Neither ‘orthodox’ nor ‘self-embracing’: Studying the redefinition of parliamentary sovereignty

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Abstract

For the last 50 years, much ink has been spilled on the UK’s parliamentary supremacy debate: Is it orthodox? Is it self-embracing? Legal and political facts have changed the nature of parliamentary supremacy. Since 1972, the accession of the UK to the EU, the recognition of EU law primacy and the disapplication of domestic law have changed our understanding of parliamentary supremacy under the Diceyan theory. It follows that the study of the doctrine must ask a different question. What are the factors shaping the nature of parliamentary supremacy? The answer is complex, as it needs to be carried out with subtlety. Focusing on the higher legislative power of MPs is not of much help. A change of allegiance from British courts to the EU as well as a strong political will of MPs to legislate in accordance with EU law are some of the circumstances moulding the nature of parliamentary supremacy. Still, Brexit remains our biggest question. In the light of a post-Brexit reality, the evolving nature of parliamentary supremacy will become more apparent. The UK’s political relationship with the EU and the future influence of EU-derived law in the UK’s legal system will inevitably result in a new redefinition of the doctrine.

Introduction

Parliamentary sovereignty lies at the heart of the British Constitution. Nonetheless, the qualification of Parliament’s sovereignty evinces the redefinition of the principle. Nowadays, trying to assert a definite view of parliamentary supremacy, as either orthodox or self-embracing,[1] is no longer relevant. Even if courts consented to a continuous parliamentary supremacy, their legal rulings would result in the redefinition of the rule. In Jackson,[2] it was decided that Parliament could establish limits on its successors. Accordingly, Dicey’s principles[3] of parliamentary sovereignty were overruled. For these reasons, the understanding of the ever-changing nature of parliamentary supremacy is far more important than a stringent classification of its contemporary nature.

Through time, parliamentary supremacy has been organically redefined as a result of political and legal facts. Under these circumstances and by a holistic approach, the way in which British judges, the European Union (EU) and constitutional conventions have redefined the doctrine will be studied. Further consideration will be given to the implications of its redefinition and current direction.

Our understanding of Parliamentary Sovereignty

In UK constitutional law, parliamentary sovereignty is understood as the principle that confers supreme legal authority to the UK Parliament. As a result, Parliament can create, change or repeal any law. Parliaments cannot pass laws which can limit the legal authority of future Parliaments and generally, courts cannot overrule Acts of Parliament.[4]

Regardless if parliamentary supremacy is a creation of the common law[5] or if it is not,[6] judicial review remains a key mechanism for its scrutiny. The ultimate justification for Parliament to decide the content of the law is that it is the highest democratic body under the Constitution.[7] Nevertheless, even though the validity of an Act of Parliament cannot be challenged,[8] as Green explains, courts can quash Acts for unreasonableness, illegality, procedural irregularity and disproportionality.[9] Therefore, the enacted legislation by Parliament can prevail as long as it cannot be quashed by a judicial ground. As a result of the exercise of such judicial scrutiny, parliamentary supremacy can be safeguarded.   

Consequently, a bipolar sovereignty exists between the legislature and the courts.[10] Through this bipolarity, courts can establish limits on Parliament when needed, namely if it legislates against fundamental human rights.[11] Accordingly, a balance between the supremacy of Parliament and the rule of law can be achieved. Nonetheless, an opposition between the narratives of democratic positivism and liberal constitutionalism can be found.[12] Following Hunt’s argument (as cited in Allan), Parliament ought to earn the due deference of the courts;[13] it should justify its decisions and the validity of their worthiness.[14] However, as Allan points out, courts must be convinced by these reasons and not only by the expertise or procedural competence of Parliament.[15] An error could be made either by a public official in regards to the balance of private rights and public interest or by a body accountable to Parliament.[16] In this way, through the existence of a bipolar sovereignty, parliamentary supremacy and the rule of law can co-exist and endure.

