Parliamentary Sovereignty - Essay Example

Parliamentary Sovereignty Jackson and Others v Attorney General challenged the constitutional validity of the Hunting Act 2004. The House of Lords had to decide whether it was a valid Act of Parliament. The Jackson case raised a number of issues, regarding the sovereignty of Parliament. In this case, the House of Lords ruled that Parliament had enacted the 1949 Act, duly following the procedure laid out in the 1911 Act. The Hunting Act 2004 was valid as it had been enacted under the amended procedure. 1 In this case, the court supported the notion that an Act of Parliament could be rescinded, on the grounds of being incompatible with fundamental values. 2 Parliamentary sovereignty is a major feature of the British Constitution. It establishes Parliament as the supreme authority that enacts or rescinds laws. In general, the judiciary is precluded from setting aside the legislation enacted by Parliament. However, a future Parliament can modify a law that was enacted by a previous Parliament.3 Parliament can make or end any law, and after receiving a majority of the votes in the House of Commons, the House of Lords, and finally the Royal Assent, a bill becomes an Act. Essentially, a bill becomes an Act, even if it is passed by a majority of one. Moreover, there is no distinction, in respect of the nature of the law passed by the Parliament, whether it is an ordinary law or a constitutional law.4 This constitutes Parliamentary sovereignty. In the UK, the traditional view is that no court can declare an Act of Parliament invalid. This due to the belief that the courts have to uphold the supremacy of Parliament, under the doctrine of Parliamentary sovereignty. Thus, disregarding a provision in an Act of Parliament by the court was disallowed. This was the ruling in Pickin v British Railways Board.5 According to Dicey, an Act of Parliament is the highest form of law; and the courts cannot invoke natural or divine law to declare an Act of Parliament as unconstitutional. The process involved in enacting a law is independent of whether the matter under consideration is crucial or trivial. Furthermore, no court in the UK can challenge the validity or constitutional legality of an Act passed by Parliament. 6 Thus Parliament enjoys sovereignty; and the UK constitution, does not provide for any mechanism that can declare an Act of Parliament invalid. Subsequent to procuring membership in the European Union (EU), the UK had to render its domestic law subordinate to EU Law. For instance, the House of Lords ruled that an Act of the UK Parliament was in breach of EU law, and declared it to be inapplicable. This was on the basis of the ruling of the European Court of Justice (ECJ) in Factortame II.7 This decision required the UK to incorporate the provisions of EU Law into its domestic law. As such, Parliamentary sovereignty has been rendered subservient to EC Law. Furthermore, the Human Rights Act 19988 of the UK ostensibly, incorporated the provisions of the European Convention on Human Rights (ECHR)9 into the domestic law of the UK. This piece of legislation empowered the national courts to review Acts of Parliament and administrative procedures, in order to ensure that they were compatible with the ECHR rights.10 Even in the past, the doctrine of Parliamentary sovereignty had not been enforced rigidly. There were several judges in the 17th century, who had inquired, whether the courts were required to obey the Parliamentary enactments. In one case, Chief Justice Coke opined that the common law exercised significant influence over the Acts of Parliament, and that it was capable of declaring them as void, if they were found to be in breach of common rights and were bereft of reason.11 England does not have a codified constitution, and there were several initiatives to adopt a written constitution. However, a strong belief in the doctrine of Parliamentary Sovereignty, as established by Dicey, restricted UK to the principle of parliamentary sovereignty, instead of engendering a written constitution.12 In 1998, the UK enacted the HRA, which ostensibly incorporated the provisions of the ECHR. However, the HRA incorporated a number of constructs, which effectively prevented the entrenchment of rights in the UK.13 Nevertheless, the HRA introduced several reforms to the UK’s legal system, such as a system of statutory protection of rights and anti – discriminatory measures. Moreover, the HRA empowers the courts to review Acts of Parliament and make recommendations to Parliament, if these are found to be in breach of human rights.14 Parliament is required to modify such conflicting statutes and accommodate the principles and rights of the ECHR. Furthermore, Section 3(1) of the HRA 1998 imposes an additional responsibility upon the national courts. Essentially, it requires the national courts to interpret the provisions of domestic law in a manner that is compatible with the Convention rights. The national courts are under an interpretative obligation, which enables them to provide a compatible interpretation to domestic legislation. Such interpretation can on occasion appear to be apparently different from the intention of Parliament at the time of its enactment.15 However, the reforms introduced by the HRA did not result in any change in the legal system, and they also failed to transform it into a constitutional system. Despite, enactment of the HRA and membership of the EU, Parliamentary supremacy is in vogue in the UK.16 Thus, the protection of rights is via statute and not the constitution. The UK Parliament enacted the HRA as an ordinary legislation; hence, it can be amended easily without having to adopt any special procedure. Moreover, it came into effect in the year 2000, despite being enacted in 1998. This clearly indicates that the HRA was not enacted to transform the existing legal system. The Joint Committee on Human Rights was empowered to review the existing domestic law, in order to determine its compatibility with the HRA.17 This indicates that the government did not intend to place the HRA