The UK Constitution confers Parliament sovereignty, which cannot be overridden by the courts or any other rules. However, membership of the European Union makes the EU law supreme and it cannot be overridden.
This essay will explore the extent of the Parliament Sovereignty and EU supremacy and the challenges arising between the two doctrines.
Parliamentary sovereignty is derived from the Constitution. The Parliament possesses the ultimate power. It applies laws equally to everyone. The rule of law thus governs the nation. This rule of law is recognised by the Constitutional Reform Act 2005. Its Section 1 provides that the Act does not adversely affect the “constitutional principle of the rule of law”. The doctrine of Parliamentary sovereignty requires the courts to obey statutes. Any rules by external bodies cannot override this doctrine. If you require politics dissertation help, our experts are there to provide the most comprehensive help that is tailored according to your requirements.
The supremacy of the Parliament gives lesser power to the courts over the Constitution. This is recognised in the statutory Literal rule that requires the judiciary to give legislative words their plain, ordinary or literal meaning. As such, the courts cannot review of what the law ought to be.
One aspect that could disrupt the Parliament supremacy could stem from Human Rights Act 1998 (“HRA 1998”). HRA 1998 incorporated the European Convention of Human Rights (“ECHR”). The UK Parliament must ensure compliance with these Convention rights. To do so, the courts must scrutinise any new legislation compliance with the Convention rights. This is provided under Section 3 of the HRA 1998. Section 4 also empowers court’s intervention where there are ambiguous languages of a statute or any unpredictable factual situations. As such, it could be stated that the greatest or the most controversial challenge to Parliamentary sovereignty is posed by UK’s membership of the European Union.
EU law is supreme over laws of member states. The reasoning is given by European Court of Justice (ECJ) that being a member of the EU, member states have transferred their powers to the EU. As such, the doctrine of EU supremacy is placed on states’ sovereignty. The goal is to ensure efficiency, independence and uniformly application of EU law. As such, ECJ held that EU law occupies a core part in domestic laws. Domestic laws cannot precede EU law.
Declaration 17 of the Lisbon Treaty provides for supremacy of EU law. The settled case laws and conditions of ECJ form the foundation of this doctrine. Thus, in the event of conflict, EU law holds supremacy. This is supported by the ruling in Larsy, which stated that administrative bodies cannot apply domestic laws in conflict with EU laws.
It is, thus, observed that membership of the EU has created a profound consequences against the UK constitution. The base lies in the principle of EU supremacy and direct effect of EU law. The latter enables individuals to exercise rights, which must be upheld by the national courts. There are multiple cases that demonstrate these aspects. For example, the case of Costa has demonstrated this. The case of Van Gend & Loos NV established the doctrine of direct effect. Any provision that is given a direct effect must be applied by domestic courts. The courts do not need to refer to any national law.
Further provision of EU that ensures it supremacy and dents UK Parliamentary sovereignty stems from Article 267 of TFEU. This Article provides authority to ECJ to issue preliminary rulings on treaty interpretation. ECJ can thus validate acts of EU institutions and including national measures.
The incorporation of ECHR in HRA 1998 has ensured the UK Parliament to comply with Convention rights. This has opened the Parliament to judicial scrutiny. As such, decisions of ECtHR have impact on the Parliament and its judiciary.
Existence of multiple cases where the ECtHR has ruled violation of ECHR principle by British law or a state action is testimony to the challenge against Parliamentary sovereignty. These rulings force the government to make necessary law amendments in order to meet the compliance requirement. In case of breach of Convention rights, the domestic courts must determine the case before the case goes to ECtHR. Further, parties can access residual rights to access ECtHR. The compliance requirement by the Parliament, the power of the court and the rights of individual are elements that can override Parliamentary sovereignty.
Parliament’s obligation to ensure compatibility with ECHR rights place the UK Parliament in a subservient position. Section 2 of the HRA 1998 is an example. It provides for interpretation of the Convention rights in accordance with ECtHR ruling. This is supported by the case of R (Ullahr, where it was ruled that a domestic court must not dilute decisions of ECtHR without showing strong reasons. It further ruled that the Convention rights must not be interpreted in a different manner.
Alternative argument could be that the Parliament could alter its basic requirement, just like it did with HRA 1998, for lawmaking. It could redesign to impose restraint on enacting legislation. They did not by limiting freedom of future Parliament in regard to certain particular laws made by the EU. It could override EU law by repealing the European Communities Act 1972.
EU is supreme until the hierarchical structure conferred by the UK Constitution provides so. EU membership makes EU law override UK rule of law. However, this is only possible to the extent the UK Parliament allows. Principles of compatibility, compliance and subservience are as long as permitted by Parliament.
The Constitutional Reform Act 2005
The European Convention of Human Rights
The European Communities Act 1972
The Human Rights Act 1998
The Lisbon Treaty
The Treaty on the Functioning of the European Union (TFEU)
Flaminio Costa v Enel, [1964] ECR 585 (6/64)
Gervais Larsy v Institut national d'assurances pour travailleurs indépendants (Inasti), Case C-118/00 [2001] ECR I-5063
Ullah v Special Adjudicator [2002] EWCA Civ 1856
Van Gend & Loos NV v Inspecteur der Invoerrechten en Accijnzen, Enschede Case 32/84
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