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Published: Fri, 02 Feb 2018
In any state there are three primary bodies
The rise of Parliamentary sovereignty coincided with the gradual erosion of the prerogative powers of the crown. By the end of the 17th century the powers of the Crown had been reduced. Both the Bill of Rights Act 1688 and the Act of Settlement 1700 declared parliament as the supreme law-making body. Therefore no new law could be passed without the consent of parliament. According to Dicey sovereignty consists of the right to make any law whatever and the principle that legislation made by Parliament cannot be overridden by any other body. There are no bodies to override laws made by Parliament. Since the Case of Proclamations (1611) the crown has no common law power to legislate. The Bill of Rights 1689 established that the Crown could not set aside Acts of Parliament. King James II had claimed to be able to do this as part of the ‘royal prerogative’. It is possible of course for Parliament to give the Crown power to make delegated legislation, and this can be used to revoke Acts of Parliament. As a result of the UK having no written constitution and because of the doctrine of parliamentary supremacy, the courts in the UK have no general power to review or set aside legislation (Pickin V. British Railways Board  AC 765. EU law may be effective in the UK and can override Acts of Parliament, but the power to do so is given by Parliament in the European Communities Act 1972.
What is the significance of sovereignty? Firstly the UK legislation is not superseded by principles of international law-although it is presumed that the UK would never legislate to the contrary of international law. Secondly, UK legislation is not subject to higher principles of natural law. Next there are no time limits on legislation passed by Parliament- UK Acts of Parliament do not lapse in time and finally every piece of subordinate legislation must be able to point to the fact that it derives its authority from the sovereign of parliament.
So how does the draft written constitution affect Parliament Sovereignty? Clause 2.1(a) the function of Parliament is to legislate. Government is responsible for drafting most legislation, and Parliaments function is rather that of formal enactment f legislation. Parliament’s functions may be summarised as, to provide the personnel of government, to legitimise government actions, to subject matters of public policy and scrutiny and influence. 2.10 of the draft copy of the constitution has it that parliament must sit once a year, the duration of our Parliament is from summons to dissolution by the Monarch (from once election year to the next). Each Parliament is divided into ‘sessions’ which usually run from November to October each year. The Monarch ends the session by ‘proroguing’ Parliament. The main significance of this is that public bills which have not passed in session will fail.
Clause 1.1 States that it’s is the Queens Parliament, the Queen has the power to make or unmake any law, she can in fact abolish Parliament but would she? As there is no written authority to support this. The Crown (in the sense of central government as a whole) has legal authority to do anything permitted. Parliament confers powers either on the Monarch (eg power to make delegated legislation by Order or Council), or on Ministers. When exercising a statutory power the Crown must act within the ambit of the power conferred by Parliament. Dicey defined the Royal Prerogative as ‘the residue of discretionary authority, which at any given time is legally left in the hands of the Crown’. The Royal Prerogative consists of the core powers of government such as the powers to appoint Ministers, and deal with foreign states, which have always belonged to the Crown, without needing to be granted by Parliament.
Clause 2.2, Parliament exercises its authority by means of Acts of Parliament, and not by discretionary orders. However, each House does have discretionary powers enabling it to discharge its functions. For example, the House of Commons select committees have powers ‘to send for persons, papers and records’ in the course of their investigation of departmental policy. Both the House of Commons and the House of Lords have a privilege jurisdiction, designed to enable them to manage their own proceedings without outside interference. This is part of the law and custom of Parliament. The main privileges of the House of Commons are firstly, freedom of speech this is based on Article 9 of the Bill of Rights 1689. Secondly, the right to control its own composition and procedures, the House may determine its own composition, e.g. by expulsion of MPs on grounds of legal disqualification, or unfitness. And finally the right to punish for contempt of the House, whereas the scope of other privileges is defined narrowly by Commons’ precedent, contempt is broadly defined as ‘any act which interferes with the business of the House such as misconduct in the House, such as interrupting proceedings, disobedience to rules or orders of the House, presenting falsified documents to the House, misconduct by members such as accepting bribes and bringing the House into disrepute (for example, where the media question the motives of MPs).
