The Doctrine of Parliamentary Sovereignty - Essay Example

of the of the of the Parliamentary Sovereignty Parliamentary sovereignty implies that parliament is superior to all the other branches of government. This doctrine is in direct opposition to the concept of separation of powers. The doctrine of separation of powers states that all branches of the government are equal. Separation of powers ensures the implementation of checks and balances on a branch of government by the other branches (Warren 5). The separation of powers is aimed at precluding concentration of power in a single authority. In the absence of such separation, a branch of government may acquire power and dominance on the other branches. In particular, the distinction between the judiciary and the political branch of the government, has rendered it very important to prevent the concentration of power in any single branch of the government (Warren 6). A.V. Dicey originated the concept of parliamentary sovereignty. This doctrine was accorded considerable significance in Britain and her former colonies. The concept of parliamentary sovereignty entails two ideas. First, Parliament is the apex entity that can enact or rescind any law, irrespective of its nature. Second, no other entity can challenge or set aside a law made by the Parliament. However, the doctrine of parliamentary sovereignty has been frequently contested by judges and the legal profession in the UK, New Zealand and Australia (Warren 5). Dicey has also stated that the rule of law, eliminated uncertainty, prerogative and wide discretionary authority, and established the predominance of the standard law. Moreover, the rule of law, does not permit any entity to be exempted from the duty to obey the law (Lewans 83). Moreover, parliamentmentary sovereignty implies that Parliament can make or unmake any law irrespective of whether such a course of action breaches international laws or the principles of common law. Domestic courts, are required to enforce the laws made by Parliament (Fabunmi and Araromi, 196). In order to achieve the status of an Act, a bill has to receive a majority of the votes in the House of Commons, as well as the House of Lords. Thereafter, Royal Assent has to be accorded to this bill. In the context of the aforementioned majority of the votes, a bill becomes an Act, even if it is passed by a majority of one vote. The nature of the law passed by Parliament, irrespective of whether it is a constitutional law or an ordinary law, is not subject to any distinction (Loveland 24). This is an important facet of parliamentary sovereignty. The legislation passed under an Act of Parliament, is of equal status as legislation passed in the normal course. This important conclusion was the outcome of the decision of the House of Lords in Jackson (Gillespie 31). However, in Thoburn v Sunderland City Council, the House of Lords had to state that Parliamentary sovereignty had been seriously affected by the provisions of the European Communities Act 1972. In the UK, the Parliament Act 1911 empowered Parliament to make legislation relating to its procedures. This Act was principally enacted, in order to limit the powers of the House of Lords to delay the enactment of legislation. Subsequent to its procurement of membership of the European Union, the UK was compelled to incorporate EC Law, into its domestic law. Thus, the European Communities Act 1972 served to limit the sovereignty of the UK Parliament to a significant extent. The exception to this situation was provided by the House of Lords’ decision in the R v Burstow and R v Ireland cases (Fabunmi and Araromi 197). The supremacy of Parliament was affirmed by the court in Edinburgh and Dalkeith Railway v Wauchope. Furthermore, in Lee v Bude and Torrington Junction Railway Company, it was held that the courts were bound to apply Acts of Parliament. In the UK, it had been the practice to accord precedence to an Act of Parliament over any international law. (Fabunmi and Araromi 198). This situation changed with the enactment of the European Communities Act 1972. The outcome of the European Communities Act 1972 was to harmonise the national law of the UK with the EU law. In Thoburn v Sunderland City Council the House of Lords expressed their inability to circumvent applicaion of the European Communities Act 1972 , as it enjoyed the status of a constitutional statute at the common law. Consequently, the common law was seen to generate constitutional grounds , in order to apply the European Communities Act 1972. This Act stipulates that Parliament has to enact laws that comply with the law of the European Community. Specifically, section 2(1) of the European Communities Act 1972, directs Parliament to enact legislation that conforms to the Comunnity Law. Moreover, Parliament has to incorporate the provisions of the Treaties of the Community, in the domestic legislation. In other words, Parliament is under a duty to recognise and implement EC Law (Hartley 261). EC Law prevails over the domestic law of the Member States. Thus, the Member States have to surrender their sovereign rights to the Community. This has transpired to a major extent, and the Member States have transferred their powers to the EC. Section 2(1) of the European Communities Act declares that the rights and obligations, stipulated in the Treaties are directly enforceable in the Member States. (Fabunmi and Araromi 198). Thus, the UK is required to give effect to