Restraints to Parliamentary Sovereignty - Term Paper Example

Restraints to Parliamentary Sovereignty Introduction The concept of parliamentary sovereignty has come under discussion because of various emerging internal and external influences. One of the most dynamic changes is the increasingly integrated nature of the political, financial and economic systems in the European Union. The United Kingdom is an important member of the European Union. However, as recent reports inform, it is considering a revision in the nature of engagement with the European Union. One reason for the desire to maintain a distance from the continuously integrating transnational organization can be explained in terms of parliamentary sovereignty. The concept of parliamentary sovereignty protects parliament from any interference or review of its enactments by the judiciary or any other body. Deepened integration with the European Union would require the United Kingdom to give primary importance to EU laws over local legislation, something that makes the British parliament uncomfortable. At the same time, there has been criticism of the absence of any authority to review the enactments of the British parliament to ensure that civil rights and equity are not compromised. This paper critically analyzes the diverse arguments made with reference to parliamentary oversight and comments on how for parliament is free to legislate as it wishes compared to the past. Features of Parliamentary Sovereignty The emergence of the concept of parliamentary sovereignty has been described as a necessity of a unique British political context in the early part of the twentieth century. The absolute power of the parliament recognized by this notion was meant to lend stability and credibility to the parliament (Saunders and Dziedzic, 2013). The authors explain that the traditional idea of parliamentary sovereignty articulated by A. V. Dicey was not intended to condone or protect any oppressive laws made by parliament. In fact, the idea was proposed on the assumption that a number of internal and external checks would automatically prevent the parliament from misusing its power and develop laws contrary to the interests of public opinion and wishes. Another assumption made by Dicey was that the legislative superiority of the parliament was akin to rule of law. Hence, through this assumption, the traditional concept of parliamentary sovereignty precludes any oversight role for the judiciary, which is a common feature in other countries such as the United States. Fabbrini (2014) explains the reason for the difference between the powers allowed to the parliament in the United Kingdom and other European countries. In the United Kingdom, the parliament enjoys legal sovereignty over the legislative process whereas in other European nations, there is some form of oversight to keep the powers of the legislative organ in check. Fabbrini (2014) explains that this difference reflects the political history of the region. One of the reasons why parliamentary sovereignty has been tolerated longer in the United Kingdom than across most of Europe is because the UK did not experience oppression of civil rights under a totalitarian regime. Unlike other European countries such as Germany and Italy, the United Kingdom has had a longer parliamentary experience. Saunders and Dziedzic (2013) explain that at the time the notion was articulated it had intuitive appeal and became widely accepted. In the light of the peculiar British tradition, parliamentary sovereignty and freedom from judicial oversight made logical sense because it reflected trust in the ability of the institution to protect civic liberties and keep absolutist tendencies in check. The confluence of the Houses of Commons and Lords and the British monarch would serve to keep in check any misuse of legislative powers. Resilience of Parliamentary Sovereignty Carroll (2007) discusses the distinction between legal and political sovereignty of parliament and upholds the view that parliament still has the legal sovereignty to make laws at will. In fact, parliamentary sovereignty enables the parliament to make retrospective as well as prospective laws. However, Carroll (2007) notes that this sovereignty is also being influenced by the European Convention on Human Rights because of the potential of the sovereignty to enact retrospective legislation to encroach upon human rights. In addition to this limit on political sovereignty, Carroll (2007) discusses other sources of influence that can limit and restrict the political sovereignty of parliament. Although these sources may not directly affect the legislative process, these influences stem from the wells of popular sovereignty. Since 2001, the UK parliament has been characterized by a coalition government which makes it difficult for any single party to enact legislation of its own liking. While the party system imposes certain constraints on the political sovereignty of parliament, the electorate is another potent source of resistance to the implementation of legislation that is oppressive or infringes upon the rule of law. The electorate can voice its discontent and dissent on any proposed legislation. The most commonly used tool for voicing such opinion is the referendum. The manifesto is another source of political resistance to the sovereignty of the parliament. Any party is elected to the parliament on the basis of its manifesto and is expected to enact legislation that is in line with the mandate (Carroll, 2007). Influence of European Integration One of the major developments that have influenced the notion of parliamentary sovereignty is the role of the judiciary in implementing legislation passed by the parliament, especially in the context of the European Convention on Human Rights. The traditional view of parliamentary sovereignty proposed by Dicey upholds that the parliament can make any law that it deems fit and no other institution has the legal authority to negate or invalidate the law. However, as Wagner (2011) explains the influence of transnational agreements and conventions can create more room for the state judiciary to encroach upon the traditional concept of parliamentary sovereignty. Wagner (2011) explains that since the United Kingdom is now part of the European Union and is a signatory to the European Convention of Human Rights, the laws passed by the UK parliament cannot be in contravention of any law included in the European Convention of Human Rights. This