Different from the operation of bipolar sovereignty, parliamentary supremacy lost its legislative momentum after the accession of the UK to the EU. According to Goldsworthy, statutory interpretation should go in line with Parliament’s legal authority.[17] Hence, statutory interpretation should not entail a co-authorship of a statute.[18] Notwithstanding, the supremacy of EU law has demonstrated that Parliament retains its legal authority to enact legislation to the extent that it does not contravene EU law. Consequently, having two primary legal authorities coming from Parliament and the EU poses a major challenge to courts in terms of statutory interpretation.

In this vein, as Lord Neuburger quoted from Lord Millett: “the doctrine of parliamentary supremacy is [not] sacrosanct, but…any change in a fundamental constitutional principle should be the consequence of deliberate legislative action and not judicial activism”.[19] Undoubtedly, the 1972 Parliament took such deliberative legislative action when it enacted the European Communities Act 1972 (ECA) to incorporate EU law into domestic legislation. However, when understanding the nature of parliamentary supremacy, considering the effects in the long-run of EU membership on the sovereignty of the UK Parliament is vital. 

The Parliament of 1972 shifted the balance of power within the British Constitution. Sections 2(1), 2(4) and 3(1) of the ECA created a power in national courts to protect individual rights which could be infringed upon by upholding a domestic law which contravened EU law.[20] Within this framework, British courts are compelled to disapply an Act of Parliament, a rule of the common law or any secondary legislation.[21] According to Lord Bridge, granting interim relief in appropriate cases is a logical recognition of the supremacy of EU law.[22] Nonetheless, the operation of this power which was not expressly conferred by Parliament inevitably redefined the scope of parliamentary sovereignty over the judiciary.

Furthermore, Barber emphasises that courts have the political capacity to alter the doctrine of parliamentary sovereignty.[23] Courts have recognised a higher legislating legal authority than Parliament: the EU. According to Barber, the House of Lords (HoL) decided to exercise such political capacity in Factortame.[24] Yet, if this argument is followed, it would be assumed that the HoL in Factortame had the power not to alter the principle of parliamentary sovereignty through its judicial ruling. It follows that, despite Barber’s assertion, such political capacity was firstly exercised when the ECA came into force and not by the decision of the HoL in Factortame.

Accordingly, the effect of parliamentary sovereignty was redefined when British courts turned their allegiance to the EU. Wade (as cited in Barber) observed that the allegiance of the courts changed when territories left the British empire.[25] In this regard, Wade’s allegiance argument could be analysed in the context of British courts after 1972. Arguably, the accession of the UK to the EU shifted the allegiance of British courts to a more EU one. Thus, EU law redefined the scope of parliamentary sovereignty in the sense that Parliament, to some extent, lost the allegiance of its judiciary.

By all means, the emergence of new resolution mechanisms for the courts, namely disapplication,[26] redefined the effect of parliamentary supremacy. That being said, it is crucial to realise that the conflict between two Acts raises significant questions about the will of Parliament. The validity of the ECA depicts the continuous will of Parliament to be subjected to EU law. However, while Parliament has accepted its subservient status, due to its EU membership, it is reluctant to accept every law that comes from the EU without hesitation. As a result, the political constraint to legislate in dissent with EU law has redefined the scope of parliamentary supremacy.

Evidently, there will be authors who may be opposed to this last assertion. According to Young, disapplication is not a challenge to parliamentary sovereignty.[27] It is applied to the extent that domestic law does not contravene direct EU legislations.[28] Thus, when courts disapply a statute provision they safeguard the will of Parliament.[29] Nonetheless, such questions of law reflect a clear opposition in the way that Parliament and the EU would legislate the same matter. This duality gives evidence of an existing legislative divergence between Parliament and the EU.  

Similarly, Wade reveals that judges in some instances depart from common rules, namely parliamentary supremacy, due to political necessity.[30] In Factortame, following the preliminary reference made by the HoL to the Court of Justice of the European Union (CJEU) as to the legality of the Merchant Shipping Act 1988,  judges decided to bind the Parliament of 1988 by the Parliament of 1972 in order to give primacy to EU law. Thus, such departure is mainly the result of a political fact, the UK’s accession to the EU.[31] Because of this, the effect of parliamentary sovereignty, under an orthodox view, was neutralised. Notably, the UK’s EU membership, which was established during the Parliament of 1972, influenced the way in which new Parliaments legislated. Thereby, it will be useful to ascertain how the emergence of constitutional conventions after the UK’s accession to the EU has redefined the doctrine of parliamentary supremacy as well.

