The Doctrine of Parliamentary Sovereignty

Introduction

The doctrine of parliamentary sovereignty is a well-established convention of the British constitution and has been described by Lord Bingham as the “bedrock of the British Constitution.” However, there is an argument that due to the application of the European law and the membership of the European Convention of Human Rights, judiciary in the UK has been able to play a role in constraining the freedom of the British parliament. This argument is based on the premise that the dimensions of judicial review are broadened and the courts have used judicial review to restrict or constrain the functioning of the parliament. While this argument may be correct to some extent, it is argued in this essay that it is the parliament that has allowed the courts certain powers through the application of statutes like the European Communities Act 1976 and the Human Rights Act 1998. In other words, whatever restrictions that have been created for the parliament are the construct of the parliament and does not mean that parliamentary sovereignty is diluted in the traditional sense.

Judicial review and parliamentary sovereignty

The first notable case where the extent of judicial review of the law of parliament was explored was Dr Bonham’s Case, in which Sir Coke had noted that the “common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.” Sir Coke appeared to be saying that judiciary can declare parliamentary law to be void under certain conditions. In the many centuries after this observation, there have been no notable instances where the judiciary has struck down parliamentary law as void. However, the application of the European law has led to some changes in how the judiciary approaches parliamentary law.

In the traditional sense, the doctrine of parliamentary sovereignty includes three precepts. One of these precepts is that the law made by the parliament is outside the scope of judicial review. Because parliamentary sovereignty means that the parliament is supreme, the doctrine leads to the traditional conceptualisation of parliament as a body whose powers are unrestricted, which means that there can be no constraints on the powers of the parliament, which is the second precept of traditional doctrine of parliamentary sovereignty. The third precept of parliamentary sovereignty is particularly important in the context of the argument presented in this essay as this is the precept that the parliament cannot bind its successor. Therefore, even if there are some laws made by the parliament, such as the European Communities Act 1976 and the Human Rights Act 1998, which have allowed the judiciary to constrain parliament, these laws can be repealed by the future parliament. Therefore, even if there is an argument that the judiciary has played a role in restricting parliament, this does not mean that the traditional precepts of parliamentary sovereignty are changed.

It may be argued that the principal challenge to the traditional reading of parliamentary sovereignty is from the notion that the European law is supreme, which has had certain implications for how the judiciary in Britain approaches parliamentary law. Parliamentary

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1. Jackson v Attorney General [2006] 1 AC 262, [1].
2. Helen Fenwick, Civil Liberties and Human Rights (Oxon: Routledge 2007).
3. Dr Bonham’s Case 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 638 (1610).
4. RH Helmholz, ‘Bonham’s Case, Judicial Review and the law of nature’ (2009) 1 (1) Journal of Legal Analysis Winter 325, 327.
5. Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568.
6. Albert Venn Dicey, Introduction to the study of the law of the constitution (London: Macmillan 1915).
7. Hilaire Barnett, Constitutional & Administrative Law (Routledge 2014)129.

sovereignty in the traditional sense means that the parliament has no superior including the judiciary. The shift in this notion has come from the parliament itself passing legislation to support its European membership; primarily two parliamentary laws may be discussed in this context. The first is the European Communities Act 1972; this law has a provision allowing the judiciary to consider the compatibility between parliamentary law and European law and to give ‘direct effect’ to European law through the interpretation of the domestic law in a way that aligns with the European law. In a way, this law has allowed the European law to take precedence over British law and also to constrain the parliament in its functioning. The case law actually demonstrates how this has happened; for instance in R (Factortame Ltd), the House of Lords for the first time referred a domestic law to the European Court of Justice while also suspending a domestic legislation on the ground that the latter was contrary to the European law. In R v Secretary of State for Employment as well the courts have taken the same approach to testing domestic legislation on the basis of European law. These judgments made under the parliamentary legislation of the European Communities Act 1972 Factortame and R v Secretary of State for Employment, suggest that the doctrine of traditional parliamentary sovereignty may be eroded. However, as these decisions are based on the powers given to the judiciary by the parliament itself, it may be argued that based on the third precept of parliamentary sovereignty, which is, that the parliament cannot bind the successor, these powers can also be abrogated by a future parliament.

