Plurality of Law in the United Kingdom - Essay Example

 Introduction The constructs of parliamentary sovereignty in the constitution of the UK has an uneasy co-existence with the supremacy of European Community (EC) law. This is because parliamentary sovereignty provides for the supremacy of parliament’s statutes over other sources of law and that no Parliament can bind successive Parliaments. However, both of these concepts of UK Parliamentary sovereignty are compromised by the UK’s accession to the EC.1 This fact together with the UK’s accession to international treaties and conventions and the application of common law ultimately means that the UK constitution is subject to two underlying and conflicting principles. These two conflicting principles are Parliamentary sovereignty and a plurality of sources of law in the UK. There is a concern and perhaps some measure of optimism that the plurality of sources of applicable law in the UK will eventually limit, if not eliminate the concept of Parliamentary sovereignty and that this would be progressive development. This essayargues however, that the introduction of a plurality of laws in the UK is only made possible by the doctrine of parliamentary sovereignty. Just as parliamentary sovereignty permitted the introduction of a plurality of sources of law it can just as easily reverse this application of a plurality of sources of law. Therefore, while a plurality of sources of applicable laws might challenge the concept of parliamentary sovereignty in practice, theoretically, parliamentary sovereignty continues to provide for a reversal of this approach. I. Parliamentary Sovereignty A.V. Dicey’s description of the constitutional rule of law envisioned by the UK’s concept of Parliamentary sovereignty puts the strength and endurance of UK Parliamentary sovereignty in its proper perspective. Dicey maintains that the UK’s constitution is built around three significant principles. First, the rule of law renders the government accountable to the public. Secondly, the public is also accountable to the rule of law. Thirdly, the constitution sets out the framework by which the judiciary are made accountable for the administration of law.2 In describing the UK constitution, Dicey goes further to state that this constitutional framework is made possible by the fact that Parliament enjoys “total power”, and this is basis of parliamentary sovereignty.3 Dicey maintained that the UK Parliament: …has under the British Constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.4 Carroll refers to Dicey’s theory of Parliamentary sovereignty as “continuing” in that it explicitly suggests that the legislature enjoys unlimited authority to “legislate as it wishes on any topic and for any place.”5 Sir William Wade commented on this concept of continuing sovereignty stating that the only limitations on the legal authority of Parliament is the fact that it is not at liberty to “detract from its own continuing sovereignty”.6 Parliamentary sovereignty is best understood by reference to the make-up of Parliament. It is comprised of the House of Commons and the House of Lords who together pass legislation which is endorsed by royal assent.7 The respect for this aspect of Parliamentary sovereignty is evidenced by the courts’ treatment of these statutes once they pass through Parliament’s process. The courts of the United Kingdom have steadfastly adhered to this constitutional rule of law. For instance, Lord Campbell explained in Edinburgh & Dalkeith Railway Co. v Wauchope that when a statutory provision has properly passed through the Parliamentary process, the court was bound by it.8 Similarly, Lord Morris stated in Pickin v British Railways Board when a statute has been properly enacted by passed through Parliament, the courts do not have the authority to second guess it. The statute will remain enforceable until such time as Parliament dispenses with it by virtue of another statutory provision.9 A vastly similar statement was made in the case of Ex parte Canon in which the court stated: There is no judicial body in the country by which the validity of an Act of parliament can be questioned. An Act of legislature is superior in authority to any court of law….and no court could pronounce a judgment as to the validity of an Act of parliament.10 Both Norse J. and the Court of Appeal denied an application to consider a claim that the proceedings in the House of Commons during the passage of the Social Security Act 1975 was invalid because members of the House at the time the Bill was passed had not been qualified to sit.11 Ultimately, what this means is that the court may only look at the parliamentary roll of statutes and if it appears that the statute has been properly passes through Parliament and subsequently indorsed by royal accent, the court will not look any further.12 According to Carroll, statements made by the judiciary to the effect that the courts are merely required to “interpret and apply” statutes that have been properly enacted is “no more than the rule of recognition in practice.” 13 In other words the doctrine of Parliamentary sovereignty, at least insofar as it relates to legislation has become so firmly entrenched in the UK’s constitution that if rarely, if ever becomes the subject of judicial challenge. It therefore follows from the discussion thus far that once a statute makes provision for a specific procedure to amend or repeal it, any departure from the stipulated procedure renders the amendment or repeal null and void. In AG for the New South Wales v Trethowan the Legislative Constitution (Legislative Council Amendment) Act 1929 of New South Wales provided that the Upper House of Parliament could not be abolished unless by a referendum after the Bill passed through the Parliamentary process.14 After the 1930 elections, New South Wales modified its political completion of the state parliament and a Bill to abolish the Upper House was approved by both Houses although it had never been submitted to a referendum. An injunction was thereafter granted by Australia’s High Court to enjoin the Bill’s submission for royal assent. It was held that since the Parliament of Westminster is sovereign and