Parliamentary Governance Essentials

Introduction

In a parliamentary governance system, a parliament is a legislative body of government with duty of making laws and ensures accountability to the policies and laws of the land. In countries such Britain in which democratically system of government rules, the party with majority informed by the greatest representation in the parliament forms a government (Birch, 2013). Importantly, the majority party oversees the regulations, policies, and laws introduced by the government as well as ensuring the enacted laws are executed accordingly. Nevertheless, the other representatives who are not members of majority party serve in opposition to the government of the day and have a duty to hold it accountable. In the UK, the concept of a parliamentary system is rooted on the Constitution that provides establishment of institution such as parliament, judiciary, and executive branches of government with roles and duties each having outlined. In addition to outlining the roles of each such as enacting, implementation, and execution of law, the constitution provides relation between the governed citizens and the institutions as well as among constitutionally established institutions. Fundamentally, as elaborated by Martin and Stevenson, idea behind of the parliamentary system, the parliament has authority to enact, repeal, or amends legislation and importantly it is not under the traditional, written, or precedent law.

The rule of law encloses the principle that the laws enacted within a given jurisdiction and boundary binds all the people and institution equally and fairly. In essence, as pointed by Bingham, it holds that “no one is above the law”. The principles of rule of law provide checks and balance between government institutions that include the executive, judicial systems and legislative body in attempt to foster accountability. According to Raz, effectiveness of the rule of law lies in the transparency of law, equality under enacted laws, and independence of law enforcing bodies. Under law, parties are said to be in disputes when one party hold perspective different or denied by the other party but both argue respective stand with reasons and evidence. Folberg described a dispute as a disagreement or conflict of claims by parties holding contrary views or ideology.

Compatibility of parliamentary sovereignty with rule of law

The concept of parliamentary sovereignty is founded on the democratic form of governance where the parliament as a legislative body has absolute autonomy and holds authority over the other government arms and institutions including judiciary and executive (Golder et al., 2012). Moreover, Goldsworthy pointed out that it holds that the executive or judiciary cannot block or by-pass the legislative body from enacting or passing a law. In a democratic parliamentary system, such checks and balance embodies separation of powers and are evidenced where the courts hear challenges and determine the constitutionality of law and actions of the executive branch of government. Lord Templeton, in the case M v Home Office and another, stamped this authority after he held Kenneth Baker, the Home Secretary, in contempt of court ruling after failure to follow court’s directive to overturn deportation of Zaire teacher from the UK. The court held that for the purpose of enforcing the law, all government institutions that include the judiciary, parliament, and executive must respect the decision made by the court within the lawful province, and the court will follow and respects all acts parliament and executive. Therefore, under duties and roles as outlined by law allows a government to maintain a proper constitutional relationship between its institutions as well as the citizens.

Under the rule of law, a government of the day cannot use its power arbitrarily but acts within the constraints of the enacted law. The idea is rooted on the grounds that creation of laws, execution, and enforcement are guided by the established legal rules and procedures as well as relations between constitutionally recognised bodies in a matter that no one is above the law. The application of the equality under the law holds that no person or institution that includes executive or Her Majesty’s government shall enjoy more privileges than those extended to general population or immune from it.

However, ideally, the principles of parliamentary sovereignty does not allow, in anyway, the constitutionally established institutions such as courts or executive to give directive or make decisions binding the parliament but rather the law making process is arbitrarily an autonomous process not linked to precedent decision or constraints of any other law. The introductions of the ECA 1972 challenged the sovereignty of the UK parliament by dictating that law enacted by European Community (EC) have precedence over national laws and interpretation of the laws by member’s courts.

