The Doctrine of Parliamentary Sovereignty

Statement that the doctrine of parliamentary sovereignty means that under

Introduction

The statement that the doctrine of parliamentary sovereignty means that under the English Constitution, the Parliament can make or unmake any law and that no person has the right to override or set aside the legislation of the Parliament. This is the traditional perspective of the doctrine of parliamentary sovereignty, which is still relevant today. There are some scholars who argue that because of the applicability of European law and the changing dimensions of judicial review, the doctrine of parliamentary sovereignty has changed and new constitutional precepts have come to existence.

This essay argues that despite the emergence of new constitutional norms, the doctrine of parliamentary sovereignty is still as relevant today, in the same sense as expressed by Dicey, as it was in his time. There are certain qualifications on the doctrine, however, these are also the constructs of the Parliament. Moreover, with the BREXIT vote in favour of leaving the EU, there is a sense that there may be a return to the traditional doctrine of parliamentary where the EU law will not in certain cases prevail over the primary legislation in the UK.

Parliamentary sovereignty: Traditional concepts

The traditional doctrine of parliamentary sovereignty has three important precepts. It postulates that parliamentary stature, is the primary legislation. As such it is the supreme law of the land. This has three implications. The first implication is parliament cannot be restricted in the scope of its legislative powers, and as such, it can legislate on any matter. The second implication is that no previous law made by the parliament can bind the present parliament, or in other words, parliament cannot be bound by its predecessors, nor can it bind its successors. The third implication is that the validity of the Acts of the parliament cannot be questioned, including by the courts. Therefore, in the UK, judicial review cannot be applied over primary law (Wilson v First County Trust Ltd (No 2), [2003] 3 WLR 568). In this respect, the UK is very different from many democratic countries in the world, including, the US. The doctrine of parliamentary sovereignty is a construct of the common law and has stood the test despite the new developments in constitutional law discussed in the following sections.

New developments in constitutional law

European Law

The UK’s joining the European Union (EU), has had some implications for the doctrine of parliamentary sovereignty. The traditional aspect of the doctrine of parliamentary sovereignty, which provides that Parliament can legislate on any matter, has been impacted by the membership (Oliver & Drewry, 1998) . Examples of this can be found in some case laws as well.

One example is the case of A v Secretary of State (Belmarsh case). The impugned legislation in the case, the Anti-Terrorism, Crime and Security Act, 2001, was a response to the 9/11 attacks on America and allowed detention of foreign terror suspects for an indefinite period of time. The House of Lords declared incompatibility between these provisions and the right to liberty under the European Convention of Human Rights (ECHR), article 5 (Slapper & Kelly, 2009) . Ultimately, the parliament repealed the provisions relating to indefinite detention. Another implication of the EU membership is with respect to the Parliament not able to bind its successors after the passage of the European Communities Act 1972. Section 2(1) of the Act provides the principle of compatibility between primary law and EU law. Basically statutes made before or after the passage of the 1972 Act, should contain provisions that are contrary to the EU law. In R (Factortame Ltd) v Secretary of State for Transport, the House of Lords suspended the operation of primary legislation as it was contrary to the EU law in the same area. (Slapper & Kelly, 2009)

It is noteworthy that the restriction that is obviously placed on the parliament due to the EU law applicability is a construct of the parliament itself. Just as the parliament made it, the parliament can even disallow it by a change in the primary legislation of European Communities Act, 1972, through express repeal.

Judicial Review

Traditionally, judicial review has been seen in the context of, as supplementary to principle of parliamentary sovereignty. In that sense, the doctrine of ultra vires was applied by the courts to test the validity of executive action on the basis of parliamentary law (Oliver & Drewry, 1998) . In recent times, due to the applicability of EU law, read with the Human Rights Act, 1998, there has been a contention that the dimensions of judicial review, somehow are challenging the traditional norms of parliamentary sovereignty (Fenwick, 2007) . In Council for Civil Service Unions v Minister for the Civil Service (GCHQ case), [1985] AC 374 HL, the court rejected the Royal Prerogative argument and allowed judicial review on ministerial action (Turpin & Tomkins, 2007, p. 697) . However, it is important to note that this is applicable only in some situations. Courts are not comfortable with testing the traditional boundaries of judicial review on executive action, when that action is taken in the name of national security. Such political questions are treated by the judiciary itself to be outside its scope of review. An example is in the case of R (Gentle) v The Prime Minister, [2006] UKHL 20. In this case, the House of Lords held that war making powers are in the executive domain and it could not authorize the setting up of an investigative panel to see the lawfulness of government’s decision to deploy personnel in Iraq (Fenwick, 2007) .

Towards Traditional Parliamentary Sovereignty

The EU Referendum 2016, also called as Brexit, is a turning point of sorts. The British people have by majority chosen for the UK to exit the EU. Commentators are saying that a reason for pro Brexit votes is the desire to reclaim the traditional British parliamentary sovereignty.

Conclusion

Dicey’s words are as relevant today, as they were when he wrote them. Principle of parliament sovereignty is deeply entrenched in the English constitutional law. Changes in the constitutional law, such as EU law supremacy, or the dimensions of judicial review, are not strong enough to replace the doctrine of sovereignty.

Bibliography

• Turpin, C., & Tomkins, A. (2007). British Government and the Constitution: Text and Materials. Cambridge: Cambridge University Press.
• Oliver, D., & Drewry, G. (1998). The Law and Parliament. Cambridge: Cambridge University Press.
• Slapper, G., & Kelly, D. (2009). The English Legal System. Oxon: Routledge. Fenwick, H. (2007). Civil Liberties and Human Rights . Oxon: Routledge.