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Constitutional Law: Parliamentary Sovereignty

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Question:

Evaluate the accuracy of Alder’s assessment of Parliamentary Supremacy today. Your analysis must include not only domestic challenges to the doctrine but, in addition, the impact of any international law which has been incorporated into UK law?

 

Answer:

Introduction:

Parliamentary sovereignty is a vital concept in the aspect of constitutional law. According to this concept, the parliament is supreme over all other organs of the government. The government has three organs which includes executive, judiciary and legislative. Now according to this theory the legislature enjoys the superior power among these three organs. According to this theory, the parliament can make create any law freshly, and it does not depend on any precedent or executive actions. The theory can collide with the theory of separation of power theory that generally limits the power of the legislature. This theory also restricts the scope of judicial review by which the judiciary can judge the validity of any legislations passed by the legislature. The United Kingdom is the state where the parliamentary sovereignty is very prominent. In UK, there are two kinds of sovereignty which includes legal and political aspect. In the aspect of UK, parliament is not politically sovereign. If the parliament constructs any unwanted or impractical laws, that will not applied in the practical sense. But that does not include the concept that parliament is not a legally sovereign entity. In the light of the case of Madzimbamuto v Lardner-Burke, it was claimed by Lord Reid that certain things are considered to be impractical or unconstitutional for the parliament of UK. But that thing does not mean that Parliament has no authority to do the act. If the action is taken by the parliament, the court merely does not invalidate the law or the authority of the parliament.

Alder’s evaluation in regards to Parliamentary Supremacy:

The principle of parliamentary supremacy states that parliament posses the ultimate power to enact any law, and the decision cannot be overridden by any other authority or organ of government. In the case of, Jackson v A-Git was stated that this is the most important doctrines in the British Constitution. Alder in his book state that state that the classic theory of parliamentary supremacy was given by A.V. Dicey. Parliamentary supremacy considered to be legal but opposed to the principle of political theory because it defines that the parliament is above al. In the case of Pickin V British Railway Boardstates that for the action of parliamentary supremacy the valid laws might be predestined as unconstitutional in the broader political aspect.

According to Alder judges, recognised the constitutional law and politics are not separated with each other. R v Secretary of State for Foreign and Commonwealth Affairs is the important case in this aspect which states that the exclusive power of Parliament drives from its representative character. Jackson v A-G the important case on which Lord Hope describe that the principle of parliamentary sovereignty is an ineffective principle that has no validity if the parliament passes unambiguous, unconstitutional or unacceptable principle that the people of the country will not try to recognise as law. 

 

Dicey distinguishes the political and legal sovereignty. According to Dicey legal sovereignty, includes that the power of the lawmaker is absolute and conditional. But the political sense that that the law must be maintained which is recognised by the populations of the nation. Alder criticised the view of Dicey and state that Dicey by his theory indicates that the electorate even though today it might somewhat be the monetary or expert network with advantaged access to politicians.  The internal and external political limits on the lawmakers are described by Dicey. The internal limits refer to the inherent rules and practice with the parliament. In the Parliament, an amalgamation of the conventions needs the Queen to consent to the entire legislations. The political and ethical pressures imposed by the conventions are also the part of internal limits partially.  

The external limits comprise of all the matters which deals with the people on whom the law is going to apply. But in reality according to Alden, the parliament cannot pass any law according to its wish.

Alder in his book specifies that the version of Dicey in regards to the doctrine of parliamentary supremacy is in question. The theory states that the concept required external requirements and under the common law legal system the ultimate guardian of the Constitution is court. So, it can be confirmed that the concept of parliamentary supremacy is obsolete if it lose the public support.

The theory of Alder is a modern concept. He describes the concept of parliamentary supremacy on the light of UK. He claimed that. As UK has no written constitution, so the foundation of parliamentary sovereignty is not a clear concept. Alder criticized that it is not desirable that all the legal power is confined to just an organ of the government. So, the alteration in the theory is required. The parliamentary sovereignty theory is based on the test of time and its applicability and adaptation. The theory based on the political ideology. If the ideology is changing, the concept of the doctrine will also change. In the case of R (Factortame Ltd) v Secretary of State for Transport, it was decided by Lord Bridge that the parliamentary supremacy concept can be modified by the parliament itself. According to revival theory, this concept is extracted from common law constitutionalism. So, therefore the courts are obeying the rule made by the parliament. In the case of Jackson v. A-G, it case claimed that this concept can be established by common law in the absence of the higher authority.

In his theory, Alder described the challenges of parliamentary sovereignty. There were several arguments that indicate the fact that the parliament can also be legally limited. Alder claimed that the basis of this doctrine relied upon the acceptance from the subjects of a nation. Primarily this doctrine was developed as a historical response to the then political situation. It is initiated to reduce the dictatorship of the monarch. But the approached changed every day. The old conceptualisation of this doctrine is become obsolete now. Dicey provide his theory at the Victorian period that may be suitable for that occasion. The citizen of England was to some extent benefited by that system. The reason is that it relieves them from the mismanagement of the spoil empire. But presently this theory is out of date. The doctrine seems to be unreal, narrow-minded, rationally tattered. Certain internal and external forces made this theory outdated for the present situation. The forces can be classified as domestic and as well as the international sources. The sources include global economy, decentralization, delegation, membership in EU, related international obligation and increasing the power of the executive organ of the parliament.

