Limits To Parliamentary Sovereignty

Introduction

The parliament, which is the principal law making authority in England, has been considered to be sovereign, wherein parliamentary sovereignty has been defined in the traditional sense as the supreme law of the land (Slapper & Kelly, 2009). The statement that Parliament is no longer supreme may be justified to a great extent based on the development of the EU law sovereignty, which is applicable to English legal system as well as the development of the principle of rule of law (McIntyre, 2018). This essay will first discuss the principle of parliamentary sovereignty, before discussing the limitations on parliamentary sovereignty as presented in the form of international law (specifically EU law) and the principle of rule of law. Based on this discussion, the conclusions of this essay are drawn at the end.

Parliamentary sovereignty has been defined in the traditional sense as the supremacy of the law made by the parliament. This has three implications: first, that parliament can legislate on any matter without any restrictions on its powers; second, that parliament cannot bind its successors by its acts; and third, that the validity of the Acts of the parliament are beyond judicial review (Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568, 2003).

While the above is the traditional concept of the principle of parliamentary sovereignty as is applied in the English legal system, this doctrine has faced challenges in recent times, particularly due to the application of the EU law, implemented through two important legislations, the European Communities Act 1972 and the Human Rights Act 1998 (Fenwick, 2007). Section 2(1) of the European Communities Act 1972 allows the judiciary to review parliamentary law on the basis of incompatibility with EU law thereby allowing EU law to have ‘direct effectiveness’ that is direct effect can be provided by the courts (Broadbent, 2009, p. 7). Similarly, Section 4(2) of HRA 1998 allows courts to make declarations of incompatibility between statutory law and the European Convention of Human Rights (ECHR) (Lee, 2018, p. 177).

These legislations have allowed dilution of the principle of parliamentary sovereignty because they allow the courts to review the legislations enacted by the parliament on the basis of their compatibility with the EU law. In Council for Civil Service Unions, the court allowed judicial review on ministerial action authorised under the Royal Prerogative (Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 HL, 1985). In R (Factortame Ltd), the House of Lords suspended a domestic legislation for its lack of compatibility with EU law (R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70., 1991). Similar judgment proceeded in R v Secretary of State for Employment (R v Secretary of State for Employment, ex p Equal Opportunities Commission (1995) 1 AC 1., 1995). Such cases have led to the contention that there is a dilution of principle of parliamentary sovereignty (Turpin & Tomkins, 2007, p. 697).

It may be argued that the application of EU law in the English legal system, particularly the human rights jurisprudence, is a result of the enactment of legislations by the Parliament itself, which give the judiciary the power to declare incompatibility between the English statutes and EU law. In other words, parliament itself legislated to limit its sovereignty and may in future legislate to reclaim it. This argument is based on the premise that as there is no written constitution in English legal system, parliamentary sovereignty is simply a belief or a hypothesis, which may be altered (Alder & Syrett, 2017, pp. 163-165); and such alteration can come from the parliament itself (R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70., 1991). This argument seeks to place parliament in charge of deciding whether it wants to dilute its own sovereignty or not; in effect, arguing that even if parliament is not sovereign, that itself is the wish of the parliament, which may be changed by the parliament.

The enactment of the European Communities Act 1972 and the Human Rights Act 1998 can be used as examples that support the above argument that parliament can take away or make its own sovereignty (Adams, 2018). However, this argument may be misplaced because English courts have used the EU law of human rights to define the scope of the rights in England even before the enactment of HRA 1998; this point was made by Lord Bingham in Chief Constable of Kent Constabulary, where he observed that despite Article 5 ECHR not being a part of British domestic law, it embodied principles protected by the English law (Chief Constable of Kent Constabulary v. Kent Police Federation Joint Branch Board and Another [2000] 2 Cr.App.R. 196, 2000). This brings the discussion to the principle of rule of law, which may allow dilution of parliamentary sovereignty even in the absence of EU law applicability as may happen in the event that Britain leaves the EC.

The principle of rule of law can be used to explain how Parliament’s sovereignty has been diluted over a period of time. To some extent, rule of law as a limitation on parliamentary power is not a new concept as the idea was also noted by Sir Coke in a case where he observed that the common law can control Acts of Parliament, and sometimes adjudge them to be utterly void, under circumstances where Act of Parliament is against common right and reason, repugnant, or impossible to be performed (Dr Bonham’s Case 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 638 (1610), 1610). The rule of law is not defined in a statute; however, the recent Constitutional Reforms Act 2005, which confers statutory duty on the Lord Chancellor to protect the independence of judiciary, as per the oath taken by him under Section 17 (1) has been interpreted by Lord Bingham to mean that the task of defining ‘rule of law’ is left to the courts (Bingham, 2007). Lord Bingham has defined rule of law to include eight principles, with international law being defined as one of the eight principles (Bingham, 2007). In R v. Jones, Lord Bingham was appreciative of the impediment in applying international custom without parliamentary consent, therefore he proposed international law should be understood as a ‘source’ of English law (R v. Jones [2006] 2 All ER 741, 2006). This presents difficulties for holding the viewpoint that parliamentary sovereignty in the English law is applicable in the traditional or orthodox sense as it was earlier (Triggs, 2008).

The orthodox notion of parliamentary sovereignty, which describes the parliament as having no legislative superior and the courts having no power to invalidate, disregard or supersede parliamentary statute may no longer be correct because the parliament is bound by the laws made by the EU as long as Britain is a part of the regional organisation. It is also noteworthy that parliamentary legislation is open to review even if the courts can merely declare incompatibility under the European Communities Act or Human Rights Act (Bingham, 2010). Even the declaration of incompatibility under these laws go to dilute the parliament’s sovereignty because it shows that parliament is also subject to certain limitations provided by the operation of the European law. In other words, the idea that parliament can legislate on any matter as a central notion of parliamentary sovereignty is under stress because parliament cannot legislate on matters that are directly contradictory to the European law as such legislations can be declared incompatible with the European law. Moreover, until Brexit takes place, the concept of supremacy of EU law is maintained as per the judgment of the European Court of Justice, which also enjoins upon the courts in Britain to give effect to EU law in their jurisdiction (Costa v Enel (1964) Case 6/64, 1964). However, in the event of Brexit, it is likely that the parliament will repeal the European Communities Act 1972, and because parliament cannot be bound by its predecessors, such a repeal would have the impact of restoring to the parliament its supremacy. The White Paper Legislating for the United Kingdom’s withdrawal from the European Union, notes that in the event of Brexit, Charter of Fundamental Rights will be removed UK law (Department for Exiting the European Union, 2017). The White Paper notes the intention to repeal the European Communities Act 1972, and to convert all of existing EU law into domestic law allowing the Parliament to repeal those EU laws that it finds inappropriate (Department for Exiting the European Union, 2017). However, there is no intention to repeal HRA 1998 allowing the ECHR to continue to have effect in the UK (Department for Exiting the European Union, 2017, p. 2.22).

To conclude, it may be reiterated that the orthodox reading of the doctrine of parliamentary sovereignty where parliamentary law is supreme and beyond review is not applicable under the present situation. This marks a shift in the idea of parliamentary sovereignty because parliamentary law is open to interpretation and review by the judiciary. This interpretation may be allowed under the statutes enacted by parliament itself or even be allowed by using the doctrine of rule of law.

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