QUESTION
Q: The traditional doctrine of parliamentary sovereignty can no longer be regarded as an immutable part of UK constitutional law.
INTRODUCTION
We are asked to consider whether the “traditional doctrine of parliamentary sovereignty can no longer be regarded as an immutable part of U[nited] K[ingdom] constitutional law.” What is to be argued then is that while to restrict the government of the day from ignoring Parliamentary Sovereignty is to restrict deference to alternative means of resolving contemporary ‘governmentality’ exigencies, the doctrine of Parliamentary Sovereignty in the United Kingdom is and will continue to be, insofar as political forces of self-interest do not intervene, conventionally entrenched. A further consideration that will be elaborated on, and one that is intrinsically linked to the aforesaid question, is i) whether or not this transfer of sovereignty, from the Crown to the Parliament, via the 1689 English Bill of Rights, was in essence a transfer of tyranny from the King to the oligarchs of Parliament (Loveland, pg. 29). And if the opposite turned out to be true, ii) whether or not tyranny as it is understood today has been better circumvented as a result of modernity and those features that constitute it, like the “rule of law” and principled adherence to a legal system that allows for legal predictability and sustainability.
THEORIES OF PARLIAMENTARY SOVERIGNTY
The legal doctrine of Parliamentary Sovereignty, as proposed by the Oxford professor A V Dicey, normatively stipulates that past parliaments cannot bind futures; that predecessors cannot negotiate on behalf of their successors. Dicey’s theory can be further broken down into two main components, namely the positive and negative branches of Parliamentary Sovereignty. The former branch or the “positive limb” asserts that Parliament is capable of making (read: positing) or unmaking any law that it wishes, as no other sovereign body exists to legally prevent it from doing so. In addition, the “negative limb” of Dicey’s theory adds that the legality of Acts of Parliament cannot be challenged in any legal court” (Loveland, pg. 24). Furthermore, while a second theory of Parliamentary Sovereignty is said to exist in the United Kingdom, namely that Parliament is “self-embracing” and can subsequently bind itself and future parliaments, constitutional commentators like Ian Loveland have argued that such a theory “has had no political effect in this country” (Loveland, pg. 37). However, a question of whether or not past Parliaments have bound future ones in the United Kingdom, and whether Parliamentary Sovereignty has in effect been tacitly repealed, can only be answered after unpacking the effects of the European Communities Act 1972 and whether such an unexplainable constitutional anomaly allowed for a “regime in which Parliament has bound its successors successfully and which is nothing if not revolutionary” (Wade, pg. 3).
IMPLIED REPEAL, DUALISM, STATUTORY HIERARCHY AND THE ENTRENCHING OF LEGISLATION
Implied Repeal
In 1934, the Court of Appeal held in Ellen Street Estates Ltd. v. Minister of Health [1934] that if an Act of Parliament “appeared inconsistent with previous legislation, the previous legislation must give way” (Loveland, p. 34). The effect of this was that legal statutes were to be impliedly repealed once new statutes that came into existence contradicted previous ones. In addition, such a decision was not inconsistent with an orthodox understanding of Parliamentary Sovereignty, as it allowed subsequent Parliaments to repeal (absolutely) the Acts of their predecessors whenever and wherever they saw fit. Without a written and entrenched constitutional framework to be adhered to, statutes and the rights they confer on those who are bound by them, are left to the mercy of politicians and political agendas of self-interest. While this paper is not intended to outline the instances of malfeasance in United Kingdom politics, the possibility of political transgressions is neither sufficiently checked nor prevented, notwithstanding judicial review in the area of administrative law.
