How Important Is Parliamentary Sovereignty in the United Kingdom - Coursework Example

Critically analyse this ment "Parliamentary sovereignty is a principle of the United Kingdom constitution. It makes Parliament the supreme legal authority in the United Kingdom ., which can create or end any law. Generally, the courts cannot overrule its legislation and no parliament can pass laws that future parliament cannot change. Parliamentary sovereignty is the most important part of the United Kingdom constitution". Abstract This paper considers how important parliamentary sovereignity is in the United Kingdom looks at how this has developed, but also at how, in comparatively recent times, that same parliament has given away , or had taken from it, at least some of its powers within the United Kingdom and the reasons for this. Introduction The above quotation is from the web site of the United Kingdom Parliament so perhaps the statement is not as objective as it might be. So is it true? It certainly wasn’t always so. Parliamentary democracy as we have it in the 21st century was a gradual development over many hundreds of years from the time of absolute sovereign power to the present situation where the sovereign gives her assent to decrees already decided. A.V. Dicey has described parliamentary sovereignty as:- The dominant characteristic of our political institutions…. The very keystone of the law of the constitution1. History of parliamentary sovereignity. Such a state could be described as a natural development according to the needs of the sovereign and the people at various times through history. Its ancestor is the Anglo-Saxon Witan. At that time this only met when the king wanted it to in order to discuss various matters. Only those he personally invited would attend as described on the web page of the United Kingdom parliament under the heading Birth of the English Parliament.2 The Witan gave advice, but the king did not necessarily have to take it. It did not devise laws, but enabled the laws devised by the king to be enacted. In balance the king knew that he needed powerful support and money obtained by taxation, so wanted these men on his side. In Norman times the kings had advisers, but also called together the Great Council, the precursor of the present House of Lords. Also each county had a meeting or moot with representatives sent from each village. Later known as the County Court this introduced the idea of local people with local representation. These two would later come together as Parliament ( a place to speak) – the House of Lords and the House of Commons, although the term was first used in 1236 to describe a meeting between the king and his nobles and prelates. In the seventh century Charles Ist believed in the God given right of kings to rule as he wanted, but this caused tension with parliament. The politicians passed a law forbidding the king to raise taxes without their permission – something they were not prepared to do. The Civil War ensued.3 However when Cromwell died and the war was over the status quo was more or less restored when the new king, Charles II returned to the throne. He was eventually succeeded by his younger brother. James II, however welcomed he was in the first instance, only ruled for 4 years. At the time it was debated whether he actually abdicated or was ‘temporarily’ away from the throne and there was a need for a regency to be established. Another version is that he was deposed i.e. forced to give up the throne. The king was overcome by an army consisting of parliamentarians together with a Dutch army lead by William of Orange. The aim was to subjugate the monarch’s power under popular control Whichever way it was in February 1689 Parliament at last decided that he had abdicated and soon afterwards the throne was offered jointly to Princess Mary and her husband William of Orange, as described on the Living Heritage web page4.However when the offer of the crown was made formally this was accompanied by a statement regarding the rights of individuals and especially the rights of parliament, including the freedom to meet often and to say what they wanted, rights it was felt had not been possible under the Stuart monarchs. At their coronation the new monarchs swore to govern in accordance with "the statutes in Parliament agreed on" instead of, as in earlier times "the laws and customs ... granted by the Kings of England".5. Parliamentarians of the time felt that the king’s power as it had been held previously was a threat to liberty.. According to Dicey6 the result was that parliament had :- The right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament. In December of the same year, 1689, these rights became an act of parliament. Things have progressed. On the 11th October 2010 Lord Taylor of Holbeach was able to say that he was speaking in a:- Constitutional context which recognises the primacy of the elected House of Commons. That is the cornerstone of this countrys parliamentary system.7i According to Pier Ferdinando Casini in 20068 parliament should be “representative, transparent, accessible, accountable and effective” While it does not always achieve all these aims all of the time, this at least is a possible standard to be aimed at. Speakers from various parliaments around the world traveled to the United Nations where they declared that:- Parliament is the central institution through which the will of the people is expressed, laws are passed and government is held to account.9 The judiciary however also feel that they have rights to oppose what they see as wrong decisions by the government. For instance when the then Home Secretary Michael Howard sent the killers of Jamie Bulger to jail for an unspecified period the courts agreed that this was illegal and said that a specified period must be given.10 Also the trial was declared to be illegal by the European Court of Human Rights, as the two accused were treated as if they were adults and tried in an adult court.11 The Human Rights Convention sets out to guarantee a fair trial before a court that both impartial and independent. They ruled that it wasn’t fair to try children in an adult court and, as Home Secretary, Mr Howard was obviously not independent, but controlled by his link with the government. The families of the boys concerned however did not press for the trial verdict to be overturned, only the length of the sentence. Does the United Kingdom parliament have absolute sovereignty? In recent years Parliament has passed a number of laws that place limits upon its own sovereignty. Yet according to Goldsworthy in 1999 ‘there