Is Parliamentary Sovereignty Still Applicable Today As It Was Previously - Essay Example

Is Parliamentary Sovereignty Still Applicable Today As It Was Previously? There has been a debate in the United Kingdom for a long time because of the idea of parliamentary sovereignty and whether it is still applicable today as it was previously. This debate has been going on since the time when the monarchy and the government in general were placed under the control of parliament and when true democracy started to be practiced in Britain. The debate had been based mainly on whether parliament has the supremacy when it comes to making legislation for the state or whether it is only one of the agencies through which legislation is made (Lakin 709). For those who believe in parliamentary sovereignty, parliament has absolute power which is unlimited by any other arm of government and because of this supremacy, all the legislation passed by it cannot be challenged by any other authority. In fact, it has at times been stated that parliament is not limited in what laws it can pass and that all of those that are passed are binding to all the people within its jurisdiction. While in other countries which have the parliamentary system, the actions of parliament are restricted by written constitutions that govern how these parliaments can act, in Britain; this is not the case because there is no written constitution to provide the guidelines. Many have used this to justify the belief that parliament remains as supreme as it was a century ago and this is mainly because it is the one which can make its own guidelines towards its conduct. There has been some debate concerning whether parliament is independent of the other organs of state or whether it is supreme to them. Some writers have stated that parliamentary sovereignty is equivalent to the sovereignty of the state and that the two are the same thing (Newman 175). This idea has been hotly contested because of the opposing belief that parliament is just one of the organs of state and that although it has sovereignty in its own right; it is not supreme to the other organs. In fact, it is stated that the role of parliament it strictly restricted to the role of passing legislation and that it does not have the right to interfere in the functions of the other arms or organs of government. When considering the legislative powers attributed to the British parliament, it is difficult to define the extent to which these powers go and whether they can be limited or not. What can be best described is the fact that the lower house, or the House of Commons, has supremacy in almost all legislative activity in parliament. However, this does not mean that all legislation is passed solely by this house, because most of the legislation tends to be passed through cooperation between both houses of parliament (Packman 1229). Therefore, it can be said that in the United Kingdom, it is the joint power of the houses of parliament that guarantee their sovereignty and none of them can act securely without the support of the other. This creates a balance between them despite the fact that the upper house has lesser power than the lower one. While one would say that parliament today has lost some of the powers it previously had, its sovereignty is still the principle that guides the constitution of the United Kingdom. Every action taken by the state or any of the institutions under it are guided by the acts of parliament, which provide the guidelines that make up the constitution of the United Kingdom and without them; this state would be absolute chaos. This has therefore come to guarantee parliamentary supremacy in Britain with the power to either make or abolish laws as it sees fit for the benefit of the nation. This supremacy has ensured that no courts in the land have the power to overrule any of its decisions, as is the case in other parliamentary states where the Supreme Court can do so. Instead, the sole purpose of these courts is to interpret, in the best way they can the laws that have been passed by parliament. However, one of the checks to the British parliament that is still in place is the fact that no parliament can bind any of its successors with any laws it currently passes. Instead, the parliaments that succeed the current one have the power to modify or abolish the legislations passed by their predecessors. This function to ensure that parliament retains its supremacy at all times and that it is not bound by the actions of its predecessors when attempting to carry out its duties. This provides parliament with the opportunity to correct the mistakes of previous parliaments as well as ensuring that it has the chance to evolve alongside the needs of the society. The idea of parliamentary supremacy in Britain is still extraordinarily strong among some jurists who believe that it has unlimited power. In fact, it has been stated that the power of parliament in the making of laws is uncontrollable and cannot be challenged by any other authority in Britain. It is the only institution whose powers cannot be changed and whose authority has remained supreme since the time of the Glorious Revolution. The long established tradition of parliamentary supremacy cannot be shaken and this has helped to maintain its status in Britain to the present. Parliament still has supremacy over all the aspects of administration in which the government of the United Kingdom is involved (Green). Among these are matters concerning religion, the civil service, all matters to do with the military and all the civil and criminal legislations. This means that the supremacy of parliament, at present, is assured and this will probably remain the case for a long time to come. This is because of the continued belief that parliament has the ability to do everything that is naturally possible in the interests of Britain. This has not only increased its popularity among the British populace, but it has also created an environment where there is confidence in the stability of the state (Flinders 23). The issue of parliamentary sovereignty is