Moreover, the 1998 Human Rights Act challenged the principles set by Act of Parliament as not subject to higher law such as common law or constitution by altering such view constraining the protection and amended of laws related to human rights. Feldman (1999) and Young (2008) observed that the emphasis of protection of human rights by ECHR puts into question law-making powers of the parliament to the point where it cannot enact laws contravening the conventional rights. In the R (Ullah) v Special Adjudicator case, Lord Bingham argued that interpretation of the convention should not take less or more approach. He held that decision made by the national courts should be clearly and constantly encompasses the jurisprudence of the Strasbourg court stating, “The Convention is an international instrument, the correct interpretation of which can be authoritatively founded by the Strasbourg courts.”

Jennings asserts that the idea is founded on facts that courts make decisions based on the law and Acts enacted by the parliament. However, Dicey and Wade contends it is enshrined in the common law that in turn informs the UK constitution. As pointed out by Abdelaal (2016), although there exist such statutory provisions as entrenchments clauses and prospective formulae, which attempt to protect amendment or repeal of an Act of Parliament, it provide that special procedures must be followed rather than limiting the powers or supressing the authority of parliament.

In essence, the Act outlines that the UK national courts should interpret common and other statutory laws with respect to its provisions unless they are so ‘clearly incompatible’ with the Convention. This view puts into question the sovereignty of the UK parliament as a supreme body because its statutory law on such field as human rights have to be questioned in relation to the Convention. The interpretation of the ECA is based ‘ordinary methods’, Convention rights, and interpretative obligation. Regina v A (Complaint’s Sexual History) illustrate the interpretive approach taken by court in enforcement of statutory law and observation of human rights under ECA provision. Under Section 41(3)(c) ‘rape shield’ of the Youth Justice and Criminal Evidence Act 1999, individual’s defence are restricted from ‘harassing’ unfairly the complainant by questioning about previous sex experiences on a rape case (Young). In the case, the House of Lord were required to determine the extent to which the rape shield was compatible with admissibility of the evidence and question of fair trial. The court observed that in line with the statutes on human rights and decisions on fair trial as provided by under Article 6 of the European Convention of Human Rights (ECHR), the right to fair trials should take the accounts of the “familiar triangulation of the interests of the accused, the victim, and society.” The unprecedented interpretation to allow cross–examination of compliant ensured compatibility of Article 6 of statutory human rights with ‘rape shield’ and fostered fair trials.

Preservation of Rule of Law in a Brexit Scenario

Being an unwritten, the UK constitution is founded on the rule of law and the parliamentary sovereignty. As such, separation of power held by executive (Her Majesty’s government), the UK parliament, and Judiciary lies in the statutes, case law, political conventions, and social consensus that include the law enacted by EU parliament and EU court ruling. As such, the European Communities Act 1972 made the EU law part of the UK law. Therefore, one can argue the prerogative powers cannot be executed within the UK without infringing on the statutory rights of its people. According to the High Court, only the parliament held the power to invoke Article 50 through Act of Parliament and not the executive branch of government.

The rule of law restricts the government from arbitrarily exercise respective powers without regards to the enacted laws or constitutionally established institutions. In line to Brexit proceedings where 51.9% of the voters voted to leave the European Union (EU) while 48.1% voted remain, the opposition has a duty to represent the views of those who voted in favour to remain in addition to ensuring truth, laws, and regulations are being followed in the best interest of all and of the country. As pointed by (REF), opposition has a duty to challenge the policies they consider harmful to the people and UK’s future. The Supreme Court ruling that withdrawal from the EU can only be done after permission from the UK parliament officially notifying the government to do so. Although the government argued that moving forward to invoke the Article 50, a formal treaty on EU outlining withdrawal procedure of a country from the EU, without involving the parliamentary representation was within the prerogative powers of enacting 2016 Brexit referendum results. It perceived this a consistent with the domestic law. However, the plaintiffs to the case argued that it set precedent to the limits of the executive as outlined by the constitution. The argument held was that the government cannot use prerogative power to execute or infringe on the people’s right as previously established by the parliament whether the UK or EU parliament. The R (Miller) v Secretary of State for Exiting the European Union case presented a constitutional dispute between the scope of prerogative power held by Her Majesty’s Government and statutory rights established by Act of Parliament, especially on the rights outlined by the European Communities Act (ECA) 1972. Although the ruling put in question the Crown decision-making and advices, which is largely based on the continuity of ‘best practices’ and conformity to traditional moral convention and core component of the UK constitution, the rule of law requires adherence to enacted laws such as European Communities Act 1972.

