Parliament Supremacy

http://www.lawteacher.net/free-law-essays/constitutional-law/parliament-
supremacy.php
Parliament supremacy means that a legislative body is supreme to all other
government institutions, including any executive or judicial bodies. Generally, the
courts cannot overrule its legislation and no Parliament can pass laws that future
Parliaments cannot change. It is very much evidenced that parliament is supreme in
the UK, the only question is, is it losing its supremacy, if so to what extent?

Parliamentary sovereignty is the most important part of the UK constitution, it has

been for a very long time. The UK is known to have an unwritten constitution,
however, although, they do not exist in a single text, like other countries e.g. USA and
Germany, large parts of the UK constitution is actually written down, most of it being
statutes. Therefore, the UK constitution is often described as partly written and
wholly unmodified'.

The doctrine of parliamentary sovereignty is about the relationship between the

Parliament and the courts. Is parliament supreme or the courts? As we have stated
above, UK is known to have parliament supremacy, but to what extent? Dicey puts
forward that parliament is supreme, meaning that Parliament has, under the English
constitution, the right to make or unmake any law whatever; and further that no
person or body is recognised by the law of England as having a right to override or
set aside the legislation of Parliament'.

The doctrine of parliament sovereignty of the United Kingdom has been regarded as
the most fundamental element of the British constitution. It can be summarised in
three points; parliament has the power to make any law they wish, and no
parliament can create a law that a future parliament cannot change and only
parliament can change or reverse a law passed by parliament. It gives unconditional
power to the Westminster Parliament. A.V. Dicey describes it as the dominant
characteristic of our political institutions', the very keystone of the law of
constitution'.

Consequently, it is said that the courts have no authority to judge statutes invalid,
and that there are no fundamental constitutional laws that parliament cannot
change, other than the doctrine of parliament sovereignty itself.
Therefore, the only instance when courts are willing to question the legitimacy of
statutes is when there is a question as to them not being passed using the correct
procedure; which is passing through both Houses and receiving the Royal Assent.
This is known as the 'Enrolled Bill' rule. This is demonstrated in the case of Edinburgh
& Dalkeith Railway Co. v Wauchope (1842) 8 Cl & F 710, where Lord Campbell
pronounced:

'...all that a court of justice can do is to look at the Parliamentary roll: if from that it
should appear that a bill has passed both houses and received the Royal Assent, no
court of justice can inquire into the mode in which it was introduced into Parliament,
what was done to it previously being introduced, or what passed in Parliament
during the various stages of its progress through both houses of Parliament.'

These views were again supported in the cases of Ex Parte Canon Selwyn (1872) J.P.
54 and Pickin v British Railways Board [1974] AC 763. Both the Parliament Act 1911
and 1949 and The Regency Act 1937 and 1953 changed the Enrolled Bill Rule.

In order to keep away any conflict both the parliament and the courts have been
carefully avoiding any acts to cause so. A statement by Lord Reid shows, again, the
courts unwillingness to question the validity of an Act:

For a century or more both Parliament and the courts have been careful not to act
so as to cause conflict between them. Any such investigations as the respondent
seeks could easily lead to such a conflict, and I would only support it if compelled by
clear authority. But it appears to me that the whole trend of authority for over a
century is clearly against permitting any such investigation.

A statement by Megarry V-C, suggests that even if parliament had not done all it
should to pass an act, the courts will still not get involved, and it would not be
investigated as long as necessary assents have been given:

the duty of the court is to obey and apply every Act of Parliament, and the court
cannot hold any such Act to be ultra vires.'

Ultra Vires meaning: without authority. An act which is beyond the powers or
authority of the person or organization which took it.

When it comes to international law, the courts may still not question an act if it is
contrary to it, which has been demonstrated in Cheyney v Conn [1968] 1 All ER 779.
Here it was claimed that money from tax given under the Finance Act 1964 would be
used in a way contrary to international law. A similar case was that of R v Jordan
[1967] Crim L.R. 483 Again this failed as the judges were unwilling to question the
validity of the Act. .

Another case is that of Manuel v AG [1982] 3 All ER 786,822, which I have given a
statement form, as above. Here Canadian Indian chiefs tried to declare the Canada
Act 1982 invalid. They argued that although it claimed to have consulted the people
of Canada it had not consulted them and therefore should not have been passed.
The Court of Appeal held that there was nothing they could do once the Act was
passed, it was too late.

As a result, theoretically, we can say that Dicey's doctrine of parliamentary

supremacy is true, however, practically, we may not be able to say the same thing.

There has not been much doubt about the doctrine just until recently, it was almost
unthinkable that the courts would ever refuse to apply an act of parliament.