International Legal Theory: Dualism
While the aforesaid case dealt with the domestic legal question of implied repeal, the international legal doctrine of “dualism,” as it stands opposed to “monism,” prevents Treaties and the subsequent obligations that such confer on their respective states (as they are entered into by consenting governments) from automatically being incorporated into domestic law. An express act of incorporation must first be passed in that respective state’s Parliament, acquiescing to its incorporation, in order for that Treaty to become legally binding in the realm of domestic or national law. The United Kingdom currently employs the legal doctrine of “dualism,” a legal state of affairs that was reiterated in both Mortensen v. Peters (1906) and Cheney v. Conn [1968]. In the latter, the claimant alleged that a portion of his tax money “was being used to build nuclear weapons, contrary to the principles of the Geneva Convention, a 1957 treaty which the British government had signed,” but had not incorporated into domestic law (Loveland, pg. 36). Cheney’s argument was rejected on the basis that “an unincorporated Treaty could not have that effect,” namely that of preventing the manufacturing of those sanctioned weapons in Britain (Loveland, pg. 36). As long as the doctrine or theory of dualism continues to be entertained by the United Kingdom, Parliamentary Sovereignty will continue to rule supreme in those cases in which the rights of individuals under Treaty law have been breached.
Entrenching of Legislation
It is often purported that the United Kingdom has an unwritten constitution and that certain statutes are conventionally fundamental and subsequently immutable. Historically however, there have been instances in which entrenched legislation has fallen victim to the ubiquitous and all-powerful will of Parliamentary Sovereignty. For example, in 1853 and in 1932, Parliament enacted legislation “contrary to the Acts of Union,” when it passed the Universities (Scotland) Acts (Trinade, pg. 389). On the flip side, section four of the Statute of Westminster 1931 and other “various Independence Acts did (emphasis added) impose territorial restrictions on the United Kingdom Parliament,” with respect to the sovereignty of their colonial governments and states (Trinade, pg. 388). However, the extent to which legislation is to be entrenched or breached is not predisposed to a test of objectivity or of principle, but is in turn haphazard and a further example of the arbitrary nature of United Kingdom politics (and politics in general) and those political actors and agents who undertake to implement self-interest behind the veil of ignorance that is Parliamentary Sovereignty.
Statutory Hierarchy
In Thoburn v. Sunderland City Council [2002], Laws L.J. held that constitutional statutes fall within a special category that is immune to implied repeal. What this in turn creates, if one is to accept Laws L.J.’s tenuous position, is that we are to imply a hierarchy of statutes. The aforesaid however, is irreconcilable with a previous understanding that all statutes passed by parliament may be repealed either implicitly, by passing subsequent legislation replacing a previous act, or by explicitly doing so using appropriate language. Furthermore, Laws L.J.’s judgement, that constitutional statutes fall in a special category and can only be repealed using express language, provisions or wording that outline such a desire, is completely oblivious to the political reality that dictates that Parliament can easily circumvent this ineffective and judge-imposed restriction.
ANALYSIS
European Communities Act 1972
The United Kingdom passed the European Communities Act (henceforth the ECA) in 1972, thereby making possible the legal entry into the European Community, as it was then known. The most relevant consequence of this act, inter alia, was the subsequent perceived transfer of sovereignty from London to Brussels; it should however be noted that the United Kingdom has only given up sovereignty in those legal areas that are covered by European Community Treaties. However, H.W.R. Wade argues that with the passing of the ECA, the parliament of 1972 bound future parliaments and that this was nothing but revolutionary (Wade, pg. 3).
A further dilemma lies with whether or not future British courts will be able to find an Act of Parliament that intends to abrogate the ECA and therefore the United Kingdom’s membership in the European Union (as per the Treaty of Maastricht 1991), to be legal under EU law. In Costa v. ENEL (1964), the European Court of Justice (henceforth the ECJ) established the supremacy of EU law over domestic law. Furthermore, in 1990, the ECJ in Factortame (No. 2), affirmed Costa and, after the House of Lords deferred the question of whether British courts could disapply acts of Parliament in those cases in which such acts are incompatible with EU law(s), returned an answer in the affirmative, namely that the Merchant Shipping Act 1988 was to be struck down.
