Is Parliamentary Supremacy Under Attack? Considering Judges, EU and Constitutional Conventions

Critically discuss whether parliamentary supremacy is under attack from judges, the EU and constitutional convention.

AV Dicey defined Parliamentary Supremacy as the “cornerstone” of the UK political constitution. In his definition, he highlighted three main features of parliamentary sovereignty. The right to make or unmake any law, which is backed up by the Bill of Rights 1689 and in more present times, the Parliament Act passed in 2011. The other details in Dicey’s definition include the fact that “No person or body could override any law set by parliament and that Parliament cannot bind its future successors.”[1] Despite the provisions of laws and cases, like the Jackson v Attorney general (2005), that strengthen the principle of Parliamentary supremacy, in more recent times, it is clear that the principle of parliamentary supremacy is under attack. The Courts, conventions, and more recently and the most threatening attack, the UK’s membership of the EU, are elements that are proving Dicey’s theory, dated.

The main attack of Parliamentary sovereignty is the UK’s membership of the EU. The UK joined the EU in 1972 through the European Communities Act and with this membership, it is arguable that Parliament effectively signed off their supremacy. Section 2 of the act stated that “All such rights, powers, liabilities, obligations and restrictions… created or arising by or under the treaties… are without further enactment to be given legal effect.” The reference to “without enactment is a very key feature of this act because it essentially meant that the laws of the EU were to be carried out in the UK without the involvement of Parliament. With this in set in the act that the UK signed unto, it already went against Dicey’s orthodox definition of Parliamentary supremacy. However, it doesn’t just stop there. Before joining the EU, the CJEU already made it clear that EU law would always take priority over any law of the individual member states. This means that landmark cases such as the Van Gend[2] case and the Costa (1964) case, already established the superiority of the EU over the “supreme law-making body” of the UK, before joining. The former, introduced the principle of direct effect in the UK, which clearly undermined the Parliamentary supremacy because it meant that ordinary UK citizens could now argue their cases under EU Law, overlooking the “highest form” of law in the UK, which undermined parliamentary statutes. Barber claims that the EC Act 1972[3] was “an attempt to impose a substantive limit on the effective legislative capacity of subsequent parliaments. This shows that the EC Act was actually set out to weaken the statutory powers of its members, as such the Parliamentary Supremacy of the UK was bound to be weakened by joining the EU.

After joining the EU, the most significant case that highlighted and then clearly showed the EU’s supremacy status over the UK was the Factortame case. The entire facts of this case are not really necessary to understand that the House of Lords (court) was asked to decide on a matter to which UK parliamentary statute was going against EU Law, and the court held that wherever there was a conflict between EU and UK law, provision must be given to EU Law. The courts basically declared that in relation to the EU, Parliamentary laws could be disregarded, which clearly goes against one of the principles set out in Dicey’s doctrine, clearly showing that it attacks parliamentary supremacy.

The EU has also affected the Parliamentary Supremacy, through the Human Rights Act passed in 1998. The HRA (reflection of ECHR) represents more limitations in Parliament’s supremacy as it gives more power to the courts to make a declaration of incompatibility with regards to statutes, once again giving a higher status to the EU. R v Secretary of State for the Home Department, ex-parte Simms[1999], while clarifying that Parliament is under no legal obligation to agree with the “fundamental principles of human rights, there is still the political aspect, which is still enough to influence decisions of Parliament, especially as most parties will attempt to retain or gain power, meaning that political obligations could be just as sufficient to undermine Parliamentary supremacy. It can also be argued that the HRA has helped shift supremacy to the Judges. The HRA gives the courts new powers to be able to interpret the Act and the rights in it, how they see fit and the court is allowed to make declarations of incompatibility[4]  and interpretation responsibilities which in effect means they can control how Parliament acts, in regards to the ECHR, showing the supremacy of the EU over Parliament , but also the increased strength of the Courts against Parliament . The ECHR has aided in the rise of judicial assertiveness against Parliament. The Courts decision to rule the Anti – Terrorism Act 2001 [5]as unlawful following the Belmarsh[6] case. Lord Bingham claiming it was the function of “independent judges to… interpret and apply the law”, showing the willingness of the judiciary to check the powers of Parliament. A declaration of incompatibility was made in this ruling, which sent this case to the European Court of Human Rights. This shows how the EU and judiciary both aid each other in undermining Parliamentary supremacy.