still yet to be solved in some parts of the United Kingdom and an example of this would be in Scotland where some judicial scholars believe that the idea of parliamentary supremacy is an English idea, and not necessarily Scottish. This is because when the Act of Union was enacted, the English and Scottish parliaments were abolished to be replaced by a new one. However, some believe that the English parliament’s role was expanded to encompass the other states that formed the United Kingdom. Thus the other states, most especially Scotland, were not given a say in the making of the procedures that were to guide the activities of parliament from then on (Murdoch 14). These scholars believe that since there was no consultation in the matter, then the idea of parliamentary supremacy is only applicable in England and not in Scotland, Wales, or Northern Ireland. This means that although in theory, parliament is supreme in the whole of Britain, in practice; however, this has yet to be resolved. To add to this confusion has been the inability or reluctance of parliament to pass any laws to define the extent of its own sovereignty and this has meant that the idea of parliamentary supremacy has largely remained vague. In certain places, such as in Scotland, the power of parliament is still quite limited in certain areas especially when one considers the preconditions that were demanded by the Scots before a unified parliament was created. Since Scotland had its own legal system and was dominated more by the Presbyterian faith than by other denominations, it was only logical that its representatives ensured that these were fiercely protected against encroachment by the dominant English system. Therefore, promises were extracted before a new parliament was set up and these ensured that any future parliament would not have the power to break any of the promises made (Ford 106). Parliamentary supremacy is therefore limited to an extent in the areas outside England and this has helped undermine its sovereignty to this day. Despite the fact that parliamentary power is still supreme in the United Kingdom, this power has over the years come to be eroded by its own acts as it has willingly given up some of this power. An example of some of the powers that it gave up was in matters concerning the Church of Scotland. This came about when in 1921, through its acts; parliament gave the Church of Scotland absolute independence in the government of all matters that were ecclesiastical in nature. In recent times, the power of parliament has come to be further eroded through the membership of the United Kingdom in the European Union (Kellerman 1). This is mainly because this union has the power to make legislation that it obliges all its member states to implement within their own judicial systems. This has ensured that the supremacy of parliament within the United Kingdom has become increasingly undermined, as it has lost the complete independence it once had over all the legislation that was made and implemented within the state. In addition, the European Court of Justice ruled that the courts in Britain had the power to overrule any legislation made by parliament, which they considered to be in contravention of European laws. One of the acts of parliament which have contributed a great deal in the erosion of parliamentary power in the United Kingdom is the Human Rights Act of 1998 (Wagner). This is an act of Parliament, whose main aim is to ensure that it gives further force the laws concerning human rights, contained in the European Convention. It gives the courts in the United Kingdom the power to deal with those issues that might cause the citizens of this country to go to the European Court of Human Rights (McGoldrick, 901). The act makes it illegal for all public bodies to take any actions or decisions that are in contravention to the European Convention on Human Rights. The only exception to this is Parliament, because it has the legislative capacity in the United Kingdom, and should remain sovereign. This Act requires all the courts in the United Kingdom to take into account the decisions that have been made by the court at Strasbourg, as well as to interpret the legislation of Parliament, so that their decisions can be as far as possible in compatibility with the Convention on Human Rights. It is, however, impossible to interpret an Act of Parliament to make it compatible with the provisions of the Convention, because courts are not allowed to override such acts (Kavanagh, 179). Instead, all these courts are allowed to do is to issue a declaration of incompatibility so that the validity of a Parliamentary Act is not affected. One of the reasons why this Act does not affect Parliamentary Acts is because one of its aims is to ensure that the sovereignty of Parliament is maintained in the United Kingdom, because it is the supreme legislative body (Feldman, 8). However, the Act still gives individuals the option of taking their cases to the court of Strasbourg if they feel that they are not satisfied by the decisions of the local courts. The membership of the United Kingdom in the European Union has ensured that some of the legislative responsibilities, which were the sole domain of parliament, have been ceded to the government. Among these responsibilities are those dealing with legislation that is in contravention to the European Convention. This is especially true when it comes to those public officials who are found to be in contravention while attempting to implement acts of parliament. It is envisaged that the latter will be a standard, which is difficult to meet because the courts are still required to read the legislation related to the contravention in compatibility with the Convention. If the courts find it impossible to read the legislation in a manner that is compliant to the Convention, then the only option that the Act leaves them is to make a declaration of incompatibility in relation to this legislation. However, the power to make such a declaration is reserved only for the higher courts. A declaration of incompatibility tends not to