can considerably limit the practical implementation of the laws enacted by the parliament. Technically, the parliamentary sovereignty is intact to the extent that the freedom of the parliament to make any law it deems fit is not compromised. This can be termed as the legal sovereignty of parliament. However, in practical terms, the implementation of that legislation can be affected by the role of the judiciary who has been charged with responsibility to ensure that none of the parliamentary legislation is in contravention of the sections of the European Convention of Human Rights. It can thus be argued that the absolute sovereignty of parliament to unchallenged legislative influence is somewhat curtailed. Tabarelli (2013) has discussed the influence of regional integration on the concept of parliamentary sovereignty. Unlike some other democratic countries where the doctrine of separation of powers prevails, the parliament in the United Kingdom is expected to have complete monopoly over the legislative process. Its laws cannot be challenged by the courts or any other reviewing body. However, as Tabarelli (2013) notes, greater integration with the European community since the end of the Second World War has brought about changes in the freedom of the parliament to enact any law it chooses. This has been brought about by the increased power of judges to review and comment on the laws passed by parliament. The power of the judiciary has been increased as a result of the ratification of the European Convention on Human Rights by the United Kingdom. As the UK is part of the European Union, it is bound to accept the laws and conventions that apply to the members of the community. Tabarelli (2013) argues that the power of the local judiciary has been increased because the European Convention on Human Rights requires the judiciary to review local laws and call out areas where these come into conflict with any clause of the European Convention on Human Rights. An interesting thing that Tabarelli (2013) notes is that while such regional integration has increased the legal powers of the judiciary, the lack of commensurate political power and a strong established precedent in support of parliamentary sovereignty have failed to curtail the monopoly of parliament in legislative affairs. The influence of integration with the European Union on the orthodox concept of parliamentary sovereignty has been discussed at length by Elliott (2004). Elliott (2004) discusses the implications of such integration for the primacy of domestic laws enacted by the British parliament. He further explores the reasons why these implications were not identified or addressed earlier at the time the UK joined the European Community. Elliott (2004) explains that the ambition of the European Union is to devise and implement a uniform set of laws and rules for the European community of nations. Therefore, the EU laws will necessarily gain precedence over any domestic legislation. The responsibility of overseeing this process has been entrusted to the judiciary which has considerably expanded the power of the judiciary with respect to the monopoly of parliament. In fact, Elliott (2004) cites the example of the Factortame incident where the House of Lords had to overturn a law enacted by the parliament because it did not comply with the relevant European law. Elliott (2004) explains that the judiciary has been willing, albeit slowly, to assert its new role ascribed to it by the European Parliament. Elliott (2004) argues that while the parliamentary sovereignty has not been reduced or compromised in any meaningful way, the pressure to conform it in the interests of regional integration is increasing. He explains that the British parliament will need to eventually compromise on its absolute power to enable the country to enjoy the benefits of regional integration through the European Union. Influence of Referenda on Parliamentary Sovereignty The influence of referendums on parliamentary sovereignty has also been explored by Qvortrup (2008). The referendum represents the desire and trends of the public as opposed to the will o f the legislature. This might seem odd because the parliament consists of the representatives of the majority of the electorate. Nonetheless, in principle at least, the parliament cannot enact any legislation that has been rejected in a public referendum. Practical examples of such influence also exist. One such example occurred in 2011 when a referendum was conducted on the alternative voting system in the United Kingdom. The purpose of the referendum was to determine whether the current first-past-the-post voting system should be replaced by an alternative vote system. More than 19 million voters participated in this referendum throughout the UK out of which 68% voted against the introduction of the alternative vote system. Therefore, the parliament had to accept the will of the people expressed through the referendum and it could not enact legislation to replace the simple plurality system. This example illustrates how the voice of the public or electorate can be a potent source of resistance to the absolute sovereignty of the parliament. Qvortrup (2008) also mentions other sources of influence on the absolute legal and political sovereignty of the parliament in his article. These include the influence of the Constitution, the power of legislative precedent and the effects of devolution of legislative powers to other legislative bodies. The basic argument is that over the course of evolution, parliament has been ceding sovereignty to accommodate the increased demands on internationalism and democracy. Harris (2011), on the other hand argues that the referenda conducted over the years in the context of devolution of legislative powers in the United Kingdom have served more as an instrument to resolve political tension than influencing parliamentary sovereignty. Because of the controversial nature of devolution of legislative power, governments in various decades have used the referendum as a tool to measure public attitudes and sentiments before enacting legislation. Harris (2011) argues that this explains that the parliament can use the referenda to expedite its own processes rather than using it as a check on the extent of its legislative power. Harris (2011) further argues that the traditional concept of parliamentary sovereignty has been influenced by external sources of popular sovereignty only in the literature. In practical terms, the