Parliamentary Sovereignty: An Observation of the UK Law
Name
Institutional
Course
Date
Section A:
- Please explain what is meant by Parliamentary Sovereignty, offering at least one definition and one example of its application from case law. (12 marks)
A layman’s understanding of sovereignty means that which is superior. Parliamentary Sovereignty, therefore, refers to the superiority of parliament against other arms of government like the judiciary and the executive and can therefore enact or repeal any laws of the land. Dicey gives the best description of parliamentary sovereignty by prescribing parliament as that arm of government to make and repeal any law. There is no other organ in government or individual recognized by England’s law that can override the laws enacted in parliament[1]. The whole concept of parliamentary supremacy has, over the years, been the cornerstone of the constitution of the UK and has subsequently been adopted by other commonwealth countries like Canada. Nonetheless, these assertions are more theoretical in nature since it means that parliament can choose to enact laws that are not popular to the masses or opposed by a significant number of people. However, in reality, the political implication of such a move is most unlikely.
For instance, in the 2016 Brexit referendum, the whole idea of parliamentary sovereignty was put to task. Supporters of the Brexit referendum that instigated the need to leave the European Union perceived the European Parliament as a challenge to the Westminster Parliament’s sovereignty since the law allows the national parliament to override registrations from local governments[2]. In contrast, joining the European Union that was then referred to as the European Economic Community, originated from the Westminster Parliament in 1972 through the European Communities Act.
Therefore, the parliamentary supremacy principle can be compressed by simple statements like parliament has powers to pass any laws, that the laws they make do not bind a future parliament, and parliament is not subjected to court proceedings. However, legal scholars have criticized these concepts by arguing that parliament cannot bind itself since they can introduce procedural injunctions because the legislature is constituted and regulated by the laws they pass. The case of R (Jackson) V Attorney-General of 2005 by Lord Bingham demonstrates this doctrine of parliamentary supremacy; the judge asserted that the British constitution’s bedrock lies solely on the supremacy of the Crown in parliament.
- What is the role of the Courts in Protecting the Rule of Law and Parliamentary Sovereignty? (12 marks)
The court system in the UK has played a significant role in the protection of the Rule of Law and supremacy of parliament. The judges that sit in these courts are mandated to fairly hear and determine cases brought to them without any interference from government arms. Therefore, the courts can vindicate an illegal action taken by the government and advise parliament to pass necessary laws to avert such occurrences in the future. The courts are expected to act under the constitution, and any other laws established[3]. Subsequently, the courts have demonstrated their urge to protect the parliament’s supremacy by making rulings on unlawful laws.
Courts are required by law to interpret laws made in parliament and implement them. For instance, the judges had an appealing task when deciding on whether the decisions made by the prime minister were lawful during the prorogation[4]. The court’s interpretation was that the prime minister was within his powers to suspend parliament for as long as he wanted if only the powers had no legal limits. The judge, however, warned on suppressing the sovereignty of parliament by making such a decision. The court further decided that even though the prime minister was within his powers, his actions could frustrate parliament from performing their functions as the legislative body. This was informed by the fact that the UK was on the verge of exiting the EU; hence the prorogation could deny parliament the right to pass the law.
Another notable role courts have to parliament is to ensure accountability concerning the rule of law. The UK constitution maintains that parliament is the only body mandated to make laws, and the implementation process then follows. Nonetheless, the same parliament is required by law to go before the courts to interpret laws that may have legal implications. Therefore, the judicially, through the courts, keep parliament accountable for any laws they pass. The process of accountability is normally a broad one that requires ministers to appear before parliament for scrutiny.
- Explain the effect of joining the European Union had on Parliamentary sovereignty. (12 marks)
The most common limitation for all the member states of the EU is language. Even though there are numerous suggestions to introduce and adopt a common language that could aid in trade, there has not been an attempt to impose it in Europe. The EU has not attempted to change legislative laws or constitutional structures of any of its member states. This is the case since all summits are attended by presidents and prime ministers accompanied by their legal councils[5]. However, the EU has put in place guidelines to ensure that member states maintain common standards in democracy and justice.
Nonetheless, it is notable that the EU has impacted the UK parliament’s sovereignty through the laws they enforce. It is believed that parliament surrendered its sovereignty when it adopted the European Communities Act in 1972 that enabled them to be members of the EU. What followed was that the EU had the authority of requiring courts in the UK to adopt and apply laws formed by the EU. This was detrimental to the UK economy since the government could not reduce VAT or support projects that could benefit its people without seeking a mandate from the EU[6].
