Background To Parliamentary Sovereignty Law Public Essay

Published Date: 02 Nov 2017

Parliamentary sovereignty first took form following the Glorious Revolution of 1688, which transferred the UK into a constitutional monarchy by limiting the powers of the monarchy, and transferring some of the power to parliament. Over the years since the revolution, most of the monarchy powers such as having power over executive ministers or the royal assent power to various bills was slowly usurped by parliament. This eventually gave the parliament power to control various executive functions. The UK parliament is comprised of the House of Lords, the House of Commons, and the king or queen’s majesty. [4] These form the supreme authority responsible for making laws in the UK.

However, following the Parliament Acts of 1911 and 1948, the House of Commons limited the power of the House of Lords, thus reducing the checks and balances to the power held by the House of Commons. [5] Furthermore, with the decline of the royal executive power, in its place arose a powerful prime minister position, further consolidating the power of the government in the second half of the 20th century. Reddy argues that the flexible and uncodified nature of the UK constitution has given parliament much freedom and liberty to change and modify laws as they pleased. [6] The evidence of the extremity of this freedom is noted where in 1972; the Westminster Parliament dissolved the Northern Ireland Parliament, which had been in existence for more than fifty years. They created it again in 1973 as Northern Ireland Assembly, dissolved it in 1974, created it again in 1982, abolished it 1986, again created another in 1998, suspended it in 2002, dissolved it in 2003, and finally creating the one which is existing in the present in 2007. [7] In the recent past, there have been developments aimed to limit the parliamentary sovereignty such as the Human rights Act of 1998, the European Union membership, devolution of power to Welsh and Scottish parliaments, and the development of the UK Supreme Court in 2009. [8] 

The UK Constitution and Parliament Sovereignty

The UK constitution does not restrain the legislative power of the Westminster parliament. However, it restrains the government’s power using the rule of law where the administration is required to act within the set laws. [9] This implies that the action of the government is only limited within the law where the public officials are required to act within the requirements of the law and are further answerable to the judicial system. If the government is to act within the laws set, then it is important that the law itself must have certain standards such generality, certainty, stability and "non-retroactivity" which note to be "the most fundamental condition". [10] 

Therefore, the essence in understanding whether the UK constitution allows the government of the day too easily to remould constitutional issues in ways which suit their own interests can best be understood by evaluating various sides and theories of the debate regarding what powers the Westminster Parliament has, and what exactly Parliamentary sovereignty entails. Based on the Diceyan theory, Parliamentary sovereignty means that they "can make and unmake any law whatsoever". [11] This implies that parliament makes laws parliament as it wills. Packman notes that parliamentary sovereignty is mainly applied in two key ways: first is that the parliament can make any law it wishes and second, the law is supreme above all others in the land. [12] This implies that the Parliament is both a legislative authority and a major source of those in the UK constitution. [13] Since the parliament can repeal or make any law they wish, the UK constitution is a large extent the summation of the various laws passed by parliament, since theoretically such laws are automatically constitutionally due to their supreme nature. The laws passed by parliament may not necessarily be just, and this mainly forms the basis upon which most criticism regarding parliamentary supremacy has been based.

Based on the Diceyan theory, UK courts have no power to invoke any common law to show that the statutes made by the parliament are unconstitutional. This is because "there is no higher form of law that the will of the parliament". [14] Dicey’s view have been analysed over the years, two opposing sides have developed regarding the parliament’s sovereignty to do as they will without checks. First, there are those such as Goldsworthy and Lord Bingham who have noted that absolute sovereignty as discussed by Dicey does not apply in the contemporary UK parliament taking into account the various constitutional processes that have taken place over the recent past. [15] Reforms such as devolution settlements to bodies such as the Welsh parliament have given such bodies the power to balance and check the interests of the people with regard to various parliamentary legislations. Furthermore, the development of the Constitutional Reform Act in 2005 and the Human rights Acts 1998 have played a key role in limiting parliamentary sovereignty. [16] The Constitutional reform Act puts in place the statute on the rule of law which emphasized on the significance of creating a UK Supreme court. The proposers of this view argue that such constitutional reforms show that Parliamentary sovereignty is not dictatorial or unchecked, and thus seek to show that parliamentary sovereignty is a critical part of the country and various bodies and functions such as judges "should be subservient to the legislative supremacy of Parliament". [17] 

The second view argues that Parliamentary sovereignty is "a construct of the common law". [18] Based on this argument, the court has an important role in reconciling contradicting laws. Turpin and Tomkins argue that the judiciary has an important role to play in as constitutional guardians in as far as reconciling and reinterpreting constitutional rules are concerned. This is as noted in R v Secretary of the Home Department, ex p Akhtar where the court reversed that burden of proof rule under the Immigration Act 1971. [19] The courts also maintain rules with regard to abuses of administrative power and malpractices. However, the role of the judicial system as guardians of the constitution is grossly limited since the parliament can reverse a ruling as noted in Khawaja v Secretary for the Home Department [20] where the court ruling on burden of proof as developed in R v Secretary for the Home Department was reversed.