have an impact on the strength and usage of the legislation involved. Instead, such declarations more often than not ensure that the public puts pressure on the government so that it can make sure that the incompatibility with the Convention is removed (Young, A, 89). A declaration of incompatibility also strengthens the case of a person, where such a decision is made, and it helps them a great deal when appealing to the court at Strasbourg. The act allows ministers in the United Kingdom to take actions meant to remedy legislation, which are in contravention using subordinate legislation (Brammer, 33). This is normally meant to ensure the swift compliance of such legislation with the Convention without necessarily going through Parliament. There have been changes in the British state over the past few decades and some of these have been brought about through acts of parliament. Among these changes is the creation of devolved parliaments by parliament which have legislative authority over such places as Scotland and Wales ("Britain: The Dangers of Devolution" 66). Although parliament still has power in those areas that are under the jurisdiction of the devolved parliaments, it does not take any action without the agreement of the local legislatures that it may act on their behalf. In these cases, parliament has willingly conceded power to the local parliaments but it also has the power to unmake these concessions and dissolve them. However, despite having these powers, it would not be willing do undertake such drastic measures because to do so would be to create chaos in the devolved system, which is currently just beginning to take root. It can therefore be said that although parliament currently has a wide range of powers, at least in theory, it does not arbitrarily use these powers because of the traditions that it has set itself. The other act of parliament that led to a reduction in the power of parliament and it sovereignty was the decision to create a supreme court in Britain. The creation of a supreme court meant that parliament (or more specifically, the House of Lords) was no longer the final court of appeal in the United Kingdom ("Britain: Cheap at the Price; the Supreme Court" 40). Instead, these duties were transferred to the new court, ensuring that parliament lost the power, which was among its greatest privileges. It freed the judiciary from being under the direct supervision of parliament through the creation of a body that would deal with all judicial matters. While some would say that this was an inevitable development, one would conclude that the creation of the Supreme Court was an aspect of the erosion of parliamentary sovereignty. In fact, it can be said that if this trend continues, then parliament will go the way of the monarchy, having a broad range of powers in theory but lacking in the will and authority to use it (Craig 167). There has been some speculation by certain scholars that the creation of a supreme court in Britain was done in a bid to undermine the power of parliament and that the aim of doing so was in order to promote judicial supremacy over parliamentary supremacy (Orsolic and Goldsworthy 337). While this may be the case, it is still a fact that parliament is still supreme in Britain since it is only through the legislation it passes that any the judiciary is able to function. Parliament is still the supreme lawmaker of the land and this is the reason why its sovereignty is guaranteed. It has the power to make, repeal any law as it deems fit, and any other institution other than itself does not check its power. For this reason, it is fair to say that despite what can be considered the erosion of its authority, parliament still reigns supreme in the United Kingdom because future parliaments can always repeal any of the ACTs that have contributed to this erosion. It is therefore safe to say that parliamentary supremacy in Britain is still the norm and that it has not changed seriously since Dicey’s time. In fact, the power of parliament has expanded and not reduced as some may think. The acts of parliament that seem to be eroding its power are actually a manifestation of its supremacy. In conclusion, there have been changes in the way in which parliamentary sovereignty is interpreted over the last century. Despite these differences in interpretation, one exception that stands out is the fact that parliament remains the cornerstone upon which the government and judiciary of the United Kingdom is based. Without parliament, then the governmental system of this state would collapse since it is parliament, which has been and remains the custodian of the legal system, upon which the government is able to function effectively. While there have been fears in some circles that parliamentary supremacy is being eroded through Britain’s membership in the European Union, there has been a failure to consider the fact that future parliaments are not bound by the acts of their predecessors and that any legislation that threatens its supremacy can always be repealed in future. The supremacy of parliament is an evolving process as parliament is continuously taking on new roles to suit the environment within which it finds itself. While this evolution is taking place, what can be noted is that parliament is still supreme and that there is yet to be any significant challenge to its authority over all matters of state. It is because of this that despite the fear for its loss of sovereignty within Britain, a majority still has confidence in its power and ability to maintain its ancient rights and privileges. It can therefore be said that parliament shall remain supreme in Britain for the foreseeable future and its role is not likely to radically change. References Brammer, Alison. "Human Rights Act 1998: Developments." The Journal of Adult Protection 5.4 (2003): 33-7.  Web. 12 Jan. 2013 "Britain: Cheap at the Price; the Supreme Court." The Economist Oct 02 2010: 40. Web. 12 Jan. 2013. "Britain: The Dangers of Devolution." The Economist Feb 26 2000: 65-6. 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