Prorogation of the parliament by the executive arm of government through the advice of the Crown brings to an end business of the parliament. The recent attempts by the government of Boris Johnson to adjourn the parliament received a lot of criticism. It was seen a way of forcing the Brexit framework without an oversight of opposition in the parliament. Although the government argued the approach gave the prime minister an opportunity to focus on the domestic policies, the Supreme Court overruled the prorogation stating that it infringed on the duties of the parliament. One can argue that the adjournment of parliament in attempt by the government to by-pass vote against a proposed deal was a gross misconduct against propagative power where the prime minister moved with ‘self-interest’ and non-justiciability rather than that of the country and its citizens. Assumption of the political convention by the majority representation in parliament limits controlling or regulating such actions. In determining that the action was not justiciable and ‘improper purpose’ of exercising prerogative power by the government can be viewed as a show of abuse of power and disregard of rule of law. Under the common laws, the decision to prorogue is an executive power and the parliament cannot vote against it.

As pointed out by Heery, most of the UK workplace norms such as working hours, employee’s right, and employer-employee relation are rooted on the EU employment law. Gumbrell-McCormick and Hyman suggests that the EU employment law will have play a major role in the post-Brexit. To some extent, the framework (no-deal or deal) approved by the UK government through parliament decision will determine the workers protection approach. Ideally, the decision to preserve or amend the current law will purely depended on the parliamentary representatives’ view on the best interest of the country and its citizens. Nevertheless, international human rights in addition to precedent court decisions have a key role in determining nature of protection the future Acts and law enacted by UK Parliament especially given that courts can give directive on matter affecting the human rights. For instance, the 2000 EU directive on discrimination protected employees from discriminated based on religion, age, sexual orientation, part-time, paid holiday and leave, fixed-term worker, and the right to rest breaks.

Conclusion

The idea of parliamentary sovereignty recognises that the parliament procedures and business are not subject to previous proceedings or make decisions binding the future parliament’s decisions or procedures. There are three theorised principles upholding parliamentary supremacy. First, legislative body is the supreme law-making body with duty of enacting laws. Secondly, a parliament of the day is not subject to its predecessor. Lastly, government institutions that include courts and executive cannot question the validity of laws enacted by a parliament. Through the parliamentary system, representatives in the parliament are given an opportunity to use the standards to challenge the policies and directives taken by government in the best interest of the people and the country. The guiding principles of rule of law emphasises on view that people in authority should exercise constitutionally given power within established framework and norms rather than personal views or ideology and are accountable to it. Arguably, the law making process is not as autonomous as ideally intended to be but rather subject to precedent Acts

Under the rule of law, the UK Prime Minister is obligated to follow the court ruling and acts according to the direction of established or enacted laws by the parliament. The rule of law does not outline the framework in which Brexit should take. However, it sets standards in which the established institutions that include the executive, parliament, and judicial system can and should adhere to in order to ensure its compatibility to the UK’s statutory and common laws. The balance between business flexibility and worker protection that is sourced from the EU law informs the UK law related to the employment issues. The EU employment law protects the rights of the workers within the union members providing the terms of work and working time. The extent to which the withdrawal of UK from EU will affect the future employment law in the country is not clear because since 1973 the EU law has been key to the UK court’s decision-making. Currently, EU allows its nationals to enjoy freedom of movement and have a right to work and live anywhere within the union, including the UK. However, the withdrawal agreement proposes closing of bordering restricting the freedom and rights currently enjoyed for both the UK citizens and other EU nationals. However, concept of the parliamentary sovereignty holds a core factor in future law and policies given that formulation of employment legislation is not based on the past law, Acts, or legislation rather than best interest and traditions of the country.

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