under the scrutiny of the courts. The ruling in the Factortame case had a significant effect on the doctrine of parliamentary sovereignty. The House of Lords had categorically declared that the Factortame 2 decision was in favour of the applicants, which in turn would prevent the application of the 1988 Act.18 The Prime Minister Margaret Thatcher condemned this decision on the grounds that it was in breach of the ideal of national sovereignty. She also expressed concerns over the loss caused to national sovereignty.19 Furthermore, Baroness Thatcher contended that with this decision, the ECJ had compromised the sovereignty of the UK Parliament. Such criticism of an institution of the EU was considered by the Law Lords to be ill advised, as the UK Parliament had at the time of procuring membership of the EU, voluntarily curtailed its sovereignty. The ECA 1972 had required the national courts to give precedence to EC law and to incorporate EC Law into national legislation.20 Thus, the Factortame 2 decision was nothing new. As such, the House of Lords decision had a profound effect on the sovereignty of Parliament. Moreover, in Thoburn v Sunderland City Council, the House of Lords held that the European Communities Act 1972 had a serious impact on the doctrine of Parliamentary sovereignty.21 This Act harmonised the UK’s domestic laws with the EU Law. The House of Lords stated that it could not avoid the application of the EC Act 1972, which was a constitutional statute at the common law.22 Thus, the House of Lords held that the common law created the constitutional grounds for the application of the EC Act. Furthermore, the House of Lords stressed upon the notion of constitutional statute in the case of Robinson v Secretary of State for Northern Ireland. In this case, the Law Lords stated that the Northern Ireland Act 1998 was the constitution for Northern Ireland.23 The common law constitutionalism, though a relatively new concept, is often employed by the courts.24 This concept views the constitution as being comprised of a number of fundamental values, such as human rights, the spirit of democracy, and the rule of law. It opposes the orthodox view of the constitution. There are a number of decisions based on this concept. The courts have upheld this doctrine and declared that fundamental rights cannot be compromised, in the absence of the clearest expression of such intent by the Parliament.25 The European Communities Act 1972 requires the Parliament to enact laws that are compliant with the Community Law. Under the provisions of Section 2(1) of the Act, Parliament is practically precluded from enacting legislation that is in conflict with Community Law. This section also requires Parliament to give effect to the Treaties of the Community, in its legislation. Thus, Parliament has to recognise EC Law and implement it. For example, in Ghaidan v Godin-Mendoza, the House of Lords ruled that homosexuals had tenancy rights on par with heterosexual couples, if they were in a long term relationship.26 This judgment demonstrated the fact that judges could make laws. The supremacy of EC law has a significant effect on the national courts, since it empowers them to overrule national legislation. This was experienced by the UK Courts in the Factortame case. In this case, the Courts were bestowed upon with the power to restrict the Crown, so as to apply EC law.27 This set in motion a new trend in UK law. All the same, the decision in cases, such as Costa v ENEL and Van Gend en Loos,28 proves the supremacy of the decision given by the European Court of Justice. It is evident from the decision of the House of Lords in Jackson, that legislation passed under Parliamentary Acts, do not constitute delegated legislation. Such laws enjoy the same status as legislation passed in the normal course.29 Although, it is well within the powers of Parliament, to annul Parliamentary Acts, the decision in Jackson makes it clear that legislation passed according to an Act of Parliament, is as good as any other statute made by Parliament. Despite the fact that this case raises many issues, relating to Parliamentary sovereignty, the fact remains that any legislation that is incompatible with fundamental values will be set aside by the courts. Bibliography Cases: Case 6 – 64 Flaminio Costa v ENEL [1964] ECR 585 Case 26 – 62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1 Case C – 221/89 The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others [1991] 3 All ER 769 C-213/89 R v Secretary of State for Transport, ex. P. Factortame Ltd (N0.2) [1990] ECR 1-2433 Ghaidan v Godin-Mendoza [2004] UKHL 30 Jackson v Attorney General [2005] UKHL 56 Pickin v British Railways Board [1974] HL Robinson v Secretary of State for Northern Ireland & Ors [2002] UKHL 32 R v Secretary of State for the Home Department ex p Leech (1994) QB 198 Thoburn v Sunderland City Council (2002) EWHC 195 Legislation: European Communities Act 1972 Human Rights Act 1998 Hunting Act 2004 Merchant Shipping Act 1988 Northern Ireland Act 1998 Parliament Act 1949 Parliament Act 1911 The Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Books: Loveland I, Constitutional law, administrative law, and human rights: a critical introduction (5th edn, OUP 2009) 24 Journal Articles: Loveland I, ‘Parliamentary sovereignty and the European Community: the unfinished revolution?’ (1996) 49(4) Parliamentary Affairs 517, 517 Lord Irvine of Lairg, ‘Sovereignty in Comparative Perspective: Constitutionalism in Britain and America’(2001) 76 New York University Law Review 1, 3 Liviatan O, ‘Article: The Impact of Alternative Constitutional Regimes on Religious Freedom in Canada and England’ (2009) 32 Boston College International and Comparative Law Review 45, 46 Other sources: Domestic Sources of Law: Parliamentary Material accessed 15 December 2010 Judgments – Jackson and others (appellants) v. Her Majesty’s Attorney General (Respondents) accessed 15 December 2010 ‘Parliamentary Sovereignty’ accessed 7 December 2010 Ginsburg T, ‘The Decline and Fall of Parliamentary Sovereignty’ accessed 10 December 2010 Read More