Parliamentary Sovereignty - Coursework Example

?Parliamentary Sovereignty By Word Count (Excluding foot s and bibliography 308 Words. Parliamentary Sovereignty During the 1880s, Oxford Professor A.V. Dicey proposed a theory of Parliamentary sovereignty that encompassed a hierarchal constitutional structure with Parliament reigning supreme. Dicey’s theory of Parliamentary sovereignty has wielded significant influence over definitions and concepts of Parliamentary sovereignty until recently.1 Specifically, Dicey argued that Parliament, elected by and representing the public, had the authority to make and unmake any law.2 Moreover, according to Dicey, the power of Parliament is so absolute that no other body has the authority to “override” an act of Parliament.3 Essentially, Dicey’s theory of Parliamentary sovereignty holds that Parliamentary sovereignty is binding on Parliament and even Parliament as omnipotent as it is, is powerless to alter Parliamentary sovereignty.4 In more recent times there has been a shift toward a new form of constitutionalism that recognizes restrictions to Dicey’s theory of Parliamentary sovereignty.5 In fact, the decision in Jackson and Others, specifically identifies two limitations on Dicey’s theory of Parliamentary sovereignty.6 Although, the Appellate Committee of the House of Lords agreed that the Parliament did have the authority to pass the Hunting Act 2004, which was the subject of challenge in Jackson, the dicta revealed “deep divisions” among the Lords on the Diceyan view of an omnipotent Parliament.7 In particular Lord Hope identified two ways in which Parliamentary sovereignty has been limited: the court’s ability to determine whether or not an Act of Parliament satisfied procedural propriety and the rule of law which permitted judicial review of administrative actions and decisions.8 Lord Hope’s observation that there has been a gradual decline in Parliamentary sovereignty is also supported by Britain’s admission to the European Union (EU). For example, Parliament passed the European Communities Act 1972 which provides for the direct effect of all EU treaties, procedures and remedies under the treaties without the necessity of “further enactment” by Parliament.9 Similarly, Parliament passed the Human Rights Act 1998 adopting the European Convention on Human Rights and thereby making those rights and freedoms directly applicable and enforceable in the Britain.10 Moreover, in the application and interpretation of Convention rights and freedoms, the national courts are required to take account of any previous decisions or opinions of European Court of Human Rights, or opinions or decisions of the Commission or decisions of the Committee of Ministers.11 In fact, these legislative provisions are reflected by the European Court of Justice’s ruling that: …the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields…12 Lord Bridge commented on the new legal order to which Britain accepted by merely joining the EU and especially with the passage of the European Communities Act 1972. Lord Bridge stated that even before the UK joined the EU, it had been firmly established that EU law was supreme and binding on member states. By joining the EU, the UK had to have known that it was voluntarily given up some measure of Parliamentary sovereignty in favour of the Supremacy of Community Law. The 1972 Act, although a voluntary Act of Parliament, makes it abundantly clear that any misconceptions about Community supremacy is dispensed with. Under the 1972 Act, all national courts must apply Community law in the event there is a conflict between national laws and Community laws.13 Community supremacy therefore challenges the doctrine of implied repeal an essential component of Dicey’s theory of Parliamentary sovereignty. The doctrine of implied repeal recognizes that inherent in Parliamentary sovereignty is the idea that sovereignty is “a continuing attribute of Parliament” and Parliament may not “bind its successors”.14 Therefore, an Act of Parliament can be amended or repealed by subsequent Acts of Parliament or successive Parliaments. Therefore, when a previous Act of Parliament conflicts with a later Act of Parliament, the doctrine of implied repeal operates to either amend of repeal the earlier Act of Parliament.15 In terms of Community supremacy and its erosion of Parliamentary sovereignty, the doctrine of implied repeal will not be operational in terms of conflicts between Community law and later Acts of Parliament.16 Based on the ruling in Factortame per Lord Bridge, Parliament voluntarily delegated some measure of sovereignty to Community law and in joining the new legal order of the EU, notified national courts of a duty to apply Community law. However, it must be noted that the application and supremacy of Community law is only possible where Community law is applicable. The fact is, both the act of joining the Community and legislating to implement Community law and making it directly applicable in the UK are voluntary