Dicey and other writers that are of the view that parliamentary sovereignty is legally absolute have always accepted that it is in practice limited. Dicey referred to both internal and external limits in one of his passages. Parliament is a representative body and therefore, according to Dicey, will not wish to enact legislation which harms those it represents (the ‘internal’ limit). If it did, its laws would be ineffective because they would be disobeyed (the ‘external’ limit). If Parliamentary Sovereignty is legally absolute, it is difficult to see how any other principles can be regarded as fundamental in the UK constitution. However, Dicey regarded the rule of law as standing with parliamentary sovereignty as ‘the two principles which pervade the whole of the English Constitution’. Parliament could enact retrospective penal legislation. It could confer powers on government which rendered it immune from control by the courts. Such legislation would be ‘unconstitutional’. Despite this Dicey and others have suggested that the apparent conflict is not real. The argument is partly based on the recognition of practical limits to Parliament’s authority. But it goes deeper than that, in suggesting that there is a necessary link between the two doctrines. Dicey said that ‘the sovereignty of Parliament favours the supremacy of the law’. Because Parliament was a complete body, consisting of Queens, Lords and Commons, its will had to be expressed in a form of words agreed by each component part, in the form of an Act of Parliament, and not in some informal way. Its will has the form of general rules, or laws. So the exercise of sovereignty involves the creation of laws. Dicey also thought it important that government and Parliament were separate, so that Parliament as an institution remained determined to control government by means of law.
But what about the limitations to Parliamentary sovereignty? Dicey says there are no limitations; however clause 2.4 of the draft states that ‘the subject matter and the manner and form of legislation are to be determined by Parliament’. Do we not have this already with the entrenchment of acts such as the Bill of rights, by stating that its provisions should prevail over other legislation, and by laying down special procedures for any legislation amending the Bill of Rights? The traditional view is that this type of entrenchment is not possible without constitutional change affecting the doctrine of parliamentary sovereignty itself. Also clause 4.8 states that the Supreme Court upholds the sovereignty of Parliament and has no power to invalidate an Act of Parliament save where Parliament gives it jurisdiction to do so.
Clause 2.1b Devolution within the UK poses many problems for the structure of the UK constitution. The Scotland Act 1998 brought about a power-sharing arrangement by which government functions other than those specifically reserved to the UK Parliament are devolved to the Scottish Parliament (non-reserved matters). These include areas such as Health, education, civil and criminal law. So what is the effect on Parliamentary sovereignty? The Scottish Parliament is a subordinate legislature, with limited powers. It cannot for example, legislate for England and Wales, or repeal the Human Rights Act 1998. The UK parliament is therefore still able to legislate for Scotland. However, the Scottish Parliament can override Acts of UK Parliament, in non-reserved areas.
Parliament can legislate with legal effect outside the UK, Mortensen v. Peters (1906) 14 SLT 227. There is a presumption that an Act does not extend to territory outside the UK, but this can be rebutted by plain words to the contrary. For example, s.134 (1) of the Criminal Justice Act 1988 makes it a criminal offence, punishable in the UK, for a public official to torture someone, whatever his or her nationality and wherever he or she commits the offence (thus giving effect to international law).
The sovereignty of Parliament will only be lost under two conditions. The first condition would be where parliament decided, perhaps on the authority of the people tested in a referendum to abolish the sovereignty and to place its residual authority under that of a written constitution to be adjudicated upon the judiciary. The second condition would be where the judiciary itself underwent a ‘revolution’ in attitude, and accepted that parliament was no longer the sovereign law making body and that judges owed allegiance to the alternative, or different, sovereign power.
So to conclude, where a written constitution exists, it will have come into being either by a grant of independence from a previously sovereign power or through a revolution- peaceful or otherwise. Under a written constitution the constitution might limit the power of the legislature, so that it could infringe fundamental rights, or change the constitution itself, by the ordinary process of legislation. The constitution could do this by the device of entrenchment, under which fundamental parts of the constitution could only be changed by a special procedure. The legislature would not then be sovereign. So clearly it is possible for the UK to have a written constitution, but is it legally, or logically possible for Parliament to transfer its sovereignty to a written constitution? This point has never been tested, but Dicey accepted that Parliament could abdicate sovereignty.
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