Parliamentary sovereignty is defined via Dicey as “the right to make or unmake any law what ever, and, further, that no person or body is recognised by the law of England as having a right to over-ride or set aside the legislation of Parliament”. In this essay I will discuss the prose of parliamentary sovereignty being overruled by EU law and the UK’s statutory recognition of human rights and look at academic commentators and their views regarding these issues and whether the statement is correct in my view.
It can be argued that parliamentary sovereignty can be seen as permanently obsolete by the supremacy of EU law, this was best showcased in the Factortame case. This involved Merchant Shipping Act (1988) stopped Spanish companies from registering their boats as British boats to comply with the UK’s fishing quota. However, the House of Lords were insistent that this was not compliant with EU law and as such should be revoked. This case proves how parliamentary sovereignty is in fact obsolete and it is superseded by EU law and it is no longer the supreme legislative body within the UK. This was discussed by Wade in which he stated “disapplying” the House of Lords meant the main legislative body in the UK was undermined and led to a legal “revolution”. This led to commentators noticing more and more that EU law was supreme, and it had replaced parliamentary sovereignty. Parliament can insist that domestic legislation — either normally, or in terms of particular Acts — is to triumph over EU law. This follows because the default primacy enjoyed by EU law in the UK is itself attributable to an Act of Parliament — that is, the 1972 Act — and Parliament remains capable of altering, intervening or even repealing that Act.
In Miller, the majority’s analysis supports Miller majority fails to make clear how its analysis relates to the position adopted by the Supreme Court in the HS2 case. It has led to questions being asked over whether Parliament is not sovereign whilst the UK is a member of the EU, albeit that that loss of sovereignty has come about because it is what Parliament wanted. Parliamentary sovereignty can be used instead of the EU supremacy; it does not qualify or limit that principle. However, it appears that sovereignty of Parliament and the supremacy of EU law appear to be fundamentally incompatible. Their reconciliation can be achieved by recognising that they operate in different legal spheres, despite them coming into contact with one another, Parliament is sovereign as a matter of UK law. In contrast, the EU supremacy principle is binding upon the UK as a matter of EU, and so ultimately international, law. So while the UK as a State is bound by its Treaty obligations to abide by EU law, this does not in itself require parliamentary sovereignty to be denied as a domestic legal principle. Nonetheless this was a huge factor in the Leave campaign for Brexit, and was one of the main reasons voters turned out to leave the EU.
European Union Act 2011:
The European Union Act 2011 restated the sovereignty of parliament, this was achieved by the requirement of an act of parliament to ratify treaties as well as need for a referendum to be held. ‘Where the European Council has recommended to the member States the adoption of a decision under Article 42(2) of TEU in relation to a common EU defence, a Minister of the Crown may not notify the European Council that the decision is adopted by the United Kingdom unless – (a) the decision is approved by Act of Parliament and (b) the referendum condition is met.” This act supports the view that parliamentary sovereignty hasn’t been rendered obsolete, in fact its being reinstated by the introduction of new provisions.
Human Rights Act 1998:
After the introduction of the Human Rights Act (1998) (HRA), there is now a greater weight placed upon the protection of basic human right. Section 2 of the human rights act directs the courts to ‘have regard to the jurisprudence of the different enforcement and supervisory bodies in Strasbourg’. Section 2 has modified Parliamentary sovereignty by requiring courts or tribunals determining questions which have occurred in connection with the Convention rights to take into account the decisions of Strasbourg (ECHR and Committee of Ministers) so far as is relevant. However, the courts are required simply to take into account the jurisprudence of the bodies of Strasbourg, and are not bound by it. Section 2 has damaged Parliamentary sovereignty as Parliament’s law-making powers have been severely limited by the ECHR. This is backed up by the case of R (Ullah) v Special Adjudicator. Within the case Lord Bingham stated that “it follows that a national court subject to a duty such as that imposed by Section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law, it is open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states parties to it”. The human rights act has achieved its desired balance by retaining Parliament’s legal right to pass legislation which is discordant with Convention rights. Section 3 of the HRA means courts must interpret primary and secondary forms of legislation in order to be compatible with the articles in the European Human Rights Convention. This indicates that courts must interpret this views and as such these views will become subjective depending on the court and the judge making this inequitable. However, Section 4 reduces its political capability to do so because the declaration serves as a political tool. it remains open to the Government on how to deal with the court’s decisions. The Government if it believes it suitable to do so may decline to take steps to fix the incompatibility under Section 5 of the human rights act. Parliament may well be sovereign, but as a matter of constitutional repetition it has reassigned substantial power to the judiciary.
To conclude EU law takes priority over UK law because of a convenient legal narrative that parliament intends to make legislation submissive with EU law, and judicial deception when this is not the case. Were parliament to explicitly disregard an EU regulation and state that its statute took priority, English courts would follow it. Whilst with the upcoming issue of Brexit and the instability of the EU, the ultimate right of parliament to sanction a withdrawal from the Union makes light of the idea that it is subsidiary.
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