Sovereignty. The traditional doctrine of Parliamentary Sovereignty is a result of the absence of a written constitution in UK. And due to that absence, Parliament is the most supreme law making body among the other two institutional powers, namely, the executive (Government) and the judiciary (Courts).
In the view of the famous nineteenth century historian A.V Dicey, under the traditional doctrine of Parliamentary Sovereignty, Parliament is free to make any laws it wishes and no other determinate body is able to override or set aside any Act of Parliament. Meaning, Parliament made laws would be superior than all the other sources of law and would remain in force even if the judges were to notice that the primary legislation is out of date. However, the Acts can be subject to being expressly and impliedly repeal. Implied repeal is where, if, any inconsistencies were to arise between the later statute and the former, then the later statute would impliedly repeal the former and the authority for it is Ellen Street Estates Ltd v Minister of Health (1934) [1] and Vauxhall Estates Ltd v Liverpool Corp (1932) [2] . But, constitutional statutes (Such as the Human Rights Act 1998) could only be expressly repealed. There is an added theory that Parliament is not bound by its predecessors or shall bind its successors. Whereby, Parliament should not legislate in a way that would restrict the law making functions of future Parliaments. And this could be seen when UK Westminster passed the Parliamentary Act of 1949 which repealed the earlier Act of 1911The third principle is that once the Parliament has legislated, no court or person is able to pass judgment upon the validity of the legislation: Pickin v British Railways Board (1974) [3] ;
Edinburgh & Dalkeith Railway v Wauchope (1842) [4] ; Lee v Bude and Torrington
(1871) [5] . Meaning, the judges cannot challenge or question the Acts passed by Parliament because the Parliament is of a superior status than the courts.
In recent times, however, it has been accepted that there are limitations to the traditional doctrine of Parliamentary Sovereignty and that is in the words of MP Cash ‘serious threats’ towards the sovereignty of the Parliament. The power has been given to bodies like Government Ministers and local authorities to make delegated legislation is one of it. And, this has watered down the notion of Parliamentary supremacy as this falls out of Parliament’s law making process. Furthermore, entrenched laws that are embedded in the constitution are highly unlikely for Parliament to dismantle devolution policies (where the UK has given some legislative powers to Scotland) are also one of the limitations to the concept of sovereignty because of its historical, social, economical and political reasons in the constitution. Also, because the Government has transferred its powers to certain areas by statute and the possibility for Parliament to reassert its powers seems to be difficult and future Parliaments may also not repeal the powers. But, in theory, that does not mean that the Parliament is unable to do so, but in a pragmatic sense; chances of the Parliament doing so would be unlikely. And this problem gives rise to question marks about the theory that Parliament shall not bind its successors. Moreover, from the common law, it is true that judges do make law especially in contract and tort law where common law development has far outweighed the statutory provisions.
However, it should be noted that, the impact towards the Parliamentary Sovereignty is far- greater, especially of UK’s membership in to the European Community. And even though the Parliament claims itself to be supreme, UK’s accession in to European Community (EC) since 1973 has indeed undermined its sovereignty. This can be seen in the case of Costa v ENEL (1964) [6] that was brought to the European Court of Justice (ECJ), where the court stated that, ‘the member states have limited their sovereign rights…and has created a body of laws that would be binding on them and their nationals.’ In addition to that, in Simmenthal (1979) [7] , the ECJ had gone on further stating that EC law is to be applied in its entirety in any national court. Also, the courts are to protect the rights of EC and accordingly, to also ‘set aside’ any provisions of domestic law that would be conflicting with EC law. And as a result, the principles of the doctrine (as mentioned above) are no longer strictly accurate. Moreover, if there is a domestic law that is contravening with Community laws, the latter has to prevail. This has inadvertently also impacted on the workings of the Parliament and in practice, also of the public and local authorities. But it is possible for the UK’s domestic law to prevail over Community law. Lord Denning in the case of Macarthys v Smith (1981) [8] has himself said that if the Parliament were to pass an Act with the intention to act inconsistently (with the Treaty) and had in express terms said so, and so it would be the UK courts’ duty to follow the statute. However, the same principle as in Simmenthal [9] was applied in the shipping case of R v Secretary of State for Transport ex parte Factortame (1991) [10] . Here, the UK was found to be obligated to a duty to amend the Merchant Shipping Act 1998 as it was found by the ECJ to be incompatible with Article 7 of the Treaty of Rome (discriminations based on the grounds of nationality). And the House of Lords ruled that when the UK had breached the community law, it amounts to a ‘serious breach’. The UK had to also reluctantly give effect to the European Communities Act 1972, that gives effect to the primacy of the European Community law and the doctrine of parliamentary sovereignty has turned into a thing of a past as its glory has appeared to have faded away. And, under Section 2 (1) of the European Communities Act, provisions of the EC law should be directly applicable where it is clear and hence the direct effect principle (Van Gend en Loos [11] ). And, in Section 2 (4) of the Act, besides the European Communities Act itself, other UK Acts of Parliament would be subject to the provisions of the EC Treaty. Hence, this demonstrates that, all the legislations that are passed by the Parliament have to adhere to EC law. But, commentators, in an optimistic view, have interpreted Section 2(4) of the European Communities Act 1972 as an ‘escape clause’. Meaning, in theory, the UK is able to escape from performing its obligations under the EC law by just repealing just this Section of the Act. However, pragmatically, the extent to which the law is entrenched and also in the face of political reality, it is unrealistic for UK to leave the EC. Hence, it is true that the impact of UK’s membership to EC since 1973 has the heavily undermined the concept of Parliamentary Sovereignty.