legal sovereignty of the parliament is still unchallenged although the potential for it to be influenced does exist. At the same time, Hariis (2011) also acknowledges that the referendum imposes a moral pressure on the parliament. As a result of this moral pressure, parliament is expected to legislate in the light of the wishes of the people. However, the parliament retains the legal right to ignore the results of the referendum and make any law that it wants to. On the basis of these views, it appears that the legal and political sovereignty of parliament is still unshaken and public opinion and other sources of influence impose different forms of pressure on the parliament. The legal sovereignty is still unchallenged. Influence of Constitutional Status of Laws Goldsworthy (2010) explains the various arguments made in support and against parliamentary sovereignty. These arguments help to illuminate the manner in which parliamentary sovereignty came to be recognized and the contemporary challenges that have the potential to influence it. The major threat to parliamentary sovereignty is judicial oversight as the other internal and external sources do not have a direct impact on legislation made by parliament. Goldsworthy (2010) explains that the most significant challenge that could constrain the monopoly of parliamentary sovereignty is the possibility of certain laws being granted constitutional status. Up until the present, one of the main factors that facilitated the perpetuation of parliamentary sovereignty has been the fact that the British constitution is unwritten. Coupled with the absence of judicial oversight, this has given considerable flexibility to the legislative process with the parliament enjoying exclusive monopoly over the legislative process. However, the parliamentary process has always assumed an adaptive culture. Goldsworthy (2010) believes that recent developments are likely to ascribe constitutional status to certain laws which might make it difficult even for the parliament to make laws that contravene them. The traditional concept of parliamentary sovereignty has upheld that parliament cannot be bound by past laws and can change them if it wishes. However, the constitutional status of some laws would imply judicial protection which would act as a shield to any attempts by parliament to tamper with them. This is just one of several ways in which the form of parliamentary sovereignty could evolve in future with greater scope for judicial oversight and review. Influence of Administrative Law Lewans (2008) explains how the existence of administrative law defies the traditional concept of sovereignty of the parliament as expressed by Dicey. Dicey believed that the parliament had the exclusive privilege of making laws and no other body or person could invalidate those laws. However, after the growth of administrative bodies in the course of evolutionary politics, the powers of making laws for their own jurisdiction have been transferred to the administrative bodies. Lewans (2008) argues that the principles and ideas of Dicey (2008) cannot be upheld without some modification in the present context of administrative law. Lewans (2008) also laments the lack of research and investigation into the field of administrative law. Lewans (2008) believes that further research in the area of administrative law is essential to determine how administrative law fits into the overall picture of constitutional law. In addition, this could result in the traditional concept of political and legal sovereignty of parliament to be revised to incorporate present political realities. Lewans (2008) explains that Dicey placed too much emphasis on the binary polarity between legislative monopoly of the parliament and judicial oversight. This led him to fail to see what the two held in common. Lewans (2008) argues that a greater understanding of the concept of administrative law can help to expose the false binary opposition and understand how the sovereignty of parliament is influenced by a number of internal and external sources. Conclusion On the basis of the foregoing analysis, it can be concluded that parliamentary sovereignty is a deep-rooted concept in the British parliamentary system. Pride in the country’s political independence and an important leadership position in the world may allow it to resist the pressure of ceding part of the parliamentary sovereignty to transnational as well as local institutions. However, this is likely to become difficult over time as economic pressures make it necessary for nations to integrate their economic and financial systems. Political integration cannot be avoided in the event of financial integration, something the United Kingdom has been trying to achieve for a long time. While the legal sovereignty and sovereignty in principle of parliament may be assured for some time into the future, political sovereignty is increasingly being contested by an increased group of actors who have emerged through transnational integration, local devolution, and globalization. References Carroll, A. (2007). Constitutional and Administrative Law. Pearson Education Limited. Elliott, M. (2004). United Kingdom: Parliamentary sovereignty under pressure. International Journal of Constitutional Law, 2(3), pp. 545-627. Fabbrini, F. (2014). Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective. Oxford University Press. Goldsworthy, J. (2010). Parliamentary Sovereignty: Contemporary Debates. Cambridge University Press. Harris, E. (2011). Redefining parliamentary sovereignty: The example of the devolution referenda. Perspectives on Federalism, 3(3), pp. 94-125. Lewans, M. (2008). Rethinking the Diceyan Dialectic. University of Toronto Law Journal, 58, pp. 75-104. Qvortrup, M. (2008). Referendums in the UK, Political Review, 18(2). Saunders, C., and Dxiedxic, A. (2013). Parliamentary Sovereignty and Written Constitutions in Comparative Perspective. In A. Welikala (ed.), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice. Centre for Policy Alternative. Tabarelli, M. (2013). The influence of the EU and the ECHR of ‘parliamentary sovereignty regimes’: Assessing the impact of European integration of the British and Swedish judiciaries. European Law Journal, 19(3), pp. 340-363. Wagner, A. (2011). Does parliamentary sovereignty still reign supreme? The Guardian. [Online]. Available at: http://www.theguardian.com/law/2011/jan/27/supreme-court-parliamentary-sovereignty. [Accessed 12 July 2014]. Read More