The second legislation which has allowed judiciary to review parliamentary law on the basis of European law is the Human Rights Act 1998. Section 4(2) of this Act allows gives powers to the UK courts to make declarations of incompatibility between domestic legislation and the European Convention of Human Rights. Like under the European Communities Act 1978, this legislation has also been used by the courts in the UK to constrain the parliament from making law in an unrestricted manner. An example can be seen in the case of A v Secretary of the State (Belmarsh case), wherein the House of Lords held that a counter-terrorism legislation allowing indefinite detention of foreign suspects was incompatible with the provisions of the European Convention on Human Rights. In the Attorney General’s Reference case, the House of Lords observed that the European law could override domestic parliamentary legislation. While these cases may be used to argue that judiciary in the UK has constrained the parliament in making the laws in an unrestricted manner as is provided by the traditional doctrine of parliamentary sovereignty, it is worthwhile to remember that these powers of the judiciary come from the parliamentary law itself, which the parliament may alter at any time.

In other words, without parliamentary law, such judicial review may not have been possible and even where it is possible, the law itself may change in future. The counter argument to the point that the judiciary has constrained the parliament and shifted the dimensions of parliamentary sovereignty is based on the fact that the UK does not have a written constitution; in this context, the doctrine of parliamentary sovereignty itself is just a belief or

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8. Tom Bingham, The Rule of Law (Penguin 2010).
9. European Communities Act 1972, Section 2(1).
10. Graeme Broadbent, Public Law Directions (Oxford University Press 2009) 7.
11. R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70.
12. R v Secretary of State for Employment, ex p Equal Opportunities Commission (1995) 1 AC 1.
13. Colin Turpin and Adam Tomkins, British Government and the Constitution: Text and Materials (Cambridge University Press 2011) 351.
14. Robert Lee, Blackstone’s Statutes on Public Law and Human Rights 2018-19 (Oxford University Press 2018) 177.
15. A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.
16. Attorney General’s Reference (No. 4 of 2002) [2004] UKHL 56.

a hypothesis, which may be changed or altered by the common law or by the parliament. Lord Bridge had made this opinion in Factortame, when he had noted that the parliament itself may change the doctrine of parliamentary sovereignty.

Another argument that is applicable to emphasise that the doctrine of parliamentary sovereignty is diluted by the role played by the judiciary is that the judiciary has chosen to review parliamentary law on the basis of rule of law. The Constitutional Reforms Act 2005 do confer statutory duty on the Lord Chancellor to protect the independence of judiciary under Section 17 (1); Lord Bingham has observed that the changes brought through the Constitutional Reforms Act 2005 suggest that ‘rule of law’ is to be defined by the courts. However, to what extent the courts would review parliamentary law based on concepts like rule of law is not clear. Judiciary in the UK has shown itself to be reluctant to review parliamentary law and even executive actions on a number of occasions. In Pickin v British Railways Board, the court held that judiciary may not review on the validity of parliamentary law. However, in Council for Civil Service Unions v Minister for the Civil Service (GCHQ case), the court did allow judicial review on ministerial action even when allowed by Royal Prerogative. In R (Gentle) v The Prime Minister, the House of Lords refused to authorise the setting up of an investigative panel to see the lawfulness of government’s decision to deploy personnel in Iraq. It may be surmised that even in the context of judicial review, the judiciary is more likely to review ministerial and executive action and that too on the basis of doctrine of ultra vires and not parliamentary law. This may be suggested by the fact that judicial review principles evolved by the common law over a period of time relate to administrative action and not parliamentary law. Cases such as Associated Provincial Picture Houses Ltd v Wednesbury Corporation (laying down Wednesbury principles), and Council for Civil Service Unions v Minister for Civil Service, (laying down the criteria for judicial review over executive actions that are illegal, irrational, and procedurally improper), indicate that the rules of judicial review are evolved for the executive action. On the other hand, where judiciary has reviewed parliamentary law, it has done so on the basis of powers given to it by the parliament itself under laws like European Communities Act 1976 and Human Rights Act 1998.

What can be surmised from the discussion in this essay so far is that the constraining function of the judiciary on the parliament has come primarily from the application legislations like the European Communities Act 1978, which allowed the judiciary to consider the compatibility of European law with the domestic law or to give precedence to the European law over the parliamentary law. However, in the event of British exit from the European Union (Brexit), which is now passed as a legislation in the parliament and approved by the European Union, it is likely that the parliament will repeal the European Communities Act 1972. Such intention of the government is already revealed in the White Paper Legislating for

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17. John Alder and Keith Syrett, Constitutional and Administrative Law (Palgrave Macmillan 2017) 163.
18. R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70.
19. Lord Bingham, 'The Rule of Law' (2007) 66 (1) The Cambridge Law Journal 67.
20. Pickin v British Railways Board [1974] AC 765.
21. Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 HL.
22. R (Gentle) v The Prime Minister [2006] UKHL 20.
23. T Wright, The Politics of Accountability, in M. Elliott, & D. Feldman (eds.), The Cambridge Companion to Public Law (Cambridge: Cambridge University Press 2015) 96.
24. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
25. Council for Civil Service Unions v Minister for Civil Service [1985] AC 374.