are no fundamental constitutional laws that parliament cannot change, other than the law of parliamentary sovereignty itself.12’ According to Tom Ginsberg writing in ‘Judicial Review in New Democracies’ 200313 under the heading ‘The Decline and Fall of Parliamentary Sovereignty’14says:- The superior position of the popularly elected legislature and its corollary of majority rule have been central principles for democratic revolutionaries since the notion was appended to the unwritten English constitution. The present laws then came about in order to fit in with political developments and desires both in the United Kingdom as well as overseas. These include the Scottish Parliament which came into being as a result of the Scotland Act 1998 – the first such parliament north of the border since 1707 and the Act of Union. The Welsh Assembly ( Cynulliad Cenedlaethol Cymru) which has the right to make legislation in Wales was founded in 1998 by the Government of Wales Act following a Welsh referendum in 1997 . Sovereignty is also affected by the fact that the United Kingdom agreed to the Human Rights Act of 199815This legislation was concerned with the rights and freedoms guaranteed to individuals by the European Convention on Human Rights16 and can be linked to the United Kingdom’s entry into the European Union in 1972. Most recently in October 2009 Parliament decided to establish a Supreme Court. This ended the long held judicial rights of the House of Lords to act as a final court of appeal within the land. The court will hear both civil and criminal cases as well as hearing cases on possibly arguable points of law which affect the whole country17. Despite all such changes Parliament has not in fact totally given up its sovereignty in these areas as, in theory at least, parliament can pass new laws which rescind the changes described. Parliament also retains the power, using its own parliamentary processes, of amending its own laws. As regards to European laws however it can be argued that section 44 of the United Kingdom Terrorism Act 2000 18, which allows the police to stop and search anyone in specified areas without necessarily having suspicions against them, is in violation of Article 8 of the European Convention on Human Rights. The Act however was never effective. A report in the Telegraph of 28th October 201019 states that of people searched arrests were only made in one in 200 cases and no one was arrested as a terrorist. In January 201020 the BBC had carried a story telling how the European Court in Strasbourg had ruled that the use of this law was illegal according to the Article. They felt that there were not enough legal safeguards to prevent misuse. This decision overturned an earlier ruling by the High Court in 2003, and later upheld by both the Court of Appeal and the House of Lords, that using stop and search powers, and violation of human rights in consequence, was considered to be proportionate according to the European Convention on Human Rights and was justified because of a perceived terrorism threat. It should be pointed out however that Lord Howell of Guildford21stated on the 6th October 2010 that:- EU law has effect in this country solely because Parliament wills that it should through the 1972 European Communities Act. The Next Step Christopher Chope has placed before parliament a private member’s bill with the title ‘United Kingdom Parliamentary Sovereignty Bill 2010-11’22.The bill had its first reading on the 5th July 2010. It was not debated at that time and will have a second reading in March 2011. Although the full text is not easily available at present it is described as ‘A Bill to reaffirm the sovereignty of the United Kingdom Parliament; and for connected purposes.’ Presumably Mr Chope felt, when this bill was being drawn up, that there was a need for such sovereignty to be affirmed. Conclusion Although parliamentary sovereignty remains an important part of political life in the United Kingdom as has been described above it is not absolute. It can be overturned for what is perceived as the greater good, as it was by the European Parliament. It seems obvious to say that a parliamentary democracy seems a fairer way of conducting matters than if government is in the hands of only one person or tiny elite. However the system is not perfect. Even today in 2010 the papers are full of the individual misdeeds of various members guilty of corrupting the systems agreed Consider also the fact that often governments get into power even when the majority of people voted against them, preferring the policies of a number of other parties, as happened when Tony Blair was first elected. His party had a majority of 179 seats, which means that the opposition would be very unlikely to be able get any of its proposals passed as laws. The election had a low turn out of only 71.2 % and Labour obtained only 43.2% of the votes cast, although Mr Blair did obtain a personal majority in his northern constituency of Sedgefield. Also there is the system of whips who try to ensure that members toe the party line rather than necessarily voting as they would prefer to do. Taken together this means that the views, in some cases of the majority, of voters, are ignored, or at best considered and rejected. Modern day parliament in the United Kingdom is not a perfect system, but it is at least better than some of the earlier alternatives. As Lord Inglewood23 said on the 12th of October 2010 ‘Representative parliamentary democracy and the supremacy of Parliament, however foxed they may appear, are nevertheless very important.’ On the 6th of October 201 Lord Howell made the following statement24:- The Government would examine the case for a United Kingdom Sovereignty Bill affirming that ultimate authority remains with Parliament. The common law is already clear on this. Parliament is sovereign.  EU law has effect in the UK because - and solely because - Parliament wills that it should. Parliament chose to pass the European Communities Act 1972.  That was the act of a sovereign Parliament. He went on to explain how the Government had explored ways to ensure that this basic principle of Parliamentary sovereignty be upheld with regard to European Union law. It was felt the principle was already protected by common law, but, in order to avoid speculation, it has been decided to put the matter into legislation. So once again parliament will protect the rights of parliament. It is to be hoped that as they so they also protect the rights of those who vote them, into such a position of power. 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