British Parliamentary Sovereignty

[Tom Paine]

Parliamentary Sovereignty (that is, "the right to make or unmake any law whatever" [Albert Dicey, Introduction to the Study of the Law of the Constitution (1885)]) as far as I understand it was established by Case Law, in the principle of stare decisis, some time between the 16th to the 18th century. This means that parliamentary sovereignty does not protect parliamentary sovereignty; the High Court, to my understanding, could rule against it and thus, legally, Parliament overturns its own sovereignty. Equally, if I am right, it would mean Parliament could pass a Bill creating Judicial Sovereignty; which would mean the ruling on Parliamentary Sovereignty held supreme; meaning the act held supreme; etc, meaning constitutional crisis. So I was wondering how well protected Parliamentary Sovereignty actually is in the UK?

[Markas]

You ask the question how well protected Parliamentary sovereignty is in the UK but do you have some scenario in mind whereby your 'constitutional crisis' came about? And if so why and for what purpose? If you do not then fine but i get the impression you do.

[Big War Bird]

Parliamentary Sovereignty is protected by the jealousy of the MPs of their own power. the MPs will not surrender it power to lesser bodies, but they could surrender it to what they perceive as a greater power, namely the EU. As members of the EU the British MPs could wield even greater power

[Lavastein]

thats not a bad way to look at it. If they are supreme does there supremicy deny the people to demand something else even if it goes against them? :hmmm:

[the Black Prince]

the doctrine of stare decisis is that of "stand by things decided" its the doctrine of precedent and is the total opposite of parliamentary sovereignty. stare decisis states that courts are bound to follow all previous decisions, unless such decision is per incurium (obviously wrong, i.e. in conflict with legislation or didn't itself follow previous precedent). the one exception is the house of lords, which by virtue of the 1966 practice direction can overturn its past decisions.


Parliamentary Sovereignty is a constitutional convention, and doesn't arise from case law or the courts at all. As a doctrine, its one that simply states that no parliament can bind a later parliament. in other words, if todays labour government enact the ID card scheme, it doesn't prevent the next tory government turning round and axing it.

in practice though, such u-turns are rare simply because of the money wasted. once something is enacted, governments tend to modify it, rather then scrap it altogether.

a key feature of the doctrine is the doctrine of implied repeal. this means that where 2 laws contradict each other, the newer law takes precedent.
so, for example, if the UK gov really wanted indefinate detention without trial, they could enact it, and simply include a section in the act that says, s.2 this law is designed to be in breach of the Human Rights Act. s.3 This law is designed to be in breach of the european communities act.
the courts would then have absolutely no choice but to follow such a law, it being the will of parliament.

there are a number of acts considered constitutional. most, like the representation of the people acts, and the parliament acts rarely come up before the courts. others, like the European Communities Act 1972, and the Human Rights Act 1998 to affect how the courts work.

by virtue of those two acts, courts have to give priority and precedent to EU law and ECHR articles over national law. technically, this is therefore contradictory to parliamentary sovereignty.

however, what the courts have said is (in the House of Lords case: Factortame, involving the Merchant Shipping Act) is that all courts will interpret legislation inline with EU law where possible, or follow EU law instead of national law if in conflict. additionally, they will interpret all laws under s.3 HRA, or rule them unlawful under s.4 HRA and refer back to parliament. The doctrine of implied repeal does not apply to constitutional acts that derogate power away from parliament. sovereignty is maintained by the fact that parliament can, at any time, repeal both acts. additionally, Lord Denning has said Obiter, and its likely to be followed, that if parliament explicitly states an act is intended to breach EU law, the courts would be bound to follow parliaments wishes. in such a case though, the European Commission would have indisputabl evidence to bring the UK before the ECJ.


Parliament has the right, at any time, to derogate any powers it holds, though by convention these days, major transfer of power away from parliament must be done by referendum (European Communities Act, Scotland Act, Wales Act) again, those acts don't represent an end to sovereignty, because parliament can repeal them at any time - so long as its prepared for the consequences.

as for tGS example.
yes, parliament could pass as Executive or Judicial Supremacy Law. it could also repeal it as well. the attitude of the courts, especially the lords is to maintain the doctrine as well, since its one of the fundamental doctrines of our constitution.
The only way the doctrine could truely be ended would be by major constitutional reform transfering (by referendum) sovereignty to an entrenched British Constitution.
such a change would be the biggrest constitutional shake up since the 1700s though.

tGS
Dicey is good, very good. His works, along with those of Lord Cooke and Sir William Blackstone form the basis of much of our modern common law and constitional theory. i'm especially fond of Dicey's Rule of Law. However, Dicey needs to be examined in a modern light, its hard to take his principles at face value any more, because they are modifed by convention, by legislation and by case law. what Dicey had to say about the workings of parliament, for example, is changed completely by the Parliament Acts 1911 and 1949 and the Lords Reform Act 1999.

if you want to learn the modern approach to it, i recommend
Constitutional and Administrative Law (3rd Edition) Carroll, A. 2003 or
Public Law Tomkins, A. 2003

both are undergrad level textbooks recommended for the LLB in law by the Law Society.

