The Sovereignty of Parliament - Essay Example

RUNNING HEAD: THE SOVEREIGNTY OF PARLIAMENT The Sovereignty of Parliament School The Sovereignty of Parliament Parliamentary Sovereignty is derived from interpretation of British Constitutional Law recognizing the supremacy of Parliament as the final arbiter of all British Law. "The supreme law enforcement authority of the nation, vested in the freely elected House of Commons, being the Grand Inquest of the Nation, to which all authority, Executive, Administrative and judicial was finally responsible."1 Due to the supremacy of Parliament, only Parliament may add to, delete from or change any legislation as it deems fit. Further, there are three major areas of Parliamentary Sovereignty: Parliament is not limited in its scope to create any law in any area; No Parliament may 'bind its successor', meaning no law may be instituted that can not be repealed or altered. And only Parliament has the authority to alter or repeal any law that it has passed.2 The basic tenets of these are based on the precepts of the Constitution itself.3 A. V. Dicey in 1885 summarized in his definition of the Rule of Law three areas are comprised: English law is what rules the citizens, not those that establish the law or choose to use it for their own advantage; there is an intrinsic understanding that all are equal under the law; and lastly that a constitution is a result of the laws of the land not the converse.4 One of the most contentious issues of debate concerning the Constitution remains the Sovereignty of Parliament. "The law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants; thus the constitution is the result of the ordinary law of the land."5 Dicey is stating that unlike written forms of Constitution, the British Constitution is an evolving conceptual embodiment of the will of the people, not a document that forces its will upon the people. Parliament's most important role is that of a legitimizer of the government's actions,6 dating back to one of the founding documents of the British Constitution, the Magna Carta.7 Written in 1215, the Magna Carta laid the cornerstone of the Sovereignty of Parliament in that it limited the power of the monarch by written grant.8 Modern Parliament was formulated with the passage of the Act of Union 1707 with the joining of the Scotland under the federal rule of Britain while still allowing them some autonomy.9 The British Common Law constitution acknowledges the sovereighness of the monarchy; however, it affirms that likewise, as they must uphold the law, they are powerless to change it; that rests solely with Parliament.10 Several cases upholding its Sovereignty follow. Pickin v British Railways Board [1974] HL upheld the Supremacy of Parliament in that the judicial challenge of any act of Parliament is disallowed.11 Vauxhall Estates v Liverpool Corporation [1932] DC held that the Sovereignty of Parliament is assured and no Parliament may bind another parliament.12 Similarly, Ellen Street Estates Ltd v Minister of Health [1934] held that the Sovereignty of Parliament was absolute and there is no judicial review allowed.13 The 1998 Human Rights Act (HRA) has, some suggested, further weakened the Sovereignty of Parliament. Section 19 of this Act is particularly important in that without its full knowledge and clear understanding Parliament will not enact any legislation incompatible with the convention without its full knowledge and understanding. The Minister is required upon introducing a bill to Parliament to make a clear statement as to, in his opinion, the bill contradicts the convention. If he is unable to make a determination as to compatibility he is required to state such and affirm that government wishes to pass the bill regardless.14 Parliament Sovereignty is upheld in that even if a statute is declared to conflict with the act, regardless of that status, it remains in affect until Parliament repeals or supersedes the statute. There is no legal requirement dictating that Parliament must take action on an incompatible statue; therefore, if they choose not to act, the statute, although incompatible, remains enforceable. With the UK's signing of the European Community Act of 1972 (ECA 1972) and enjoining itself with the European Union (EU) it has been argued that Parliament has relinquished its sovereignty. In [2001} EWCH Admin 934, the Morgan Judgment, the court held that per Section 2, 2. (2) of the ECA 1972 the state was afforded authority to enact subordinate legislature. Further in 2 (4) of the same section it was argued that Parliament had bound itself by signing legislation that resulted in Parliament's