 

Alder claimed that there was no relevance of the doctrine in the modern context. The reason is that there is no political agreement that the parliament must hold the supreme legal authority. There is no such legally resonating also. Alder identifies the major challenges to the theory. The main question arises in this context is that if the UK parliament made any law regarding the independence of the certain territory, later on whether the parliament enjoys the right to amend the decision? In the decision of Blackburn v. A-G, Lord Denning states that if any principle become totally out of the line, that principle needs the reconsideration.

Evaluation of the theory of Alder in the modern context:

The theory developed by Alder in regards to parliamentary supremacy is very relevant in the modern context. He opposed the view of Dicey. He explained that the parliamentary supremacy is not absolute, and it depends on the acceptability of the subjects.

He claimed and identified different domestic issues regarding the applicability of parliamentary supremacy theory as a whole. The relevance of the theory can be judged by defining the lope holes of the doctrine of parliamentary supremacy.

The British administration by the asset of Royal Prerogative has an authority to go into any international treaty that can join the nation. On the other hand, the principle of parliamentary supremacy entails that no modification of the privileges of British people without the con­sent of Parliament. These privileges can be modified merely by other legislation of Parliament. Accordingly, if the United Kingdom does not desire to be in contravention of its international responsibilities, the Parliament needs to fit in international law under the law the United Kingdom. The ascendancy of International law was decided in the case of ECJ in Costa v. ENEL in 1964. It reflects the detail that international law is greater to domestic laws. On the other hand, International law takes priority in the situation of a clash with requirements of domestic law. Furthermore, these requirements were prepared, so International laws are higher still to that domestic law that were ratified later.

It was decided before the privileges of persons within the United Kingdom can be modified just by legislations of Parliament. For that reason, the Parliament needs to pass a law that included the requirements of Lisbon Treaty to the United Kingdom law, to that these requirements are in action in the territory of United Kingdom. In consideration of the principle of parliamentary supremacy taken into deliberation, particularly two sections of that Act is supposed to be scrutinised. On the other hand, the Lisbon Treaty launched a significant condition that openly corroborates the privilege of Member States to remove from the European Union. It is mentioned in Article 50 of TEU. These stipulations highlight the disagreement that United Kingdom remains abide by the EU law as extended as the Parliament desires to stay in the EU. Consequently, it should be confirmed that the amalgamation of that Lisbon Treaty into the United Kingdom regulation must put the principle of parliamentary supremacy under supplementary damage and in hypothesis this principle still triumph in the domestic law of the United Kingdom.

 

uropean Communities Act 1972 put into practice the Trea

Dicey considered Parliament as protector of elementary rights and as elected council of citizen’s most excellently placed to the equilibrium of human rights with the community interest. Conventionally the judges establish that elementary rights might be shortened by Parliament in the interest of the public. In the case of Entick v Carrington the decision was taken by the court.

The Human Rights Act 1998 comprises the European Convention on Human Rights and is a legitimate foundation. Section 3 of the Human Rights Act 1998 needs courts as far as probable to interprets the domestic law as well-matched with the right of Convention. The judges obtain a purposive outlook to do so as mentioned in the case of Ghaidan v Godin-Mendoza.

Section 4 of the Human Rights Act 1998 permits the High Court and other courts to set aside legislations that are unsuited with Conventional rights so far. Section 10 of the Human Rights Act 1998 let the administration formulate delegated legislation corrective instructions, which Parliament have to support. There is no compulsion to do that, but the political force to do that has the guide to some conflicting it has turned out to be a constitutional conference for the matter to be cured when recognized in this method. Section 19 of the Human Rights Act 1998 needs a Minister to construct declaration of compatibility for the fresh law on this permits the court to assume the Act is supposed to be interpreting in a companionable manner. An administration may also make a decision to carry on with legislation that is not well-suited. Section 6 of the HRA makes it unlawful for public authority act in way incompatible with Convention privileges; this might be superseded by legislation and but never includes a person works out purpose in association with events in Parliament.

Decentralization has a negligible effect on the Parliamentary Supremacy Doctrine. The Scotland Act 1998 permits the Scottish assembly to construct on non-reserved regions like health and education but not on the reserved areas like, as overseas policy, defence r the matters constitution. It performs in the same way to a central constitution, wherever the Scottish assembly is a secondary parliament and could not make law for England & Wales. The administration of Wales Act 1998 gives authority to the Welsh legislature to create delegated legislation, not legislations and the administration of Wales Act 2006 expands these to some extent improved legislative power mentioned as assembly power.