Parliament’s subservient behaviour when legislating may have created a constitutional convention. In 1972, Parliament was assured that despite its EU membership its sovereignty would not be affected as it was legally indestructible.[32] Nonetheless, as the Parliament of 1972 feared, such membership did result in a subordinate legislative behaviour from Parliament.[33] As Wade, Laws LJ[34] and others agree, Parliament could ultimately repeal the 1972 Act. However, upholding that power does not necessarily mean that the effectiveness of parliamentary supremacy since then has remained untouched. No Parliament enacts laws expecting them to be disapplied later on.[35] Thereupon, Parliament’s ability to legislate is supreme to the extent that it does not contravene EU law.[36] This prevents its laws from being disapplied. In that spirit, it could be argued that a constitutional convention started to emerge when ministers legislated in a subservient way in regards to EU law.

Moreover, Parliament has always loyally and promptly accepted its obligation to comply with the Council directives issued by the CJEU.[37] In the past, neither UK courts nor Parliament have engaged in an inter-institutional dialogue to shield their dissent.[38] This has given compelling evidence of Parliament’s willingness to remain subservient towards the EU. Similarly, in regards to the Human Rights Act 1998, Parliament has addressed and acted accordingly with almost every declaration of incompatibility.[39] It follows that, as Davis cleverly suggests, Parliament should override declarations of incompatibility to avoid the very emergence of a constitutional convention that prevents it from doing so in the future.[40] With this in mind, to what extent can we be sure that a constitutional convention of subservience has not already emerged between the UK Parliament and the EU?

Brexit

In the light of Brexit, constitutional conventions play a key role for the redefinition of parliamentary sovereignty. On 26 June 2018, the European Union (Withdrawal) Act 2018 became law after 270 hours of parliamentary consideration.[41] Despite the significant amount of derived EU law that remains in the UK after Brexit, for the most part, Parliament abandoned its subservient role when it formally left the EU on Friday, 31 January 2020. Yet, in the run-up to Brexit, unsurprisingly, the doctrine of parliamentary supremacy was again redefined by the creation of ministerial amendment powers to address any deficiencies between retained EU law and domestic law. [42] Throughout the passage of the Withdrawal Act, the breadth of such powers proved controversial since they allowed Ministers to amend domestic law. [43] The point of contention was that such amendments could have been done through an Act of Parliament. Consequently, while the creation of ministerial amendment powers permitted the enactment of legislation in time for Brexit, this could not have been attained without the redefinition of the principle of parliamentary sovereignty.

On the contrary, there are authors who conclude that even with the repeal of ECA by Parliament, the orthodox rule of parliamentary sovereignty would not be reestablished.[44] After Factortame, an authority was created to place an effective limit of a Parliament on its successors.[45] However, disapplication will remain an available remedy for retained EU law. It is hard to believe that such a controversial remedy has not been repealed but absorbed by Parliament. With this in mind, a further question needs to be promptly addressed by the academic world. After Brexit’s transition period, to what extent will parliamentary supremacy be affected by withholding the mechanism of disapplication or any retained EU law which was not originally created by Parliament itself? Whatever the answer, disapplication is a mechanism which has been underestimated. It may curtail the scope of parliamentary supremacy even when the UK has abandoned its EU membership. In the future, such mechanism could be applied beyond EU-derived domestic legislation.[46]

Consequently, any intent to substantiate the principle of parliamentary sovereignty will remain unsustainable if Parliament disregards its own weaknesses. In the run-up to Brexit, Parliament prevented devolved institutions to amend retained EU law.[47] Nonetheless, while it reasserted its supremacy over devolved institutions, it evidently failed to reassert its supremacy in other areas. Thereupon, it can be observed how the principle can always take an uncertain direction. Still, it is underwhelming to witness a clear assertion of parliamentary sovereignty only when Parliament establishes limitations on devolved institutions. All things considered, for Parliament to reassert its sovereignty after Brexit it would have to, first and foremost, address these deficiencies.

