK" Parliament. Parliamentary Sovereignty additionally includes the notion that the UK courts are compelled to empower laws that are ratified by the UK parliament and to not question the decisions of the parliament exemplified in the statute. According to Albert Venn Dicey, the parliament has a right to unmake or make any rule and there is no other individual or institution recognized under the UK law, who has the mandate to supersede or set aside parliaments legislation. This declaration by Dicey demonstrates the typical explanation of the principle of Parliamentary dominance. It is, however, said that this doctrine of the absolute unlimited authority of parliament is obsolete and should be amended. UKs Accession to the European Communities Through the courtesy of the Royal Prerogative, the UK government has the authority to become involved in global treaties that bind the country. Nonetheless, the principle of the sovereignty of parliament means that no changes of the civil liberties of the UK citizens and everyone else within Britain can be executed without the knowledge and approval of the UK parliament. The civil liberties and freedoms enshrined within the constitution can only be changed or amended by an Act of Parliament (Schmitthoff 1973). Consequently, if Britain does not intend to breach its transnational responsibilities, the UK parliament has to integrate international laws into UK legislations through parliamentary enactment. In the year 1972, the UK Parliament ratified the European Communities Act that assimilated the Community decrees into the UKs judicial system. By so doing, the UK Parliament additionally combined two radical ideologies – the direct effect code and the supremacy code. The direct effect code denotes that Community regulations can confer rights and duties openly on persons and, therefore, domestic courts are required to infer all laws in acquiescence with the Community Law. The ruling of the European Court of Justice ratified this rule in the year 1963. Conversely, the courts decision in 1964 established the Supremacy of the Community Law through its decision in the case of Costa vs. ENEL (Schmitthoff 1973). The Supremacy rule denotes that Community Law is greater to domestic laws. What this meant was that Community Law was given priority in instances of conflict with domestic laws provisions. The two principals have heavily influenced the parliamentary sovereignty doctrine. As provided in one of the statutes of UKs parliamentary sovereignty and authority, the courts have no jurisdiction to avert or override parliaments legislation. However, UKs accession to the European Communities has altered this. Even though the UK parliament willingly passed the European Communities Act, the UKs parliamentary sovereignty has been placed under pressure. From the time of the enactment, UKs courts have the authority to evaluate Parliamentary Acts based on discordance with the Community legislations. It had also been provided by the UK laws that the parliamentary sovereignty decrees implied that no Parliament could ratify legislations that future parliaments could not amend (Taylor 1991). However, from the time, the UK joined the European communities, every freshly adopted Parliament is tied to the EU legislations and that they have to comply with all such laws. Nonetheless, the guardians of the principle of parliamentary sovereignty argue that such restrictions are voluntary and impermanent since hypothetically the Parliament has the authority to enact laws that may prompt their withdrawal from the European Community. Additionally, they accentuate the fact that all fresh bases of principal European Community laws and, in particular, the Treaties have to be assimilated by Parliamentary Acts. This denotes that the UK is not tied to a new international Treaty until the UK parliament decides to legitimize the Treaty by enacting a Parliamentary Act. The Assimilation of the Lisbon Treaty to the UK Legal System UKs civil liberties are protected by the Constitution and, therefore, can only be amended or altered by a Parliamentary Act. For that reason, the UK Parliament was compelled to pass a Parliamentary Act that amalgamated Lisbons Treaty provisions with that of the UK legislations, in order for them to be enforceable within the UK boundaries (Polak 2011). In June the year 2008, the UK Parliament passed the EU Amendment Act of 2008. By considering the sovereignty of the UK Parliament, a number of clauses contained in the Lisbon Treaty Act affect the Parliamentary Sovereignty. Some sections enacted new necessities for the erstwhile authority of the parliament before the ratification of the UK government of treaties modifying the original Treaties of the European Community. Another clause gave the UK parliament authority over the Governments capability to approve changes effected within the Passerelles or the Simplified Revision Procedure. The Sections aforementioned are vital for upholding the rule of the sovereignty of the UKs Parliament. The enacted law that states that the government must seek authority from the Parliament prior to enacting any changes to the original treaty in the future clarifies the notion of Parliamentary Sovereignty and the sovereign powers vested in the UK Parliament. It can be argued that this claim contradicts the EU laws of supremacy, given the fact that it is clearly stated that the European Community Laws take priority over any conflict with the Domestic Laws. Nonetheless, the Lisbon Treaty brought into effect a vital provision that unequivocally sanctions member states rights to leave the European Community. The Lisbons Treaty provision underscores the row that the nation remains tied to the European Communities Laws, so long as the UKs Parliament sees it fit to stay within the EU (Crowe 2008). For that reason, the amalgamation of the Lisbon Treaty into the UK Laws has in no way strained the UKs Parliamentary Sovereignty and hypothetically, the UK Parliamentary Sovereignty prevails in UKs Domestic Law. An additional