The traditional argument based on Mortesen v Peters (1906) was that the law passed by parliament was supreme and could not be questioned by various processes such as the judicial review. [21] The basis by which sovereignty in this regard is often measured is "whether there exists another authority which can challenge the legislative authority of parliament". [22] It is widely argued that the UK parliament can make or repeal whatever it wills, and no other law can overrule the law made by parliament, except the parliament itself since no law can bind a succeeding parliament. While this limits a previous parliament’s power to have a permanent law, it increases the sovereignty of any parliament in office since its power is not limited by previous legislations.

Experience with regard to how parliament has operated in the UK shows that the parliament has played a very prominent role in the development of the UK constitutions. It has practically been the dominant source of laws, whether directly or not, mainly because of the limits of constraints or opposition it faces. In areas where opposition is faced, the parliament has historically developed laws which limit such opposition as is the case of the parliamentary Acts of 1911 and 1945, or the development of a plethora of laws such as the Local Government Act of 1985 developed as a result of disagreements between the parliament and the Greater London Council. [23] 

It is the apparent lack of limitations of parliamentary powers that fuels the belief that Parliament can make whatever law they wish without any limitations. Even the developments to limit the parliament’s power have mainly been self inflicted. For instance, Parliament decided to join the European Community and adopt the European Communities Act 1972 which was applied in the Factortome case. In the Factortame case, the ruling judge sets precedent "to override any rule of national law found to be in conflict with any directly enforceable rule of Community law" as noted in the European Community (EC) Act. [24] In this case, the court suspended a Parliamentary Act and enforced the EC Act. However, since the Parliament theoretically and practically is the supreme lawmaker and is not bind with previously made laws, a succeeding parliament may decide to withdraw from the European Community membership. This also applies to the Human Rights Acts of 1998. While these laws may limit parliamentary sovereignty, they do not per se undermine it, since the parliament can still amend or repeal various laws which impacting these statutes.

The parliamentary sovereignty is often in the hands of the executive since in theory and practice an executive with a majority in the House of Commons can strongly influence the direction of law. The House of Lords is constrained by the two Parliamentary Acts in obstructing legislation made by the House of Commons from being signed into law. The issue of parliamentary sovereignty was considered in Jackson v Attorney General which questioned the validity of the Hunting Act 2004. The issue was with regard to how the Parliament Acts were to be interpreted. [25] Lord Steyn noted that Dicey’s assertion in the contemporary UK parliament was an outdated assertion, while the parliamentary supremacy was "a construct of the common law". [26] Based on this view the courts in certain circumstances such as the Fatortame case may reconcile statutory provisions which are contradicting. [27] 

However, Murkens took issue with these assertions noting that the practice in parliamentary sovereignty in modern UK is still as it was described by Dicey. He argued that even though the judiciary system has a crucial role to play in protecting the people’s rights from the abuse of a constitutionally powerful government, which no one can still go against the will of the parliament given out through statutes. Even though the rule of law is an important factor in limiting the Parliament's power, it may only be relevant if the parliament respects the law. [28] However, since the ability to restrain law passed by the majority House of Common members is weak constitutionally, then even the rule of law can face the risk of being subordinated to the government will.

This was evident in the recent Prevention Terrorism Act 2006 which infringes on civil liberties by requiring that people may be detained without charge for twenty eight Days. [29] In order to reduce the challenges which may have barred the adoption of the Terrorism Act, the government used Article 15 of the EC Convention to derogate from Article 5(1) which requires adherence to the rights and liberties of people. [30] While this was challenged in the A v Secretary of State for the Home Department case where the House of Lords found the derogation by the government to be unlawful, [31] Parliament replaced the idea of detention without charge with new rules based on control orders which may still be controversial to human liberties and rights. [32] While the rule of law and separation of powers may be viewed as crucial factors in ensuring justice and liberty, they are essentially not adequate enough to guarantee this. This is because with regard to the rule of law, [33] the parliament can easily pass a new law to make an old one more flexible to the needs of the present government, while where separation of powers is concerned the parliament can still easily dissolve any bodies it will as noted in the Northern Ireland over the years. The core points in the Jackson case and which Lord Steyn may have been trying to make is that, the only way to ensure that the government does not abuse its legislative power ultimately lies in also having a powerful judiciary which can question and review various legislations made.

Conclusion

The constitution in the UK is highly influenced by the parliament. Even though the parliament places limits on the level of power that the government can hold, it does not limit the legislative power of the parliament. The power which the government of the day can exert is highly dependent on the stability of the laws set by parliament. However, since the parliament has sovereign power to influence what laws are made, it also implies that the ruling government which often has the majority in parliament may easily remould constitutional issues in ways which suit their own interests. This to some extent aligns to Dicey’s theory with regard to parliament having the authority to formulate any law it wills. However, to a small extent, parliament sovereignty as depicted by Dicey has been limited by various constitutional reforms which took place in the last four decades. Laws such as Human Rights Act and the EC Act have had some influence on how the law is applied in the UK. The UK courts have been playing an important role of reconciling conflicting laws due to these new reforms, even their powers to overturn a Parliament Act are grossly limited. However, the judicial body is the best controlling body to ensure the government does not abuse its legislative power.