In Britain, many senior judges and academic lawyers have challenged the theory, the
master of the Rolls, Lord Woolf of Barnes, has asserted that there are 'limits on the
supremacy of parliament witch it is the courts inalienable responsibility to identify
and uphold. But he has subsequently stated that the courts accept the sovereignty
of parliament' and that the vast majority if not possibly all the senior judiciary' -
himself included - think it undesirable for the judiciary to be given power to
invalidate statutes.

Sir John Laws has argued that true sovereignty belongs not to parliament, but to the
unwritten constitution, which includes fundamental principles, such as democracy
and freedom of expression, that the judiciary can enforce if necessary, by invalidating
statutes.

Without going that far, Sir Stephen Sedley has suggested that the doctrine of
parliament sovereignty has been replaced by a new and still emerging constitutional
paradigm', consisting of a bi-polar sovereignty of the Crown in parliament and the
Crown in the courts'.

However, we can still determine, even though subject to much criticism today of
parliamentary supremacy, it is still seen that parliament is supreme. Though there
are factors that affect the supremacy of parliament, those factors have still been
undertaken, with the discretion of the parliament. The parliament accepted to give
up a little of its powers and can take it back any time, to keep all of its supremacy.

Another fact to consider is the effects of the European Union, the Human Rights Act
1998, Devolution of power to Scottish Parliament and Welsh Assembly and the
establishment of the UK Supreme Court. These factors do not fundamentally
undermine the principle of parliament supremacy, at least in theory, as parliament
could repeal any of the laws implementing these changes.

The Scottish Parliament and Northern Ireland Assembly are both able to pass primary
legislation within the areas that have been devolved to them. As the system remains
devolved and not federal, the powers of these assemblies stems from the UK
Parliament and can be suspended, as has happened with the Northern Irish case.
However, this seems unlikely to happen in Scotland or Wales, as such a decision
would (currently) be highly unpopular with the electorate in both places.

Secondly, the institutions of the European Union, in particular the European Court
of Justice (ECJ) which asserts the power to exercise judicial review over UK law. In
this situation, an adverse finding by the ECJ that a UK law is inconsistent with the EC
Treaties automatically annuls the law(UK), since the European Communities Act
1972 ("ECA") provides that European Community law is supreme in the United
Kingdom. The first example of this in relation to a statute, the Merchant Shipping Act
1988, was the Factortame case. The ECA has been thought of as a 'constitutional
statute'. In the case of Thoburn v Sunderland City Council the Weights and Measures
Act 1985 was held not to implicitly repeal the ECA. This has been argued to
compromise the effect of parliamentary sovereignty, as the ECA must be expressly
repealed in order to be negated by subsequent incompatible legislation.

Thirdly, the European Convention on Human Rights and the incorporation by the
Human Rights Act 1998 of the European Convention a finding of a breach of
Convention rights by the ECHR does not automatically annul the law: in practice, the
Government is bound to implement the ECHR's decisions. The Human Rights Act
includes a mechanism under which British courts can declare an Act of Parliament
to be in violation of the Convention by making a declaration of incompatibility. This
power, like that of the ECHR, does not automatically annul the law. Where a
declaration of incompatibility has been made, the Government is able to use an
accelerated procedure to enact a bill to repeal the offending law. However, the UK
Parliament could still vote to withdraw from the convention, as has been suggested
by some British newspapers, and backbench Conservative MPs.

In conclusion, There is a concept in political science of 'legal' and 'political'

sovereignty. It can be argued that legal sovereignty has not been lost, because
Parliament still retains all its theoretical powers. There are no legal limits on
Parliament's sovereignty. However, as it is highly unlikely that the UK would repeal
the European Communities Act and leave the EU, and it is unlikely the devolved
legislature would be abolished, there are significant political limits on the
sovereignty of Parliament. Nevertheless, it remains the case that the UK Parliament
could do so without seeking the mutual consent of the EU or the devolved
legislatures, as it did with the abolition of the Parliament of Northern Ireland in 1972,
and that if it did, these repeals would be legally and politically binding.
Bibliography
Alder., 2009. Constitutional and Administrative Law. Palgrave Macmillan

Bradley - The Sovereignty of Parliament - in Perpetuity?

Cheyney v Conn [1968] 1 All ER 779

Dicey, A.V., 2010. The Law of Constitution. Liberty Fund Inc.

Edinburgh & Dalkeith Railway v. Wauchope (1842) 8 Cl & F 710- HL

Ex Parte Canon Selwyn (1872) J.P. 54

http://www.parliament.uk/about/how/laws/sovereignty.cfm

http://fds.oup.com/www.oup.co.uk/pdf/0-19-826893-9.pdf

Manuel v Attorney General [1983] Ch 77, 86

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July 2010

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4 Constitutional Reform Act 2005 2005