The fact that the UK parliament could not make laws that are beneficial to its people informed the EU’s decision. Even though the UK was offered a special status within the EU, the people wanted to maintain their sovereignty regarding lawmaking and implementation.
- Evaluate whether Brexit has really increased Parliamentary Sovereignty by referencing the two Miller cases (2017 and 2019). (24 marks)
The decision to exit the European Union was informed that the UK parliament was suppressed in making its own laws. Therefore, by exiting the EU, the UK increased the sovereignty of their parliament since laws that affected the people could be made without considering those of the EU that were restrictive in nature. Parliament is now able to reduce VAT and take part in the economic project when the need arises[7].
The UK is considered the only democracy in the world that has adopted the parliamentary way of governance. Such an accolade is attributed not only to its being a parliamentary democracy but also to the executive’s dependability for survival. Therefore, this makes the UK parliament the highest authority in the land with no legal backing to its powers. During Miller’s case, judgment from the majority side failed to substantially point out the sovereignty of parliament and how Brexit could impact its powers. Indeed, the majority ruling emphasized the principle of centrality, which indicated that their ruling was more concerned with service as articulated by the membership of EU[8]. This was mainly informed by the fact that the apex court had failed to address the issue in over four decades. Nonetheless, the judges in the ruling in Miller’s case were very economical with information[9].
Hence, the majority side maintained that parliament was able to formulate laws that would include those in the UK law to safeguard its sovereignty independently. This assertion has, however, pushed the whole debate of sovereignty to another level. Nonetheless, since the majority side convinced the court that their assertions are compatible with the UK laws, Miller could not constitute a solid ground to challenge that ruling.
Bibliography
Allan, T. R. (2003). Constitutional justice: A liberal theory of the rule of law. Oxford University Press on Demand.
Anthony, G. (2018). Brexit and the Common Law Constitution. European Public Law, 24(4).
Bulmer, S., & Burch, M. (1998). Organizing for Europe: Whitehall, the British state, and the European Union. Public Administration, 76(4), 601-628.
Gordon, M. (2015). Parliamentary sovereignty in the UK constitution: Process, politics, and democracy. Bloomsbury Publishing.
MacCormick, N. (1993). Beyond the sovereign state. The modern law review, 56(1), 1-18.
Newman, W. J. (2005). The principles of the rule of law and parliamentary sovereignty in constitutional theory and litigation. National Journal of Constitutional Law, 16(2), 175.
Nugent, N. (1996). Sovereignty and Britain’s membership of the European Union. Public Policy and Administration, 11(2), 3-18.
Phillipson, G. (2017). Brexit, Prerogative, and the Courts: Why Did Political Constitutionalists Support the Government Side in Miller. U. Queensland LJ, 36, 311.
Young, A. (2017). R.(Miller) v Secretary of State for exiting the European Union: thriller or vanilla?. European Law Review, 42(2).
[1]. MacCormick, N. (1993). Beyond the sovereign state. The modern law review, 56(1), 1-18.
[2] Gordon, M. (2015). Parliamentary sovereignty in the UK constitution: Process, politics, and democracy. Bloomsbury Publishing.
[3] Allan, T. R. (2003). Constitutional justice: A liberal theory of the rule of law. Oxford University Press on Demand.
[4] Newman, W. J. (2005). The principles of the rule of law and parliamentary sovereignty in constitutional theory and litigation. National Journal of Constitutional Law, 16(2), 175.
[5] Bulmer, S., & Burch, M. (1998). Organizing for Europe: Whitehall, the British state, and the European Union. Public Administration, 76(4), 601-628.
[6] Nugent, N. (1996). Sovereignty and Britain’s membership of the European Union. Public Policy and Administration, 11(2), 3-18.
[7] Young, A. (2017). R.(Miller) v Secretary of State for exiting the European Union: thriller or vanilla?. European Law Review, 42(2).
[8] Anthony, G. (2018). Brexit and the Common Law Constitution. European Public Law, 24(4)
[9] Phillipson, G. (2017). Brexit, Prerogative, and the Courts: Why Did Political Constitutionalists Support the Government Side in Miller. U. Queensland LJ, 36, 311.