However, it is very important to remember that the UK is a dualist state and that the constitution states that treaties to which the UK is a party only impinge upon national law to the extent that they are incorporated by means of an act of Parliament and so in theory, Parliament could pass only the parts of EU law that they feel is favourable to the UK. Realistically, this doesn’t happen, due to political obligations.

It is also important to note that the UK has now opted leave the EU and with the exit of the UK from the EU, the EU will no longer be supreme over the UK in terms of legislation made after exit day, this regaining ‘lost’ sovereignty. The exit from the EU should generally give Parliamentary more supremacy, arguably what was lost after joining the EU in 1972, however, even in leaving the EU, Parliament’s supremacy is still attacked, because the EU withdrawal act, will allow the triggering of Henry VIII clauses, which will allow ministers to alter any laws passed during the EU membership period and this arguably is giving the ministers more power as opposed to Parliament , which once again undermines Parliamentary Supremacy.

Parliament is recognized as the supreme law maker[7] in the UK, a power that was established in the Bill of Rights 1689, restricting the powers of the monarch and in doing so also limited the powers of the judiciary in law making, giving them an inferior status to statutes if there was to be a clash with Parliament. While the Courts recognize that Parliament is sovereign and have no power to declare Acts of Parliament invalid, they have increased their efforts to carefully scrutinise. One of the ways this has been done through is through the courts’ assertiveness and have become bolder in their interpretations of laws and statutes. This keys in very well with the loss of supremacy to the EU. While obviously the membership of the EU is the main cause of the loss of supremacy, the Judges also have had a role to play in terms of how they have given legal superiority to EU law. In McCarthy v Smith [1980], Lord Denning, justice of the House of Lords, issued a dissenting judgement stating that “provisions of article 119 in EEC treaty take priority over any English statute.” While this was a dissenting judgement, it was still the standpoint that was taken in this case and so, there was now case law to back up the fact that EU law took priority over UK law since joining the EU in 1972. The Factortame case also shows how the judges play a key part in being a threat to parliamentary supremacy. The HoL recognized that the under EC Act 1972[8], there was an obligation to overrule National legislation. Lord Bridge highlighted “It has always been clear that it was the duty of a United Kingdom court… to override any rule of national law found in conflict with any directly enforceable rule of Community law”. While the Judges maintained that there was a lack of choice in the matter, the judges proved with their assertiveness of this issue that, they were no longer willing to simply adhere to Parliament’s wishes.

The assertiveness of Judges is another issue that shows how Parliamentary supremacy is being attacked. This is shown through the ‘manner and form’[9] argument which essentially means that a Parliament can bind a future one, which clearly goes against one the principles of the orthodox (Dicey) definition. Wade (1955) argued that the manner and form argument shouldn’t be considered as it goes against the supremacy of Parliamentary legislature, but in wake of the Factortame decision, he suggests that there has been “a judicial revolution”[10] which has led academics like Craig, highlighting the “conception of shared sovereignty is consistent with the sovereignty of Parliament.”[11] A convincing view, after comparing the past actions of the courts, with their more recent actions.

There are certain limitations placed on the courts, that ensure they can’t overrule Parliamentary supremacy. Cases like Pickin[12] Lord Reid stated that “the function of the court is to construe and apply acts of Parliament.” This proves that they acknowledge that they have no right to go against legislation Parliament has set, therefore acknowledges the supremacy of Parliament, and have no right to question the actual statutes, and when it all comes down to it, they will have to succumb to the wishes of statutes set by Parliament.

Constitutional conventions also pose a threat to the weakening of Parliamentary supremacy albeit not as strong as the other two mentioned above. The main point that could be argued for this is the Sewel Convention. This convention set out restrictions on Parliament’s political powers, transferring some of those powers to the devolved bodies. While the convention maintained that sovereignty was still held in Westminster, consent had to be received from the devolved bodies before Parliament can legislate on their matters, shown in the Scotland Act of 1998 and 2016. This goes against one of the orthodox elements[13] and therefore, a clear example of parliamentary supremacy being lost.