the United Kingdom’s withdrawal from the European Union. The White Paper reveals that in the event of Brexit, the Charter of Fundamental Rights will be removed from the UK law, the European Communities Act 1972 will be repealed and existing European law will be converted into domestic law, which may be repealed by the parliament. However, the White Paper also reveals that there is no intention to repeal Human Rights Act 1998; this means that Section 4 of the Act will still be applicable and allow the courts to declare incompatibility between the parliamentary law and the European Convention of Human Rights. However, it would be worthwhile to note that even this depends on the parliament and as parliament cannot be bound by its predecessors, there can be repeal of this law also in the future. The most important indication of this is the recent decision of the Supreme Court in the Miller case, where one can clearly see how the doctrine of parliamentary sovereignty is reinforced in the conventional and traditional manner after the UK leaves European Union. In Miller, the Supreme Court held that even if Article 50 of the Treaty of the European Union gave the government to the power to trigger Article 50 withdrawal, it would need parliamentary assent for doing so. In this regard, it would be pertinent to note the following words of Ewing

“Looking forward, however, the most eye-catching feature of the decision is its defence of parliamentary sovereignty. When all is stripped away, the core of both of the major questions the court was asked to address is the role of the Westminster Parliament in the modern British constitution, the reasoning if not the result paradoxically responding in terms that reflect the sentiment of the referendum result, at least in those parts of the country where a majority of those voting did so to leave the EU. In thus delivering a clear statement of constitutional orthodoxy and a clear re-assertion of parliamentary sovereignty as the fundamental principle of the constitution, Miller has swept aside recent uncertainties, equivocations and qualifications.”

Conclusion

To conclude, although the application of European law did see parliament being restricted in its traditional unrestricted law making powers, there is nothing to suggest that the parliament cannot change the laws that gave the power to judiciary to consider compatibility between parliamentary law and the European law as no parliament can bind its successors. With the recent Miller decision and the exit of the UK from European Union, it may be becoming clearer that the traditional doctrine of parliamentary sovereignty was never eroded so far as to not be reclaimed by the parliament itself.

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26. Department for Exiting the European Union, Legislating for the United Kingdom’s Withdrawal from the European Union (Department for Exiting the European Union 2017).
27. Ibid.
28. Ibid, para 2.2.
29. Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5.
30. Ibid.
31. Keith Ewing, ‘Brexit and parliamentary sovereignty’ (2017) 80 (4) The Modern Law Review 711, 712.

Cases

A & Others v. Secretary of the State for the Home Department [2004] UKHL 43

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Attorney General’s Reference (No. 4 of 2002) [2004] UKHL 56

Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 HL

Dr Bonham’s Case 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 638 (1610)

Jackson v Attorney General [2006] 1 AC 262

Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5Pickin v British Railways Board [1974] AC 765

R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70

R (Gentle) v The Prime Minister [2006] UKHL 20

R v Secretary of State for Employment, ex p Equal Opportunities Commission (1995) 1 AC 1

Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568

Bibliography

Books

Alder J and Syrett K, Constitutional and Administrative Law (Palgrave Macmillan 2017).

Barnett H, Constitutional & Administrative Law (Routledge 2014).

Bingham T, The Rule of Law (Penguin 2010).

Broadbent G, Public Law Directions (Oxford University Press 2009).

Dicey AV, Introduction to the study of the law of the constitution (London: Macmillan 1915).

Fenwick H, Civil Liberties and Human Rights (Oxon: Routledge 2007).

Lee R, Blackstone’s Statutes on Public Law and Human Rights 2018-19 (Oxford University Press 2018).

Turpin C and Tomkins A, British Government and the Constitution: Text and Materials (Cambridge University Press 2011).

Wright T, The Politics of Accountability, in M. Elliott, & D. Feldman (eds.), The Cambridge Companion to Public Law (Cambridge: Cambridge University Press 2015).

Journals

Bingham, 'The Rule of Law' (2007) 66 (1) The Cambridge Law Journal 67.

Ewing K, ‘Brexit and parliamentary sovereignty’ (2017) 80 (4) The Modern Law Review 711.

Helmholz RH, ‘Bonham’s Case, Judicial Review and the law of nature’ (2009) 1 (1) Journal of Legal Analysis Winter 325.