While Parliamentary Sovereignty may be said to have been limited by the passing of the European Communities Act in 1972, due to its anomalous binding nature on future parliaments, this cannot realistically be a cogent interpretation of what is both politically possible and feasible given certain impetuses for acting otherwise. Parliament, like in the passing of the Statute of Westminster 1931, limited itself and by doing so, limited future Parliaments. International sovereignty theorists may distinguish between a vertical loss of sovereignty, and a horizontal loss of sovereignty. Such a distinction can disassociate Acts of Independence (as they were implemented during the end of imperialism) that limited the territorial sovereignty of the United Kingdom, from Acts of Subordination (vis-à-vis the European Union) that limit the sovereignty of a national Parliament in the territory it is “supposed” to be the supreme lawmaker in. However, the United Kingdom cannot be said to have neither experienced a horizontal loss of sovereignty, nor, in this instance, and as it applies to this discussion, a loss of Parliamentary Sovereignty, by virtue of having become a member of the European Community (as it was known then). Until the United Kingdom Parliament decides to repeal the European Communities Act 1972 and exit from the European Union (Black-Branch, pg. 79), an Act that can only be undertaken within a framework of Parliamentary Sovereignty, it will continue to be the supreme lawmaker, insofar as it has accepted to be bound by the decisions of the ECJ in those areas that it has, by virtue of incorporating according Treaties into domestic law (read: a positive act of sovereignty), agreed to transfer sovereignty to Brussels.
Human Rights Act 1998
The Council of Europe proclaimed the European Convention on Human Rights in 1950. In 1998, this convention was incorporated into United Kingdom domestic law via the Human Rights Act 1998 (henceforth the HRA). Although the HRA purports to protect individual citizens against both repression and oppression stemming from government abuse of power, in addition to allowing individuals to seek recourse in domestic courts (as per the decision in Van Gend En Loos (1963)), the remedies offered by the HRA are ineffective and vulnerable to political predation.
Firstly, the HRA “is not constitutionally entrenched and judges have powers to strike down secondary legislation but not primary legislation” (Black-Branch, pg. 65). Secondly, judges “can issue declarations of incompatibility if they feel there is an incompatibility between primary legislation and the rights in question, leaving it for Parliament to act on the issue if deemed appropriate to do so” (Black-Branch, pg. 74). Effectively then, the very same rights that are normatively supposed to offer some protection against oppression and repression, are in turn left to the mercy of absolute and arbitrary politicians that may have varying interests as to whether to rectify the deficiency of incompatibility. Allowing politicians the discretion to pass judgement on such matters of human rights may purportedly limit the breadth and depth of Parliamentary Sovereignty as it “fast-tracks” inconsistencies through Parliament with the intention to address such discrepancies, but in reality, the opposite is true.
CONCLUSION
Parliamentary Sovereignty dictates that past parliaments cannot bind future ones; that predecessors cannot negotiate on behalf of their successors. In 1689, following the Great Revolution of 1688, the English Bill or Rights contractually prevented the Crown from governing the English nation by means of royal prerogatives, which previous to the enactment of such Bill had the capacity to suspend the execution of those laws as passed by Parliament (Article 1, Bill of Rights, 1689). In principle, the effect of this legal agreement, between the Crown and the Parliament, was that the nation was to subsequently be (ostensibly) safeguarded “against the tyranny of its King” (Loveland, pg. 29). However, tyranny by one King is no different than tyranny by Parliament, especially when the doctrine of Parliamentary Sovereignty in the United Kingdom continues to be “pompously paraded to justify decisions which are really political choices and not constitutional necessities” (Black-Branch, pg. 77). If the arguments presented in this case carry any validity, Parliamentary Sovereignty in the United Kingdom has and will continue to be an immutable part of the United Kingdom’s body of constitutional (read: conventional) law, offering adherence to the “rule of law” when it is politically expedient (and political self-interests do not dictate otherwise) to do so.
sign on the broken line. 