Conclusion

In conclusion, for parliamentary supremacy to remain at the heart of the British Constitution, its nature must be an ever-changing one. In the UK, parliamentary supremacy is a political and legal axis. Its course and consequential effects have shaped the way in which different institutions, namely the judiciary and the EU, interact and influence each other. Nevertheless, as other authors have considered,[48] whichever direction parliamentary supremacy takes its study should be mostly focused on the evaluation of its role as a safeguard to protect the sovereignty of Parliament within and outside the UK.  

Further, the UK’s accession to the EU resulted in the development of constitutional conventions. For this reason, in the context of Brexit, taking constitutional conventions forward should be cautiously observed as they may pose a greater challenge to parliamentary supremacy than devolved institutions. Their future influence on the legislating behaviour of pivotal characters, such as MPs and judges, makes them worth being the subject of a wider study.


[1] NW Barber, ‘The afterlife of Parliamentary sovereignty’ (2011) 9(1) International Journal of Constitutional Law 144, 145.

[2] R (on the application of Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262.

[3] Albert V Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Indianapolis: Liberty Fund 1982).

[4] ‘Parliament’s authority’ (UK Parliament, 2020) <https://www.parliament.uk/about/ho w/role/sovereignty/> accessed 12 November 2019.

[5] Jackson (n 2) [102].

[6] Fergal F Davis, ‘Parliamentary Supremacy and the Re-Invigoration of Institutional Dialogue in the UK’ (2014) 67(1) Parliamentary Affairs 137, 138.

[7] Barber (n 1) 148.

[8] Dicey (n 3).

[9] David A Green, ‘The fragility of parliamentary sovereignty’ (The Financial Times, 3 May 2016) <https://www.ft.com/content/b6763fd3-2a3b-348f-8a29-1c08a3c5f955> accessed 12 November 2018.

[10] Barber (n 1) 153.

[11] ibid 153.

[12] T Allan, ‘Human Rights and Judicial Review: a critique of “due deference”’ (2006) 65(3) Cambridge Law Journal 671, 673.

[13] ibid.

[14] ibid.

[15] ibid.

[16] ibid.

[17] Tina Orsolic, ‘Parliamentary Sovereignty: Contemporary Debates’ (2011) 7(2) European Constitutional Law Review 336, 339.

[18] ibid.

[19] Davis (n 6) 138.

[20] R v Secretary of State for Transport, ex parte Factortame (No.1) [1990] 2 AC 85 (HL) (Lord Bridge).

[21] ibid.

[22] HWR Wade, ‘Sovereignty: Revolution or Evolution?’ (1996) 112 Law Quarterly Review 568, 572.

[23] Barber (n 1) 150.

[24] R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603 (HL); Barber (n 1) 150.

[25] ibid.

[26] Factortame No.1 (Lord Bridge) (n 20).

[27] Alison Young, ‘Benkharbouche and the Future of Disapplication’ (UK Constitutional Law Association, 24 October 2017) <https://ukconstitutionallaw.org/2017/10/24/alison-young-benkharbouche-and-the-future-of-disapplication/> accessed 16 November 2018.

[28] ibid.

[29] ibid.

[30] Wade (n 22) 574.

[31] ibid 574.

[32] ibid 573.

[33] ibid 574.

[34] ibid 569.

[35] Barber (n 1) 154.

[36] ibid 149.

[37] Factortame No.2 (Lord Bridge) (n 24).

[38] Davis (n 6) 147.

[39] ibid 145.  

[40] ibid.

[41] Mark Elliott, ‘1,000 words / The European Union (Withdrawal) Act 2018’ (Public Law for Everyone, 28 June 2018) <https://publiclawforeveryone.com/2018/06/28/1000-words-the-european-union-withdrawal-act-2018/> accessed 29 October 2018.

[42] ibid.

[43] ibid.

[44] Barber (n 1) 152.

[45] ibid 153.

[46] Young (n 27).

[47] Elliott (n 41).

[48] Barber (n 1) 154.

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