Acts to which Parliament accepted in surrendering some of its sovereignty. Whether or not the act of ceding some measure of sovereignty to Community law is a reduction of Parliamentary sovereignty is debatable. Dicey argued that Parliamentary sovereignty meant that Parliament had the authority to make and unmake any law on any subject that it wished. Arguably, by enacting the, Parliament was acting within its omnipotence under Dicey’s theory of Parliamentary sovereignty. In other words, Parliament was making laws to which national courts were bound. Based on Dicey’s theory of Parliamentary sovereignty, Parliament can just as easily unmake the statutory basis for ceding sovereignty by repealing or amending the Human Rights Act 1998 and the European Community Act 1972. Pursuant to the dualist theory, the EU treaties are not binding on signatories until such time as the treaty is incorporated by an Act of Parliament.17 Under the monist theory, the treaty is binding on the signatory and will not require an Act of Parliament for ratification. According to Great Britain House of Commons, the “UK is a dualist state” and as such, “unless and until” a treaty is “incorporated into national law by legislation” it has no direct applicability in the UK.18 In this regard, unless and until an Act of Parliament incorporates a treaty, “national courts have no power to enforce treaty rights and obligations either on behalf of the Government or a private individual.”19 The dualist constitution is consistent with Dicey’s theory of Parliamentary sovereignty. According to Dicey, the concept of Parliamentary sovereignty is based on the hierarchal structure of power in which the Parliament represents the electorate. A monist constitution would be entirely inconsistent with the Parliamentary representation of the general public as it leaves open the risk for an abuse of power. Parliament derives its power from the public and would be less likely to enact legislation that would offend the public. The dualist constitution provides a safeguard against executive abuses of power. Abuse of executive power led to a civil war during the 17th century.20 As Lord Denning informs, treaties are not a part of UK law unless and until such time as the UK’s Parliament decides by legislative action the extent to which they are applicable and enforceable.21 Although as Lord Hope observed in Jackson, there has been a constitutional change impacting Parliamentary sovereignty and although there are limits to Parliamentary sovereignty reflected in these changes, the classic theory of Parliamentary sovereignty defined by Dicey remains relevant. The delegation of Parliamentary sovereignty in terms of EU community is nothing more than a voluntary act of Parliament. Parliament is at liberty to repeal the legislative Acts giving rise to the voluntary surrender of some of its sovereignty. As for the procedural impropriety, Parliament is bound by its own statute and constitutional conventions directing procedural propriety for enacting legislation. It has always been a constitutional and administrative requirement that all laws properly passed by Parliament is binding on the courts. Likewise, Parliament as a representative of the public has always been required to comply with the rule of law. Therefore the latter limits to Parliamentary powers are limitations that Parliament voluntarily accepted in much the same manner as it accepted the limitations of Parliamentary sovereignty imposed by treaty obligations when joining the EU. Bibliography Textbooks Birkinshaw, Patrick. European Public Law. (Cambridge, UK: Cambridge University Press, 2003). Craig, Paul and de Burca, Grainne. EU Law: Text, Cases, and Materials. (Oxford, UK: Oxford University Press, 2011). Great Britain: Parliament: House of Commons: European Scrutiny Committee. The EU Bill and Parliamentary Sovereignty, Tenth Report of Session 2010-11, Vol. 1. (London, UK: The Stationery Office, 2010). Loveland, Ian. Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. (Oxford, UK: Oxford University Press, 2012). Parpworth, Neil. Constitutional and Administrative Law. (Oxford, UK: Oxford University Press, 2011). Sellick, Joanne. Key Facts: Constitutional & Administrative Law. (4th Edition, Oxford, UK: Oxford University Press, 2009). Journal Articles Eleftheriadis, Pavlos. ‘Parliamentary Sovereignty and the Constitution.’ (July 2009) XXII(2) Canadian Journal of Law and Jurisprudence, 1-24. Harris, Eleonora. ‘Redefining Parliamentary Sovereignty: The Example of the Devolution Referenda.’ (2011) 3(3) Perspectives on Federalism, 94-125. Jowell, J. ‘Parliamentary Sovereignty Under the New Constitutional Hypothesis.’ (2006) Autumn, Public Law, 562-580. Table of Cases Blackburn v A-G. [1971] 2 All ER 1380. Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. Factortame Ltd. Secretary of State for Transport (No.2) [1991] 1AC 603. Jackson and Others v Attorney General [2006] 1 AC 262. Table of Statutes European Communities Act 1972. Human Rights Act 1998. Read More