applies by virtue of the Colonial Laws Validity Act 1864, it therefore follows that all legislation from the colonies are required to be legislated in a manner consistent with the required by the parliamentary process.15 It therefore followed that the Parliament of New South Wales was required to comply with the procedure set forth in the 1929 Act. Thus far it has been established that the strength of the UK’s constitution is Parliamentary sovereignty. This aspect of the UK’s constitution has been necessitated by the fact that the UK does not have a codified constitution and instead evolved over a long period of time, primarily relying on a number of historical documents which include the Magna Carta 1215, the Petition of Rights 1628 and the Bill of Rights 1689 each of which form a part of the UK’s constitution.16 II. Plurality of Sources of Law and the Consequences for Parliamentary Sovereignty Aside from Parliamentary statutes, judicial precedents form a part of the UK’s Constitution as well as a number of historical documents. Essentially, conventions also form a part of the UK’s Constitution. These conventions are possible as a result of the concept of royal prerogative, ministerial responsibilities and/or government resignation by virtue of a vote of no confidence. Moreover, other forms of the UK Constitution emanate from international treaties such as the Treaty of Rome, the North Atlantic Treaty Organization and the various treaties under the United Nations to which the UK is a signatory.17 Even so, British courts have continued to express the view that UK’s Parliamentary legislation remains are superior in the context of the UK’s constitution. As Lord Diplock stated in Hoffman La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128 that: ...in constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation...18 Despite the opinion of Lord Diplock, which is not doubt founded on the firmly established principle of parliamentary sovereignty, the UK’s accession to the European Community adds yet another and more dominating source of law to the plurality of law within the UK’s constitution. The doctrine of Community sovereignty poses a specific contradiction to the doctrine of UK’s Parliamentary sovereignty. The case of Costa v ENEL established the strength of community sovereignty when it was held that by joining the EC, Member States effectively: “…limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves. …The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights.”19 The UK, recognizing and accepting EC supremacy passed the European Communities Act 1972.20 Section 2 provides that all Community treaties are auto applicable and enforceable in the UK.21 Section 3(1) of the Human Rights Act 1998 fortifies the strength of Community Supremacy by providing for all domestic legislation to be construed so as to correspond with the provisions contained in the European Convention on Human Rights.22 Moreover, Section 4 of the Human Rights Act 1998 goes on to state that if a domestic legislative provision conflicts with Community law, the courts shall make a declaration to that effect.23 However, Section 4(6) downplays the strength of Community supremacy by providing regardless of a declaration of incompatibility the corresponding domestic statute will not be automatically regarded as null and void.24 However, the mere fact that Community law has so much authority in the UK, raises it above the specter of insubordinate law in the context of plurality of law sources. It still remains a challenge to UK parliamentary sovereignty since UK citizens are at liberty to lodge complaints against any local statutory laws that coincide with Community law by taking those complaints directly to the Community courts under the doctrine of direct effect.25 The only saving grace in terms of parliamentary sovereignty is found in the words of Lord Hoffman who pointed out in R v Secretary of State for the Home Department, Ex p Simms: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.26 Even so, the age old and firmly established doctrine of implied repeal has been compromised by Section 2(4) of the European Communities Act 1972 which instructs British courts to interpret not only past and existing but also future laws in such a way so as to make them consistent with Community law.27 However, Lord Hoffman’s statement is entirely instructive. It merely reflects that the UK is a unitary state and center of gravity remains in the UK Parliament which can delegate its authority elsewhere. Conclusion The plurality of the various sources of law and particularly the UK’s signing on to the EC and adhering to the concept of Community supremacy, does not usurp the concept of Parliamentary sovereignty although it may appear to do so. The most that can be gleaned from this apparent surrender of parliamentary sovereignty is that the UK’s Parliament is merely exercising its inherent power to delegate its powers and the same sovereignty that permit this delegation, can permit its revocation. Bibliography Textbooks Aspinwall, M. Rethinking Britain and Europe. (Manchester University Press, 2003). Carroll, A. Constitution and Administrative Law (Longman, 5th Ed. 2009). Dicey, A.V. Introduction to the Study of the Law of the Constitution. (MacMillan, 1982). Harris. An Introduction to Law. (Cambridge University Press, 2007). Turpin,C. and Tomkins, A. British Government and the Constitution: Text and Materials. (Cambridge University Press, 2007). Wade HWR, “The Basis of Legal Sovereignty”, (1955) cited in Jowell, J and Oliver, D (eds), (2000) The Changing Constitution. (Oxford University Press 2000). Cases Costa v ENEL [1964] ECR 585. Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710 Ex parte Canon Selwyn [1872] 36 J.P. Hoffman La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128. Martin v O’Sullivan [1982] 1 WLR. New South Wales v Trethowan [1932]AC 526. Pickin v British Railways Board [1974] AC 763 R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 131. Journals/Articles Bennion, F. ‘Modern Royal Assent Procedure at Westminster.’ (1981)2(3) Statue Law Review, 133-147. Statutes European Communities Act 1972 Human Rights Act 1998. Treaty of Rome 1957. Read More