[Tom Paine]

Actually tBP Parliamentary Sovereignty also is the doctrine that prevents any body overruling Parliament, making Parliament the ultimate source of all law; the inability to bind later Parliaments is a limitation on such sovereignty.

Oh, and by the by, should it hand sovereignty to someone else repeal of the Act wouldn't matter at all; Parliament would have rendered its supremacy to someone else and repealing the act wouldn't matter, although the Executive already effectively has supremacy unless they manage to create major, major dissention amongst their backbenchers.

[the Black Prince]

parliament signed the acession treaty to europe in 71/72
because we are a dualist political state, we passed the european communities act in 1972, putting our treaty obligations into national law.
among those obligations were the statements of european primacy. that the UK is subject to community court rulings from the ECJ, and that EU law takes precedence over national laws. our ability to make our own laws was passed upward to the European Council, Commission and Parliament (as they are now)

this does not prevent parliament abrogating our treaty obligations, it does not prevent parliament withdrawing from europe. it does not prevent parliament repealing the ECA72. Therefore, parliament is still supreme. Parliament has the power to do something in direct contradiction to what Europe wants, provided of course, that we accept the consequences of such action, at first instance, being brought before the court of justice, and ultimately, leaving the Union.
Thatcher was the last person to try it with the Merchant Shipping Act. that bit of UK protectionism resulted in something like a £10 million fine. One hell of a lot of taxpayers money.

likewise, parliament has delegated its sovereign law making abilities to the Scottish Parliament in certain areas. All parliament has to do to reclaim those powers is repeal the Scotland Act 1998. That piece of constitutional enabling legislation is the sole provision for the legality of anything the scottish parliament does. without it, the SPs power returns to Westminster. Of course, should parliament consider such action they must also consider the consequences, notably in this case, scotland deciding to suceed from the Union.
interesting though, the current scotish parliament doesn't have the power to repeal the act of union 1707 which merged us. the sucessor body to the scottish parliament that passed that act, is Westminster, notably the scottish MPs in Westminster.

because Parliament cannot bind itself, and can only delegate or transfer its powers by primary legislation, any transfer can always be repealed by repealing the primary legislation.
treaties are binding on the UK government, but not in the UK. the only way to enforce a treaty in UK law is if the treaty is enabled by a piece of legislation. therefore, if the ECA72 is repealed, and the HRA98 is repealed, there is no way to enforce the EU TReaty rights and ECHR in the UK. the UK Government may be held accountable on the international scale, but that doesn't affect our citizens.

We signed the Convention on Human Rights in 1952. Until 2000, when the provisions of the Human Rights Act 1998 came into force, there was no way to enforce the articles of that treaty in UK law. You could argue as much as you liked you had a human right to do X Y Z but it meant nothing. Our courts could not and would not enforce it, because parliament would not enact it. As an EU citizen your only remedy was to take our government to the court of human rights in strasbourg. If the ECA72 was repealed, you wouldn't be an EU citizen anymore and wouldn't have that right either.



as for the power of the executive, thats our major flaw in terms of the Doctrine of Seperation of Powers, but has its bonuses. Don't forget, every member of the executive government (as opposed to civil servants) is drawn from the legislature. a maximum of 90 of them are elected members of the Commons, the rest our drawn from the Lords. Because of this, the power of the executive is protected by Sovereignty anyway.

While its a gross breach of the doctrine of seperation of powers, it does prevent the stalemate and compromise situations seen in the US. If you have a legislature in opposition to the Executive, how can you govern? how can you make laws? especially if partisan politics come into play. Everything comes down to negotiation and even pleading with various people to allow you to fulfill campaign promises. A perfectly highlighted extreme example of the problems that could happen in a US system can be seen in The West Wing, especially, i think Season 5.
In the UK, because the government is drawn from the legislature, they are considered to have an elected mandate to govern according to their policies, i.e their manifesto. thats why a government can only be formed if it holds a majority in the commons, and why the lords cannot effectively block the commons (since the Lords can be in opposition). a government that loses its majority loses its government.
On several votes, Labour have imposed a 3 line whip on the vote. normally, a member breaking such a whip would lose his place in the parliamentary party. However, some votes have seen so many coordinated rebels, that the party wouldn't dare sack that many members because it would endanger the very government. safety in numbers.