However, conventions are the least convincing of threats to the attack of Parliamentary Supremacy. Due to the nature of conventions being merely practices and traditions, that aren’t actually written down I law, there is little a convention can do by way of being legally enforceable. The most it can do is be politically enforceable, and when it comes down to it, in cases where there is a clash with the will of Parliament, the courts will most times rule in favour of Parliament as shown in the case of Madzimbamuto v Lardner-Burke[14] where the convention was recognized, but conflict with parliamentary supremacy led to it being in abeyance. Lord Reid stated, “But that does not mean that it is beyond the power of Parliament to do such things”. Clearly the courts don’t acknowledge constitutional conventions to be enforceable against acts of Parliament, therefore, it is a weak threat to Parliament’s supremacy.

These three factors have in one way or another shown threats to Parliamentary Supremacy. It is clear the largest attack to Parliamentary supremacy is the EU. The UK’s membership of the EU has essentially taken over the supremacy of Parliament, showing its laws to have more power and sway over Parliamentary statutes. The EU has also now given the Judges more power, in terms of interpretations of laws and in comparison, to EU law. These two threats, work hand in hand, but ultimately the EU provides the ultimate threat. Conventions pose a slight threat, theoretically, but in reality, Conventions don’t have much sway over Parliament and with Judges to make sure they aren’t legally enforceable, they are not much of an attack to Parliamentary supremacy.

Word count – 1993

Bibliography

• AV Dicey, Introduction to the study of the law of the constitution (8th edn, Macmillan 1915) 37-38
• David Feldman, Brexit, the Royal Prerogative, and Parliamentary Sovereignty
• International Journal of Constitutional Law, Volume 9, Issue 1, 1 January 2011, Pages 144–154, https://doi.org/10.1093/icon/mor023 Published: 01 January 2011; Accessed: 30/11/2018
• Stuart Lakin; Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution, Oxford Journal of Legal Studies, Volume 28, Issue 4, 1 December 2008, Pages 709–734, https://doi.org/10.1093/ojls/gqn019
• Wade, ‘Sovereignty: Revolution or Evolution?’ (1996) 112 LQR 568

Table of Cases

• Costa v Ente Nationale [1964] – ECR 585, 593-4
• McCarthy’s Ltd v Smith [1979] 1 WLR 1189
• Madzimbamuto v Lardner-Burke [1969] 1 AC 645
• Pickin v British Railways Board [1974] AC 765
• R (on the application of Jackson) v Attorney-General [2005] UKHL 56
• R v Secretary of State for the Home Department, ex-parte Simms[1999] UKHL 33
• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
• R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603
• Van Gend en Loos v Nederlandse Administratie der Belastingen, Case 26/62 [1963] ECR 1

Table of Legislations

• Bill of Rights
• European Communities Act 1972 s.2(1), s.2(4), s.31)
• European Union Withdrawal Act 2018
• European Convention of Human Rights
• Human Rights Act 1998
• Parliament Act 1911
• Scottish Act 2016 s.2, Scottish Act 1998 s.28

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[1] Dicey, AV (1885), An introduction to the Study of the Constitution

[2] Van Gend en Loos v Nederlandse Administratie der Belastingen

[3] European Communities Act 1972, s.2(4)

[4]  S.4 ECHR

[5] Anti-Terrorism, Crime and Security Act 2001

[6] A and others v SoS for Home Department [2004] UKHL 56

[7] David Feldman: Brexit, the Royal Prerogative, and Parliamentary Sovereignty

[8] EC Act 1972 s.2

[9] A theory that suggests that Parliament in modern constitution, can be bound by statutes.

[10] Wade, Sovereignty: Revolution or Evolution?’ (1996)

[11] Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution

[12] Pickin v British Railways Board [1974] AC 765

[13]  Right to make or unmake any law

[14] Madzimbamuto v Lardner-Burke (1969) AC 645