SOVEREIGNTY- AS EXTINCT AS THE DINOSAUR
Issues to do with the sovereignty of Parliament have concerned politicians, judges, lawyers, legal commentators going back to the time when Dicey formulated the principle in the 1800’s and even before then with the Treaty of Union of England and Scotland in 1707, more recently lay people have ploughed into the fracas. This essay will explore the debate and will conclude with statement as to whether sovereignty is still of central importance to the UK constitution. No essay of this type would be complete without an exploration of those factors which have been said to undermine sovereignty.
AV Dicey, a Professor at Law at Oxford University & a world renowned jurist expressed the traditional view of sovereignty, though one must acknowledge that the true origins of Parliamentary supremacy derive from the Bill of Rights 1688, which stated as a legal principle that laws could own be made or repealed by Parliament & not by the monarch on its own with respect to the provision that Parliament is free to legislate on any matter. This can be illustrated by the fact that acts of Parliament can go so far as to provide for changes in the composition & power of the parliament itself. Two acts which illustrate this are the Parliament act 1911 which removed certain powers of the House of Lords and also the lie peerages act 1958 which allowed for the introduction of life peers and their full range of rights. Freedom to legislate doesn’t end there & in fact Parliaments supreme powers afford the freedom to legislate on matters which go beyond the geographical boundaries of the England & Whales. This can be found in War Crimes Act 1991 which deals with English courts ability to try other nationals for War Crimes committed in another country. Furthermore the Sexual Offenses Act of 2003 allows for the Prosecution in the UK courts of those who have committed sexual offense against children in other countries. There are numerous other examples including the Continental Shelf Act 1964 which all have in common that the UK Parliament may asset its power and jurisdiction beyond the limits of its land. These statutes illustrate AV Dicey’s assertions very well. Further examples can be found in War damage Act 1965.The House of Lords had allowed rightful damages for property which have been destroyed by the state during the war when in 1965 action was brought in the case of Burmah Oil Ltd V Lord Advocate. Having awarded compensation to the Burmah Oil Company Parliament not wanting to pay out damages hastily put together the War damage Act which had retrospective effect and as such deprived Burmah Oil of their compensation . The House of Lords, being the highest domestic court , had been usurped. This case and the subsequent act illustrates the power of Parliament even to do something which is improper, immoral and otherwise unacceptable.
Dicey’s theory also deals with binding successive Parliaments. Although Parliament is supreme this aspect of Diceys theory is somewhat wanting because no Parliament can bind its successors. The leading case on this is Ellen Street Estates V Minister of Health (1934). The case is to do with the land purchase and whether a recent act invalidated an earlier act. The two acts in question were the acquisition of Land Act (Assessment of compensation) Act 1990 and the Housing Act 1925 comprising the compulsory purchase of land & compensation arising from that purchase. The problem was that the provisions in the later act differed from the earlier act. The question arose as to which act will prevail. Maugham LJ: The legislative cannot, according to our constitution, bind itself as to the form of subsequent legislation and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.
Another part of Dicey’s formulation is that an Act of Parliament cannot be challenged or its validity questioned. This principle can be examined by looking at the case of Cheney V Conn (Inspector of Taxes) . Here a taxpayer concerned that taxes were being spent on nuclear weapons which was contrary to the Geneva Convention decided to challenge the validity of the Finance Act 1964.And delivering judgement Justice Ungoed-Thomas in the Chancery division said ‘What the statute itself enacts cannot be unlawful because what the statute says and provides is itself law and the highest form of law that is known to this country. It is the law which prevails over each other from law, and it is not for the Court to say that a Parliamentary enactment, the highest law in this country is illegal.’ The strength of this element can also be found in British Railway V Pickin .
In recent times Parliamentary supremacy has been the subject of entrenched debate. In particular it has been raised with respect to European Community Law and perhaps it is a case of Factortame that delivered the greatest blow to the notion of the Supremacy of the parliament. The case of Factortame is concerned with the Fishing Rights of Spanish man in UK waters. But for the purposes of this essay it is the judgments and not the facts which is most important. The treaty of Rome never expressly provided for the Supremacy of Community law over national law. Nonetheless through a series of innovative judgments the European Court of Justice showed that its priority to establish the primacy of Community law and that this is of crucial importance to achieve the goals of the Community. In Factortame the House of Lords accepted the primacy of Community law over provisions of UK Acts of Parliament. Lord Bridge said ‘It is always been clear that it was duty of the UK court when delivering final judgment to override any rule of national law found to be in conflict with any directly enforceable rule of Community Law.’ Clearly membership of the Community has in some ways diluted the original notions of sovereignty. For some commentators this is an absolute attack on sovereignty. However European Community Law is limited to certain areas of Law including trade, employment, immigration, competition and so forth. Indeed areas of Law such as criminal, contract, education & health care by enlarge untouched by EU influences. It would therefore fair to say that sovereignty is curtailed by EU membership but it is not extinguished. Another attack on sovereignty has come from the devolution of Parliament.
Devolution is the transfer of powers from a central government to a regional government which was introduced in 1998 to Scotland, Wales and Northern Ireland. Under the doctrine of parliamentary supremacy devolution is in fact reversible and the devolved institutions are subordinate to the UK Parliament. The system of devolution in UK is asymmetric which means that there are no specific patterns of the devolution in Scotland, Wales and Northern Ireland. Scotland has a Parliament and an Executive developed from the Westminster model. Under the Scotland Act 1998, the Scottish Parliament can make laws and the Executive can make secondary legislation other than the ones reserved to the Westminster model. The Westminster parliament can legislate in the devolved institutions if asked by the Scottish parliament under the Sewel Convention which shows the supremacy of the parliament. Central government still maintains certain legislative & administrative powers. So in reality this is done little to undermine Parliamentary sovereignty.
Another matter that raised as being one which undermines Parliaments sovereignty is delegated legislation. In delegated legislation powers are given to the ministers and the Executives to make laws The volume of delegated legislation have made an imbalance of the power of the legislature and the Executives which illustrates the degree of dominance of Executives over the Parliament. Whilst it is true that laws may be made outside the remit of Parliament, the circumstances in which these laws can be made is limited as is the nature of the laws. The Human Rights Act is or has an enormous impact on Parliaments sovereignty. Human Rights govern many aspects of everyday life. And the UK’s membership & adoption of the European Convention on Human Rights may be considered a limiting factor in Parliaments ability to make or unmake any laws whatsoever. The Human Rights Act has been incorporated into the UK Law and every piece of existing legislation must be interpreted in the light of the Human Rights Act. Numerous citizens have taken the opportunity to bring actions for Human Rights abuses in areas such as Right to a Fair trial, Right and Respect for family life and so on. Undoubtedly the incorporation of Human Rights Act had a great impact on the UK’s approach to law and to Rights. This does not necessarily mean that sovereignty is undermined, though it does mean that Parliament & the Courts must adopt a new approach to law making.
Sovereignty in its original form perhaps no longer exists in its entirety. Nevertheless Parliament is still supreme in those areas of domestic law which are not touched by the UK’s membership of the European Community and it is true to say that if Parliament so wishes it may enact legislation which withdraws the UK from membership of the EC. Perhaps the best way of putting this is that sovereignty has evolved to meet new and challenging circumstances and it is right that this is so particularly as we try to find our way in the global world and try to afford greater rights to our citizens by empowering those organisations which are well equipped to deliver our constitutional and administrative requirements. Parliament is still supreme but this is a relative concept and the current position is that some of its’ previously held power has been dissolved!