A further effect on the principle of sovereignty is also of the Human Rights Act 1998, the Act that is part and parcel of the Labour Government’s political manifesto in 1997. This Act implements a large sum of the European Convention on Human Rights (ECHR). And, with this act, the courts are able to declare the domestic laws ‘incompatible’ if found to be ‘incompatible’ with the ECHR under Section 4 of the 1998 Act. And so the Parliament has the duty to pass laws that are compatible with the ECHR. This power that enables the judges to make a ‘declaration of incompatibility’ to, Professor David Feldman (2005) [12] , has been ‘a major move away from the…concept of parliamentary sovereignty.’ And also, the Home Secretary in 2003, David Blunkett [13] has been quoted, saying, that he was ‘fed up’ because the decisions made from the issues that were debated in Parliament are just being overturned by the judges almost every time. And, surprisingly, Ex-Prime Minister Tony Blair, expressed that the HRA is just ‘an abuse to common sense’ to a decision that gave refugee-status to nine Afghan nationals that had hijacked a plane. [14] Hence, this is an example that Parliament is no longer able to do whatever laws it wants to legislate. But, the UK could be able to maintain its Parliamentary sovereignty by expressly repealing the HRA or choose not to not respond to the judicial declaration of incompatibility, but it could not be able to do so as EC law must be followed.
The vast amount of laws that streams out of the EU like, in the words of MP Cash, ‘a tsunami’ has also affected the doctrine as well as every individual (i.e. voter, man, woman and child) in UK. Whereby, almost everything is being decided increasingly by the EU, everything, from the air to how straight bananas should be. In addition, in the case of Stoke- on-Trent CC v B & Q plc (1993) [15] , the then Mr. Justice Hoffmann, commented that “… [Subject to the right of withdrawal theory] Parliament has indeed surrendered its sovereign right to make laws contrary to matters concerning of matters on social and economic [that is regulated] to the provisions of the Treaty.” And constitutional writer, De Smith, commented on UK’s membership in to EC, by stating that “… The UK Government has seated the Parliament on two horses. One is straining towards the preservation of Parliamentary Supremacy and the other horse is galloping towards the direction of the EC law supremacy.” [16] These two quotes reveals the impact of the EC law towards the doctrine of Parliamentary Sovereignty in UK and its issues has also somewhat relevance to the case of Thoburn (2002) [17] . In Thoburn, Trading Standards Officers prosecuted a Sunderland Market trader for the reasons of using imperial and not metric measurements and was found to be in breach of the requirements in EC law. The courts confirmed that, where, the requirements in EC law is conflicting with UK practices, the EC law would prevail, despite attempts made by Thoburn’s counsel to invoke the strict view of the sovereignty of Parliament. The ECJ, in the case of Commission of the European Communities v Council of the European Union (2005), seems to have taken a further step to allow the EC Criminal Law to be asserted and also to make sure that the rules on environmental protection were to take its full effect to all Member States. According to the Times Newspaper [18] , ‘this lamentable judgment has indeed struck the heart of national sovereignty and also towards Britain’s capability of deciding and making laws for itself”. Surprisingly, academics seem to be not angered or even surprised but merely pointed out that, in their view, the ECJ has merely recognised the lack of competence in UK’s criminal law and that it is just an international level proposal that was agreed upon. Besides that, Treaty provisions is to be treated as part of national laws and would take precedence over any national law that is conflicting with it and the EC Treaties are the primary sources of the EC law.
