Parliamentary Supremacy Parliamentary Law Making © The Law Bank Parliamentary Law Making Parliamentary Supremacy 1

Parliamentary Supremacy

Parliamentary Law Making

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Objectives

• Describe the doctrine of Parliamentary Supremacy

• Explain how Parliamentary Supremacy works in reality

• Evaluate the impact of the EU, Human Rights Act and Devolution on Parliamentary sovereignty

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Terms of Reference• Supremacy of Parliament established in 17th Century

when 1689 Bill of Rights enacted• Parliament supreme law maker • Article IX states ‘the freedom of speech and debates or

proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’

• Also – freely elected every three years; levying of tax subject to Parliamentary consent; illegal for monarch to interfere with law as enacted by Parliament save for to grant Royal Assent

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Terms of Reference

• Parliamentary Sovereignty – AV Dicey 19th Century Constitutional Lawyer (Introduction to the Study of the Law of the Constitution 1885)

• ‘The principle of Parliamentary sovereignty means …that Parliament … has the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’

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Parliamentary SupremacyThat means:

1. Parliament’s power is unlimited and it can make law on any topic

2. Validity of Parliamentary law cannot be questioned by anybody including the Courts, the church and the monarchy

3. No one can limit the law making power of any future Parliament. It is impossible therefore for any parliament to pass a permanent law or in other words to entrench an Act of Parliament

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Task• Taking the key principals of Parliamentary

Supremacy answer the following question in regard to your groups area of study.

• You will need to report back to the rest of the class in 20 minutes. Everyone needs to speak

• “To what extent have the EU, the Human Rights Act and Devolution undermined the principal of Parliamentary Sovereignty.”

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European Union• Joined EEC (now EU) 01 Jan 1973• Treaty of Rome (1957) giving effect to law made

by EU by European Communities Act (1972)• ECA s2(1) – all provisions of EU law given force

in this country• ECA s2(4) – UK Acts of Parliament subject to

directly applicable EU law• Since ECA Parliament is no longer supreme law

maker in UK

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European Union

• If conflicting - EU law prevails• EU membership challenges Dicey’s theory• Position clarified by by ECJ in Costa v ENEL

[1964]

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Costa v ENEL [1964] ECJ

C was affected by the nationalisation of the Italian electricity industry, and claimed the procedure had been unlawful because EC law had not been complied with.

Principle –Unlike other international treaties, the treaty instituting the EEC has created its own order which was integrated with the national orders of the member states as soon as the treaty came into force, and as such was binding upon them ... The acceptance by member states of the rights and obligations arising from the treaty carries with it a clear and permanent limitation of their sovereign rights, and any subsequent unilateral act incompatible with the aims of the Community cannot prevail. "the EEC Treaty has created its own legal system which…became an integral part of the legal systems of the Member States and which their courts are bound to apply.""Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.""The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty."



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European Union• If conflicting - EU law prevails• EU membership challenges Dicey’s theory• Position clarified by by ECJ in Costa v ENEL

[1964]• Pre-existing domestic Acts and future Acts must

comply with EU law• Greatest Challenge came from Ex Parte

Factortame No 2 [1991]

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R v Secretary of State for Transport Ex pFactortame (No.2) [1991] HL

D, the UK government enacted the Merchant Shipping Act 1988. C, Spanish fishermen claimed this act affected UK fisheries policy and was contrary to EC Law. They sought an order directing the Secretary of State not to enforce the Act pending a full trial of the issue. The Divisional Court referred the substantive question to the ECJ, but ordered by way of interim relief that the Regulations should not be applied as against C. The Court of Appeal and House of Lords held that no national court had the power to suspend the operation of an Act of Parliament.

Principle –The ECJ disagreed. A national court, which, in a case before it concerning EC law, considers that the sole obstacle, which precludes it from granting interim relief, is a rule of national law, must set aside that rule. The House of Lords thereupon granted an order restraining the Secretary of State from enforcing the legislation in question against C.In response HL granted interim relief disapplying 1988 Act. Lord Bridge expressed acceptance of the supremacy of Community law.Since FactortameUK courts will not apply an Act if it conflicts with Community law.



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European Union• Since Factortamewhere UK legislation conflicts

with EU law UK court must follow EU law• Parliamentary sovereignty is now limited by all

EU law• This is the case until UK decides to withdraw• Parliament now making laws because EU

requires it to and not of its own free will• DoT in 93 estimated 1/3rd of legislation enacted

to implement EU law

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European Union

• UK can repeal ECA because no Act can be entrenched

• In reality this is unlikely:– Trade– Political ties– Military links

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Human Rights Act 1998

• Before HRA citizens were safeguarded by European Convention of Human Rights (1950) ECHR

• Treaty created by Council of Europe• Purpose to prevent war time atrocities recurring• ECHR concerned with protecting Human Rights

and freedoms• UK signed ECHR in 1950

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Human Rights Act 1998• Came into force in October 2000• Incorporated ECHR into UK domestic law• All legislation passed by Parliament must comply

with ECHR• Section 19 requires Gvt minister to declare such• Courts can quash or refuse to apply secondary

legislation if it does not comply• Courts can declare incompatibility of Acts of

Parliament

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Human Rights Act 1998

• Declarations require gvt ministers to make a remedial order

• Since HRA into force 20 declarations of incompatibility– (about 6 overturned by HoL or CA)

• A and Others v Sec of State for Home Department (2004)

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A and Others v Sec of State for Home Department (2004) UKHL 56

Several foreign terrorist suspects detained without trial under the Anti-Terrorism Crime and Security Act 2001 sought to challenge the lawfulness of their detention.

Principle–The House of Lords quashed the Order in Council by which the United Kingdom had purported to derogate from its obligations under the European Convention on Human Rights, and made a formal declaration that certain provisions of the 2001 Act were incompatible with Articles 5 (Right to liberty and security) and 14 (Prohibition of discrimination) of the Convention.

Parliament responded by enacting the Prevention of Terrorism Act 2005, which sought to avoid the incompatibility by substituting house arrest and other restrictions for imprisonment and extending the powers to British citizens. The new Act was subsequently found to be compatible with the ECHR so long as the restrictions imposed were proportionate and reasonable.



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Human Rights Act 1998• Effect of HRA on Parliamentary Sovereignty is limited• Courts have power to declare incompatibility• Do not have power to declare domestic legislation

invalid• Any amendment or repeal must be done by

Parliament• Whilst minister has to declare compatibility there is no

specific requirement that it must be• Parliamentary sovereignty remains

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Devolution• Referendums led to devolved government in

Scotland, Wales and Northern Ireland• Scotland Act 1998 & Government of Wales Act 1998• They can make some laws for their own countries• No need to refer back to Westminster in these cases• Sovereignty removed in these areas• Parliament could repeal • Power retained in areas of defence for instance

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Exam Tip

• A question that asks for consideration of the limitations on Parliamentary Sovereignty also requires an initial explanation of Parliamentary Sovereignty.

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Objectives

• Describe the doctrine of Parliamentary Supremacy

• Explain how Parliamentary Supremacy works in reality

• Evaluate the impact of the EU, Human Rights Act and Devolution on Parliamentary sovereignty

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Documents

Parliamentary Supremacy Parliamentary Law Making © The Law Bank Parliamentary Law Making Parliamentary Supremacy 1