relinquishing sovereignty in that this act supersedes British law which is in conflict. Although it can be argued that parliamentary sovereignty has been eroded by passage of this act, the court ruled that the ECA of 1972 is not entrenched and, therefore, can be repealed. Several cases seem to limit the supremacy of Parliament with the emergence of the EU. Several of these cases are provided as evidence of this. In Costa v ENEL [1964] ECR 1125 the ruling upheld was that EC law Overrides any national law that conflicts with it.15 In R v Secretary of State for Transport Ex Parte Factortame (no. 2) [1991] HL held that any act of Parliament incompatible with any requirement of EC law can and must be declared invalid and ineffective to the extent of that incompatibility.16 Another case testing the Sovereignty of Parliament was Pickstone and others v Freemans plc [1988] 2 All ER 803, [1988] 3 WLR 265, [1989] A.C. 66 R. The appeal was dismissed on the grounds that the UK Equal Pay Act of 1970 did in fact confirm to EU law.17 As Lord Templeman said in Lister v Forth Dry Dock Co Ltd [1990] 1 AC 546, 558E, "the UK courts are under a duty to follow the practice of the European Court of Justice when construing Community instruments. A purposive approach is to be adopted, and the travaux prparatoires may be referred to for guidance as to what was intended. Community legislation is to be interpreted, so far as possible, in such a way that it is in conformity with general principles of Community Law:"18 As a member of the EU, the UK has given up a portion of it national sovereignty including being bound to EU directives, which are orders, and regulations, which are executive orders.19 One final area that must be considered is that of devolution, not only at the EU UK level but also how EU membership affects UK Wales/Scotland. To that end the UK remains on the secondary level within members of the UK while still maintaining statutory control at the EU level.20 In closing, for centuries the UK has protected the Sovereignty of Parliament. With the admittance to the EU concessions to a certain extent have been made. Although having adopted the tenets of the EU has resulted in the relinquishing of in part of the Supremacy of Parliament ultimately Parliament does have the capacity to withdrawal from the EU and regain its complete sovereignty once again. References Carter, C. A. (31 Oct. 2002). "The formulation of UK-Eu policy post-devolution: a Transformative model of governance" Manchester Papers in Politics. European Policy Research Unit (EPRU). University of Edinburgh. 2 Jan. 2005 les.man.ac.uk/devolution/docs/EPRU Paper 9 - Caitriona Carter.pdf Costa v ENEL [1964] ECR 1125 Dicey, A. V., (1885, 1914, 1959) "Introduction to the study of the law of the constitution.' (1st, 8th, &10th ed.) Retrieved November 25, 2005 from: http://www.constitution.org/cmt/avd/law_con.htm Ellen Street Estates Ltd v Minister of Health [1934] [2001] EWCH Admin 934 European Community Act of 1972 Flinders, M. (March 2002). "Shifting the balance parliament, the executive, and the British Constitution". Political Studies, 50:1, 23 - 43. 28 Nov. 2005. Academic Search Premier Database. EBSCO Host. Human Rights Act of 1998 Jennings, Sir I. (1959). The Law and the Constitution. (5th ed.). London: University of London Press. Lister v Forth Dry Dock Co Ltd [1990] 1 AC 546, 558E Lord Chancellor's Office, Lord Irvine. (1 Nov. 2002). "Human rights balance has been achieved" Government News Network (GNN) 2 Jan. 2005. http://www.gnn.gov.uk/Content/Detail.aspReleaseID=29149&NewsAreaID=2 Lord Hope of Craighead in Rasheed Bank v Shanning International Ltd. House of Lords http://www.ipsofactoj.com/international/2001/Part07/int2001(7)-009.htm Pickin v British Railways Board [1974] HL Pickstone and others v Freemans plc [1988] 2 All ER 803, [1988] 3 WLR 265, [1989] A.C. 66 R v Secretary of State for Transport Ex Parte Factortame (no. 2) [1991] HL "Sovereignty - the traditional view." (n.d.). Sixth Form. The Bournemouth and Poole College Online. 29 Nov. 2005. http://sixthformlaw.info/01_modules/mod3/3_31_eu_law/supremacy/01_traditional_view .htm Sykes, A., (Mar.2002). "The rule of law as an Australian Constitutionalist promise." Murdoch University Electronic Journal of Law, 9:1. 25 Nov. 2005 http://www.murdoch.edu.au/elaw/issues/v9n1/sykes91_text.html#t8 "Treasures in full Magna Carta." (1215). British Library. 26 Nov. 2005 from http://www.bl.uk/treasures/magnacarta/magna.html Vauxhall Estates v Liverpool Corporation [1932] DC Young, L. (n.d.) "Introduction to the Constitution." 24 Nov. 2005 from http://www.camrecon.demon.co.uk/page1.htm Read More