Doctrine of Parliamentary Sovereignty - Essay Example

How the Changing Constitutional Landscape of the EU Challenges the Sovereignty of the parliament I. Introductions The idea that parliament is sovereign is not really a new concept in English law and it has been in effect for many years. According to the court in the case of Madzimbamuto v Lardner-Burke1, the sovereignty of the Parliament is a recognized fact and it has been so for many years. The doctrine of Parliamentary sovereignty is part of English law and for many years, the rule that the “Parliament can do anything except bind its successor”2 has been a well accepted principle. According to Wade (1996), the doctrine of Parliamentary sovereignty is an “ultimate legal source” and is therefore beyond the reach of statute3. Aside from being an ultimate legal source, the fact that the doctrine of parliamentary sovereignty has been recognized under the Communities Act 1972 make this doctrine even stronger. Note that the doctrine of parliamentary sovereignty is enshrined in the European Communities Act 1972 which provides that the Parliament has the final say when it comes to what laws are to be or should be implemented within the territories of the United Kingdom4. The powers of the Parliament are separate and distinct from the powers of the courts and the courts may not usurp the powers of the Parliament by declaring the laws enacted by the Parliament to be invalid. Technically, this means that when since the powers of the Parliament are distinct, any other government agencies cannot usurp or put limitations to such powers without violating the laws5. Although English law gives the Parliament the powers to enact laws and enjoy sovereignty, the doctrine of parliamentary sovereign has been challenged many times in the past and will be challenged again and again in the future. The devolution of the powers of the Parliament together with some laws and treaties put pressure on sovereignty the sovereignty of the Parliament. Note that there are provisions under the Human Rights Act 1998 (HRA) and in a number of European Union (EU) treaties that may weaken and even override the inherent powers of the parliament. When it comes to the Human Rights Act, there are provisions in the act that allows the courts to review the legislations made by the Parliament or declare these legislations as incompatible with the European Commission on Human Rights (ECHR). On the other hand, the ratchet clauses in some EU Treaties allow the transfer of powers from the UK Parliament to the EU without the need to amend the treaty. Moreover, there are some provisions in the treaties that require the implementation of EU laws over local laws which in effect usurp the powers of the Parliament to decide which laws are to be implemented among its subjects6. These types of provisions do just threaten to undermine the powers of the Parliament; they also have the potential to render the Parliament ineffective in controlling the kinds of laws and regulations that will be implemented within its territorial jurisdiction. To understand these issues better, let us take a close look at the issue of devolution as well as some of the important provisions of the HRA and some important EU Treaties. II. Devolution of Powers of the Parliament Devolution of Powers of the Parliament to sub-national units started way back in the early part of the 1900s when the Parliament passed the Parliament Act 1911. Dicey (1915) noted that the enactment of the Parliament Act 1911 changed the very nature of the sovereignty of the parliament from something that is supreme to something that can be considered as “shared sovereignty” with the Commons7. According to Dicey, while the sharing of the powers of the UK Parliament is good, it also undermines its powers so instead of the Parliament being supreme, the Cabinet and political party now become supreme8. The devolution of powers of the UK Parliament to the sub-national units further gained hold in the UK through the enactment of the Irish Free State Act 1922 which recognized the idea that consent and not the law is the main source of legitimacy of the powers of the state9. Other Acts which provide from the devolution of some of the powers of the UK Parliament to the sub-national units also followed, the latest of which are the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 199810. These three acts empowered the local Parliaments in these places to enact local laws as long as these laws do not contravene the laws enacted by the UK Parliament11. The devolution of powers is a voluntary act of the Parliament that is binding upon itself. According to the court in the case of R v Secretary of State for Transport, ex parte Factortame Ltd (No 2)12, whatever limitations set by the Parliament upon itself are made voluntarily, thus, when the UK Parliament devolves its powers, it is bound to recognize the exercise of such powers by the institution upon which such powers have been devolved. III. The Powers of the Parliament and the Human Rights Act As stated in Section 3 of the HRA, the courts and legal tribunals in the country has the duty to determine its compatibility with the rights enshrined by the European Convention on Human Rights. The legal obligation to interpret legislations and to determine as to whether or not these legislations are compatible with the ECHR can be a double edge and for sometime, this provision has been the subject of many discussions. Many people believe that this provision interferes with the powers of the parliament by allowing the courts to review what is has enacted and determine whether the laws enacted by the Parliament are incompatible with the ECHR. At first glance, it may appear that the courts have the powers to limit the mandate of the Parliament but if we continue reading Section 3 of the HRA, we will see that the powers of the courts are limited to the interpretation of the law and in determining as