The Lisbon Treaty is considered to be the most controversial to date however. And according to the Times Online [19] Mr Hague, which as a Shadow Foreign Secretary has forced the then Government to accept a referendum towards the treaty under the Conservative campaign, commented that, “If (Ex-PM Gordon Brown) signed the Lisbon Treaty, the so renamed EU Constitution and backed it so much that he’s ready to break his manifesto promise…(and) If he’s ashamed of signing this Treaty then why doesn’t he honour his election promise and let the British people have their say?” The Lisbon Treaty was still signed by the Labour Government and this shows the abandonment of their election manifesto, which is to have a referendum to the people. Thus, this brings the issue of, if referendum is the answer? Is the Act proposed by MP Cash, the solution for UK to come out of its dilemma? According to him, the United Kingdom Parliamentary Sovereignty Bill 2009- 2010 is a practical way and is of utmost importance as it contains fundamental issues that needs the voters to decide as to ‘which laws would they (the voters) prefer to be governed under’ [20] . The solution proposed by MP Cash is, under Section 2 (a.) and 2 (b.) of the 2009- 2010 Bill [21] , is, to have a referendum in the UK before the minister is to ‘sign or implement any changes in a treaty or law that are inconsistent with the doctrine of Parliamentary sovereignty or that which would increase the functions of the European Union (EU)’. Also, under Section 3, the Act is to be effective by the courts regardless of (Section 3 (a.)) European Communities Act 1972, any exercise of international law rules or prerogative and even any Act of Parliament or future Bill that would amend the contents unless expressly stated and subject to a referendum as well under Section 4. However, the main issue here would be whether this solution would enable UK to come out of its dilemma? According to MP Cash, the limitations of Parliamentary sovereignty would be improved but if ignored, it can create no stability in UK and may create a ‘vacuum that might be filled with rioting in streets’. But it should be noted that, a referendum is time consuming and costly. However, the ultimate reason of restoring ‘democracy and economic balance’ in UK should prevail and thus preventing UK from a further ‘disastrous failure’. Also, referendums are very much democratic as they include the people and their views or the purposes of legislation by Parliament. Referendums have been used mostly on issues concerning constitution, and in the UK, a referendum in 1975 relating to UK’s membership to European Community. However, it should be noted that, a referendum would not be legally binding to the government of parliament and so the parliamentary sovereignty is maintained in this sense. This is because people’s opinion is just considered to be morally binding.
But, though the people’s opinion is just morally binding and not legally binding, people’s sensitivity still play a huge factor when it comes to ‘making of laws.’ The very recent Europe-wide protest in Brussels (29/9/2010) [22] is one example. But the results of the 2010 UK elections [23] , and where Labour suffered a huge blow for the ‘guillotining of Bills’, dragging UK to war and ignoring their election manifesto are clear examples of the democratic power of the people. Furthermore, ignoring the concept of parliamentary sovereignty is also like ignoring the ‘freedom of choice that people have’ [24] and also the democracy element that it represents. In conclusion the solution proposed by MP Cash under the UK Parliamentary Sovereignty Act, should be a good solution to uphold the centuries old of UK’s pride, the doctrine of Parliamentary sovereignty. It should be noted here that, very recently, there has been a Bill (European Communities (Amendment) Referendum Lock Bill [25] , included in the Queen’s Speech on 25th May 2010) that is still in progress but aims to also give more powers towards parliamentary control towards the EU when it comes to making decisions and to also make sure that there would be no powers being transferred to the EU unless a referendum is made. The Bill has the aims of including the people to be able to have ‘more say’ and emphasises on having referendums to ensure that there would be no extra powers moving to Brussels from UK, thus, protecting the Parliamentary sovereignty. Also, there would be amendments made to the ECA 1972 made to this Bill, to ensure that a referendum to be made before important proposals like a ‘proposed future EU Treaty or amendment to it” takes place. Lastly, referendums should be an effective tool as Parliament is not only including the Queen in Parliament but also the electorate, Commons and the Lords into its ‘redefined’ composition.
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