these rights, procedures, and remedies without further enactment of laws. The following case law reveals the fact that Community law is supreme. In Costa v ENEL, it was held that EC Law prevailed over domestic legilsaiton. This was applicable even to domestic law that had been enacted after the applicable EC Law . On occasion, the courts may take decisions, within the existing social context. Thus, the House of Lords interpreted sections 20 and 47 of the Offences Against the Person Act 1861, within the existing social context, in R v Burstow and R v Ireland (Fabunmi and Araromi 200). The Factortame case related to the fishing operations conducted in UK waters by Spanish fishermen. In order to safeguard the interests of the UK’s fishermen, the UK Parliament enacted the Merchant Shipping Act 1988, which permitted only the UK companies to conduct fishing operations in these waters. The European Court of Justice ruled that the UK had to compensate the Spanish fishermen, who were put to a loss, due to its breach of the Community law. Thereupon, the House of Lords, granted the injunction sought by Factortame Ltd (Weatherill 123). With this judgement, it became evident that the national courts had to set aside domestic legislation that was in conflict with Community law. Thus, the supremacy of EC law over domestic law was firmly established in this case, thereby emasculating the concept of Parliamentary sovereignty. The contention, based on the common law and political considerations that the legislature enjoys supremacy, is belied by the fact that the courts have on occasion disproved it. Consequently, parliamentary sovereignty cannot be expected to reign as the cardinal tenet of constitutional law. Legislative supremacy, which had been defined by Dicey, has been significantly weakened by the inexorable progress of European integration (Bradley and Ewing 78). Moreover, the Human Rights Act 1998 was enacted by Parliament, with the apparent objective of implementing the provisions of the European Convention on Human Rights. However, the UK introduced a number of constructs that ensured that rights were not properly granted to the public. All the same, a few reforms were made to the extant legal system. One of these was a framework that ensured the protection of rights and provided anti – discriminatory measures. Another important development is the requirement under section 3(1) of the Human Rights Act 1998, which compels national courts to interpret national law, in accordance with the rights provided by the Convention. With this Act, Parliamentary soverignity was relegated to the background. As such, the Human Rights Act 1998, empowers the courts to examine legislation, in order to determine, whether they are compliant with the European Convention on Human Rights. Thus, a situation has arisen, wherein Parliament is no longer the sole entity engaged in enacting laws in the UK (Bradley and Ewing 78). The justification for legislative supremacy, is the existence of adequte balances and checks in the political system. These should ensure that no law should be enacted that breaches a fundamental constitutional principle or infringes the basic rights of individuals . After the European integration,all the Member States have to comply with the provisions of European community law, in the event of conflict with their domestic laws. The European Communities Act and the Human Rights Act supercede domestic legislation and inturn highlight the supremacy of EC law. The courts are also required to interpret their national laws according to the provisions of the Community law. The decided case law has also reiterated the fact that Parliamentary soverignity in the UK, is merely a myth. Works Cited Bradley, A W and K D Ewing. Constitutional and administrative law. Pearson Longman, 2007. Edinburgh & Dalkeith Railway Company v John Wauchope . No. UKHL 710. House of Lords. 1842. "European Communities Act (c. 68)." Crown copyright, 1972. "European Convention on Human Rights." 1950. Fabunmi, Martins and Marcus Araromi. "The Impact of Constitutional Principles on the Administration of Justice in United Kingdom." European Journal of Scientific Research (2009): 33.1: 95 – 201. Flaminio Costa v ENEL . No. ECR 585. 1964. Gillespie, Alisdair. The English legal system. Oxford University Press, 2007. Hartley, Trevor C. The foundations of European Community law. Oxford University Press, 2007. "Human Rights Act (c.42)." Crown copyright, 1998. Jackson v Attorney – General . No. UKHL 56. House of Lords. 2005. Lee v Bude and Torrington Junction Railway Co . No. LR 6 CP 576. 1871. Lewans, Matthew. "Rethinking the Diceyan Dialectic." University of Toronto Law Journal (2008): 58.1: 75 – 104. Loveland, Ian. Constitutional law, administrative law, and human rights: a critical introduction. Oxford University Press, 2009. "Merchant Shipping Act (c.12)." Crown copyright, 1988. "Offences Against the Person Act (c.100) ." Crown copyright, 1861. "Parliament Act (c.13)." Crown copyright, 1911. R v Ireland and Burstow . No. AC 147. House of Lords. 1998. R v Secretary of State for Transport ex p Factortame Ltd (No 1). No. 1 All ER 70. House of Lords. 11 October 1990. Thoburn v Sunderland City Council . No. EWHC 195. 2002. Warren, Marilyn. "Unelected Does Not Equate With Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary." Deakin Law Review (2008): 13.2: 1– 16. Weatherill, Stephen. Cases and materials on EU law . Oxford University Press, 2007 . Read More