to whether or not these laws are incompatible with the ECHR. It does not give the courts the rights to suspend or disregard the legislations that it deemed incompatible with the ECHR. Besides, the courts have to follow certain procedures when interpreting legislations and it may have to go back to the discussions made in Parliament during the passage of such law to determine the intent of the parliament in passing the law13. According to the court in the case of Pepper (Inspector of Taxes) v Hart14, when the primary legislation is ambiguous, the courts may look into the circumstances which lead to the passing of the law to interpret the law. Since the courts is oblige to delve into the intentions of the Parliament in passing the law, we can safely say that the courts is only enforcing the will of the Parliament when it interprets the law. Since the court may not be able to interpret legislations as compatible with the ECHR, its remedy is to make a Declaration of Incompatibility. The Declaration of Incompatibility by itself does not have any limiting effect on the sovereignty of the Parliament. Note that under the doctrine of separation of powers, the courts and the parliament have distinct roles to play and each are considered as independent from each other, thus, under Section 4 (6) (a) of the HRA, the Declaration of Incompatibility does not have direct impact on the powers of the legislature. In fact, the Declaration of Incompatibility merely has recommendatory powers and although it may help pressure the Parliament to remove the provisions of the law that are incompatible with the ECHR, it cannot compel the Parliament to do so. In other words, what the courts can do is to persuade the Parliament and not force it to do what the courts want it to do. The act of declaring a provision as incompatible with the ECHR is considered as a last resort for the courts and it requires an act of the Parliament to change the provisions identified as incompatible. However, once the declaration of incompatibility has been acknowledged and acted upon by the Parliament, this declaration becomes binding until it is removed by parliament itself15. Given this situation, we can safely conclude that when it comes to the HRA, the courts do not have the powers to limit the powers of the Parliament but can only persuade the Parliament to limit itself. As it is, the Parliament remains sovereign and its powers untouched by the courts. IV. The Parliament and the EU Treaties While the HRA provisions of the HRA may not actually encroach into the powers of the Parliament, the same may not be true when it comes to the ratchet provisions contained in some EU Treaties. Ratchet clauses, also known as bridging clauses are self-amending provisions that are incorporated into some EU Treaties16 to allow changes in the treaties without having to go through a proper treaty amendment. The wisdom of putting ratchet clauses in some of the EU Treaties are is rooted in the principle that the treaties must evolve and since it is time consuming and expensive to go through formal treaty amendments to change or expand some of the provisions in the treaties, putting in ratchet clauses will speed up the process and minimize cost. Although the intentions of putting these ratchet clauses into the treaties may be well meaning, unfortunately, some of these ratchet clauses allow changes in the EU Treaties without the need for any formal changes in the Treaty while some of these ratchet clauses are designed to allow existing powers or competences of the EU to increase or expand. As it is, these ratchet clauses may bring about changes that may pose threats to the sovereignty of the English parliament. Note that since the provisions of these treaties are binding on the EU member countries, the parliament may have no choice but to honor the provisions of the treaties even if these provisions may transfer some of the powers of the state to the EU. Note that at present, there are no agreed definitions or limitations on the ratchet clauses incorporated in the EU Treaties as these clauses as meant to be fluid and flexible. As it is, the English Parliament may eventually lose some of its powers to the EU by virtue of the changes brought about by the ratchet clauses in the treaty. Note that since there are no clear agreements between the EU members as to the definitions and limitations of the ratchet clauses embodied in some EU treaties, these clauses can be interpreted and expanded in any way possible17. The idea that the powers of the Parliament may be limited by the EU Treaties does not sit well with the English parliament so when the Coalition Government took office in May 2010, it vowed to correct the problem and set boundaries as to when and how the Parliament can relinquish its powers to the EU and any other foreign bodies18. To protect the sovereignty of the Parliament, the Coalition Government proposed the passing of the European Union Bill19. The proposed EU Bill is has already gone through second reading in December 2010 and it is now under committee review. Highlights of the Bill include the recognition of the Parliamentary supremacy, the interpretation and definition of the ratchet clauses in the EU treaties and the institution of a referendum block to let the people decide as to whether or not they allow the Parliament to accede to certain changes in the EU treaties20. a. Recognition of Parliamentary Supremacy Although the supremacy of the Parliament is a well established principle under English law, the proponents of the EU Bill wanted to make sure that the Parliament retains control when it comes to the laws implemented within its territorial jurisdiction. As it is, the EU Bill proposed that all EU laws must pass through the Parliament and that the Parliament shall have a final say as to which laws should be implemented within UK soil. Given this situation, the EU may not be able to dictate which laws should be implemented