The European Court of Justice renowned that all members have partial sovereign privileges, although within restricted fields as mentioned in the case of Costa v ENEL. If the United Kingdom violates a conventional compulsion, it will be assumed that it violates international law and countenance action in ECJ. If a pact necessitates a modification of law, legislative body must approve the employed legislation and judges will merely implement if the agreement compulsion has been passed in domestic law as mentioned in the case of Blackburn v Attorney-General.

 

The European Communities Act 1972 put into practice the Treaty of Accession 1972. Section 2(1) of the European Communities Act 1972 gives the consequence in the United Kingdom to straight appropriation. Section 2(4) needs United Kingdom judges to provide precedence to directly effectual EU legal rules. EU law can be unswervingly effective if it is obvious, accurate and unqualified. In Litster v Forth Dry Docks, where the national legislation had been put into practice to provide outcome to an EU command it was understand by applying purposive approach, in spite of the decision being opposing to the factual connotation of that Act. On the other hand, the judges will not acquire a purposive study if it generates a bend of domestic law as mentioned in the case of Webb v EMO Air Cargo.

State accountability may happen from breakdown to enact any Act, which provide the generous result to EU law or faulty completion and can guide to the judges presentation compensation for the loss. EU law can also weaken the role of assembly as the protector of privileges. To declare the doctrine of parliamentary supremacy, the legislation European Union Act 2011 needs a reminder before the United Kingdom concur treaty alteration or additional transport of authority to the European Union. The Act also creates Parliamentary preeminence a constitutional principle.

Conclusion:

After all the discussion, it can be confirmed the theory of A.V. Dicey regarding the parliamentary sovereignty is not suitable fully in the modern context. Alder criticized the theory and stated that the parliamentary supremacy depends on the acceptance or desire of the people or subjects. The theory of Alder is more acceptable in the modern concept. The parliamentary supremacy is a concept that creates the issue to those international laws that are incorporated in the law of United Kingdom. The paper identifies several domestic as well as international aspects where the theory creates the problem in modern context. So, the theory of parliamentary supremacy, as provided by Dicey, cannot be acceptable fully in the contemporary world.

 

References

  • Alder J and others, General Principles Of Constitutional And Administrative Law (Palgrave Macmillan 2002)
     
  • Alder J, Constitutional And Administrative Law (10th edn, Palgrave Macmillan 2015)
     
  • Aldous G and Alder J, Applications For Judicial Review (Butterworths 1985)
     
  • Barnett H, Constitutional & Administrative Law (Routledge-Cavendish 2006)
     
  • Clément D, 'The Royal Commission On Espionage And The Spy Trials Of 1946-9: A Case Study In Parliamentary Supremacy' (2000) 11 Journal of the Canadian Historical Association
     
  • Davis F, 'Parliamentary Supremacy And The Re-Invigoration Of Institutional Dialogue In The UK' (2012) 67 Parliamentary Affairs
     
  • Doig A, 'NEXT STEPS TO THE SUPREMACY OF PARLIAMENT?' (1996) 49 Parliamentary Affairs
     
  • Flaherty M, 'The Empire Strikes Back: Annesley V. Sherlock And The Triumph Of Imperial Parliamentary Supremacy' (1987) 87 Columbia Law Review
     
  • Hatchard J and Slinn P, Parliamentary Supremacy And Judicial Independence (Taylor & Francis 2003)
     
  • Kurland P and Casper G, Landmark Briefs And Arguments Of The Supreme Court Of The United States, Constitutional Law (University Publications 1975)
     
  • MacKay R, 'Coke: Parliamentary Sovereignty Or The Supremacy Of The Law?' (1924) 22 Michigan Law Review
     
  • McCullough H, 'PARLIAMENTARY SUPREMACY AND A CONSTITUTIONAL GRID: THE CANADIAN CHARTER OF RIGHTS' (1992) 41 Int Comp Law Q
     
  • Parpworth N and Pollard D, Constitutional And Administrative Law (Oxford University Press 2006)
     
  • Rose-Ackerman S and Lindseth P, Comparative Administrative Law (Edward Elgar 2010)
     
  • RUSSELL C, 'Parliament, The Royal Supremacy And The Church' (2000) 19 Parliamentary History
     
  • Young A, Parliamentary Sovereignty And The Human Rights Act (Hart Pub 2009)
     
  • Blackburn v A-G (1971) 1 WLR
     
  • Costa v ENEL [1964] ECR
     
  • Entick v Carrington [1765] EWHC KB J
     
  • Jackson v A-G (2006) (2006) 1 AC
     
  • Litster v Forth Dry Docks [1988] UKHL
     
  • Madzimbamuto v Lardner-Burke (1969) 1 AC
     
  • Pickin V British Railway Board [1974] AC
     
  • R (Factortame Ltd) v Secretary of State for Transport [1996] QB
     
  • R v Secretary of State for Foreign and Commonwealth Affairs (2008) 4 All ER
     
  • Webb v EMO Air Cargo (1994) 4 All ER
OR

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