significant subject is the EUs Charter of Fundamental Rights. The Charter in addition to Protocol 7 provide for the effective application and exercising of the Charter to the states of Poland and the UK. The Charter was made legally binding by Article 6 Amendment of the EU Charter of the Lisbon Treaty. Therefore, both the ECJ (European Court of Justice) and domestic courts have to consult with the principles and rights incorporated in the Charter in the process of interpreting the laws (McGarry 2012). Numerous UKs and Polish lawmakers became fearful that some freshly instituted rights would bind member states. The lawmakers, particularly within the UK argued that the legislation would jeopardize UKs sovereignty of the Parliament. That is the reason as to why Protocol 7 emerged as a way out from the EUs Charter of Fundamental Rights. Scholars have, however, demonstrated that the new Charter is in no way innovative and do not institute fresh rights. Protocol 7 is said to codify the pre-existing rights in addition to clarifying the Charters application (Taylor 1991). EU Membership and its Effects on UK’s Sovereignty A fundamental question posed by lawmakers and scholars alike is whether UK’s attachment to the European Union has had any limitations on the people of UK and their sovereignty. Sociologists have applied the Social Contract Theory to elucidate the relationship between the UE entity and the limitations if any on UK. Social theory has it that in the early days, individuals agreed to cede their powers and ruling authority to the monarch basically because of the numerous advantages provided for under the monarch system. These advantages included provision of security among other social amenities. Parliament later assumed that responsibility and it was believed that much value would be delivered to the electorates in UK through enactment of improved laws that served the people in a better way. Such is the argument held by scholars who state that the parliamentary system provides more advantages than the monarch system, and that is the reason it is still in existence (Schmitthoff 1973). Therefore, many argue that that is the essence of democracy, where we have many smaller statutes being ratified on a daily basis while having a parliamentary system where new leaders are voted in every five or so years to try and introduce different aspects of governance. Individuals within member states of international bodies have come to appreciate, with time that joining such organizations brings numerous benefits. Not only are these benefits seen within the EU, but also international bodies such as the UN, NATO, AU and numerous other bodies. Combining all the benefits that member states get to enjoy under this bodies, it is wise to conclude that membership provides added benefits than withdrawing from these bodies. Passing sovereignty to bodies’ superior than domestic institutions such as the parliament is a natural advancement in the evolution of the society. Conclusion UKs resolve to join the European Community has resulted in great reform. This is because the UKs government and the Parliament must work hand in hand to legislate and ratify laws that do not contradict the European Community Laws. In addition, the already existing UK Laws have to be analysed and amended to adapt to the European Community Laws. The UKs government need also to make certain that European Community Laws are transferred and implemented correctly. This exerts great pressures on the UKs courts while in the process of making their rulings. As a result, this ridicules the UKs courts, as any issue that needs the incorporation of the EU laws are only considerable through a method that is purposive to meet the EU commands. It translates to lack of preservation of the UKs sovereignty as earlier thought. The place of the doctrine of the parliamentary sovereignty in Britain has practically been altered after assenting to the EU. Even though other added changes in the original Treaties and assimilation procedures unquestionably have practically tied the doctrine of Parliamentary sovereignty to a bigger level. It is difficult to argue about the issue of withdrawing from the European Community and the UKs Parliament authority to act freely especially in making decisions if the, country should remain in the EU or not. It is correct that the UK parliament, in reality, is not supreme and is not at liberty to do all that it wants, without consequences. However, as argued by Sir Jennings (1959), the omnipotence of the UK parliament is a legal narrative, and it has no ability to amend natures course or act without responsibility. The amendments associated with the European Community amalgamation and the process of globalization, which affected the political, and constitutional frameworks of UK simply affirm Sir Jennings claim. Bibliography Crowe, R. (2008). The Treaty of Lisbon: A Revised Legal Framework for the Organisation and Functioning of the European Union. ERA Forum, 9(2), pp.163-208. Dicey, A. (1959). Introduction to the study of the law of the constitution. London: Macmillan. Gifford, C. (2009). The UK and the European Union: Dimensions of Sovereignty and the Problem of Eurosceptic Britishness. Parliamentary Affairs, 63(2), pp.321-338. Jennings, I. (1959). Cabinet government. Cambridge [England]: University Press. McGarry, J. (2012). The principle of parliamentary sovereignty. Legal Studies, 32(4), pp.577-599. Polak, J. (2011). The Lisbon Treaty: A Legal and Political Analysis - By J.-C. Piris. JCMS: Journal of Common Market Studies, 49(4), pp.920 Schmitthoff, C. (1973). The effects of the accession of the United Kingdom to the European communities on law teaching in England*. The Law Teacher, 7(2), pp.65-72. Taylor, P. (1991). British Sovereignty and the European Community: What is at Risk?. Millennium - Journal of International Studies, 20(1), pp.73-80. Trindade, F. (1972). Parliamentary Sovereignty and the Primacy of European Community Law. The Modern Law Review, 35(4), pp.375-402. Read More