within UK soil without the consent of the parliament. This means that the Parliament may not be able to prevent the transfer of powers from the English government to the EU by simply exercising its veto powers and disallowing the implementation of certain laws within its soil. For instance, even the EU Treaties through the ratchet clauses mandate member countries to open its borders and allow free entrance of citizens from other EU member countries, the UK Parliament may exercise its veto powers and prevent the EU from implementing this rule on UK soil. In cases where the Parliament is forced by the EU to give up its veto powers, the proposed EU Bill provides that the referendum must be conducted to let the people decide as to whether or not it will allow the Parliament to give up its veto powers in favor of the EU21. The act of allowing the people to vote in a referendum to allow or disallow the Parliament to give up its powers to the EU is a control measure that is designed to involve the people in the decision-making process and at the same time give the Parliament more persuasive powers to retain its veto options. b. Addressing the Ratchet Clauses Some of the ratchet clauses in the EU treaties allow the transfer of powers from the local governments of the EU member countries to the EU Parliament and the idea that the powers of the local government may be abdicated in favor of the EU does not sit well with the English Parliament. Note that ratchet clauses that allow the transfer of powers from governments to the EU can have some serious implications and it that may weaken the sovereignty of the Parliament22. The threat posed by these ratchet clauses as so real that the proposed EU Bill seeks to define and set limitations to these clauses. When the EU Bill turns into a law, it will give the Parliament the power to define which ratchet clauses are acceptable to the English people and which ratchet clauses are not acceptable23. By giving the Parliament the powers to review, define and set limitations on these ratchet clauses, the Parliament regains its powers as the highest law making body of the land. Moreover, passing the EU Bill will let the Parliament retain its veto powers on the important provisions of the treaties and prevent the abdication of powers of the UK Parliament in favor of the EU. Since the UK Parliament can say no the EU under the proposed EU Bill, the Parliament may be able to deflect threats that can weaken its powers. V. Conclusion Parliamentary sovereignty may be an ultimate legal source but that does not mean that it is immune to threats posed by the changing constitutional climate of the EU. There are many laws and treaties within the EU that contain provisions that may limit the scope and weaken the powers of the parliament. Although the HRA does not actually allow the courts to usurp the powers of the parliament, it grants the courts the powers to review and declare legislations to be incompatible with the ECHR and recommend for their amendment. On the other hand, ratchet provisions in the EU treaties may interfere with the veto powers of the Parliament and undermine its authority within its territory. Given the many threats against parliamentary sovereignty, instituting control measures such as those contained in the proposed EU Bill may help preserve the sovereignty of the parliament and allow the parliament to retain control over the legislative processes within its territories. References: Books and Journals 1. Alder, John (2009) Constitutional and Administrative Law 7th edition Palgrave Macmillan 2. Allan, T. R. S. (1997) Parliamentary Sovereignty: Law, Politics and Revolution 113 LQR 445 3. Berry, E. and Hargreaves, S. (2007) European Union law Oxford University Press 2nd edition 4. Costigan, Ruth (2006) Determining ‘Functions of a Public Nature’ under the Human Rights Act 1998: A New Approach European Public Law, Volume 12, Issue 4 577 Kluwer Law International 5. Craig P and G de Búrca (2008), EU Law: Text, Cases and Materials 4th edn OUP 6. Dicey, (1915) Introduction to the Study of Law of the Constitution 8th Edition 7. Holland, James; Webb, Julian (2006). Learning Legal Rules. Oxford University Press 8. Turpin, C. & Tomkins, A. (2007) British government and the constitution: text and materials Cambridge University Press 9. Wade, H.W.R. (1996), Sovereignty: Revolution or Evolution, LQR 568 Laws and Cases 1. Foreign and Commonwealth Office “Sovereignty and the European Communities”, 30/1048-1971 2. Human Rights Act 1998 3. Madzimbamuto v Lardner-Burke [1969] 1 AC 645 4. Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 5. Proposed EU Bill 2010 6. R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603; [1991] All ER 70 Online Sources 1. UK Parliament Publications, European Union Bill Explanatory Notes viewed 31 December 2010 http://www.publications.parliament.uk/pa/cm200405/cmbills/045/2005045.pdf 2. British Broadcasting Company (6 October 2010) William Hague promises UK sovereignty law viewed 30 December 2010 http://www.bbc.co.uk/news/uk-politics-11484355 3. Helene Mohulland (October 6, 2010), William Hague Outlines Plans for UK Sovereignty Clause in the EU Bill viewed 31 December 2010 http://www.guardian.co.uk/politics/2010/oct/06/william-hague-uk-sovereignty-law 4. British Broadcasting Company (BBC) (6 October 2010) William Hague promises UK sovereignty law viewed 31 December 2010 http://www.bbc.co.uk/news/uk-politics-11484355 5. Hawkins, Ross (11 November 2010), UK could Transfer Powers to Europe without referendum viewed 30 December 2010 http://www.bbc.co.uk/news/uk-politics-11736570 6. European Union Bill Debate (December 7, 2010) viewed 30 December 2010 http://news.bbc.co.uk/democracylive/hi/house_of_commons/newsid_9266000/9266389.stm accessed 16 December 2010 7. European Union Bill Debate (December 7, 2010) viewed 30 December 2010 http://news.bbc.co.uk/democracylive/hi/house_of_commons/newsid_9266000/9266389.stm Read More