In the well-known case of Jackson v Attorney General UKHL 2005 Lord Steyn noted that Parliamentary sovereignty is “the general principle of our constitution”. Dissimilar theories as to what this constitutional doctrine entails has sparked great academic discussions in the past decades. On one hand Wade has argued in favour of Dicey’s “orthodox view” stating that Parliament can never entrench legislation, as the courts are constitutionally required to follow the latest opinion of Parliament. An alternative view of the doctrine, supported by Jennings, is the “new view” or the Manner and Form Theory, which provide Parliament with the opportunity of contingent entrenchment of legislation. The purpose of this essay will be to examine the doctrine through evaluating its accuracy in the past and the present situation of the UK Parliament.
Under section 2(1) of the European Communities Act 1972 it is made clear that the laws of the European Union shall be incorporated into the national law of the United Kingdom. As a consequence of the Act, EU law will prevail over any domestic piece of legislation that is contrary to the laws of the European Union. This means that if an act of Parliament contradicts EU law, the judges will ignore the Act of Parliament. Thus the notion that parliament’s supremacy shall not be infringed essentially became invalid upon granting the ECA 1972 Royal Assent. This seems to create a problem for Wade’s analysis of Parliamentary supremacy already. R (Factortame Ltd) v Secretary of state for Transport is a good example to display the dominance of EU law. This case involved a claim by a Spanish fishing company who held that the Merchant Shipping Act 1988 was a violation of Community law. The 1988 Act made it a requirement for companies that wished to register in the UK to obtain a majority of UK owners. The result of the case favoured Factortame and the House of Lords granted an injunction. However unconvincingly, the House of Lords in Factortame made an attempt in obtaining parliamentary supremacy according to the “orthodox view”, as the Merchant Shipping Act was not a direct violation of EC law according to Lord Diplock. Despite Lord Diplock’s opinion the facts point to several breaches of Union law. Article 7 of the Treaty of Rome prohibits discrimination on the basis of nationality. Articles 43-48 and 294 in the European Communities Treaty provide members with a right to establish and own companies anywhere within the European Union. The outcome and precedent of this case seems to settle that parliamentary sovereignty is not absolute and rather subject to entrenchment, as in this example shown through incorporation of EU law. Thus Dicey’s idea that no person or body can override or set aside Parliaments legislation seems to fall short.
Following the prior explanation as to why Parliamentary supremacy is not absolute as a consequence of EU law, the attention will now turn to some counter arguments. The explanation that EU law only prevails domestic law because the UK Parliament voluntarily took it upon them selves has been put forth by academics in the debate. The question then becomes whether a self-imposed restraint, as we see with the UK/EU relationship becomes any less restraining than a forced restraint? The answer must be negative. Another proposition that has been made is Parliament’s freedom to repeal the ECA 1972 at any given time. This idea would still be counter to Dicey’s orthodox theory of absolute supremacy because the fact that Parliament, at least for the time being is temporary restrained by another institution means that it has curtailed its right not to be overruled. Bogdanor explained the situation through an example where if he willingly chose to be restrained by chains, with the condition that he could break free at anytime, it would be strange to claim that he had not been restrained during that period. Following the 2010 general election the coalition government compromised their opposing views on the EU and the result became the European Union Act 2011. One important outcome of this act was the requirement of confirmation through a referendum for the transfer of significant powers to the EU. In the period after the 2011 Act arguments have been made that it provides a degree of protection from the EU and that Parliament would obtain a greater degree of sovereignty. The reality of the situation might be viewed differently by considering the fact that it reduces Parliaments legislative power by making it dependent on public approval through referendums. The doctrine of parliamentary sovereignty therefore seems to be more accurately described with the idea that Parliament in fact does allow for contingent entrenchment of legislation, following the principles of the “new view”
The focus of the essay this far has been to examine the existence of Parliamentary sovereignty in the modern UK through some of what has changed since Dicey’s time (1835-1922). In an attempt to fully answer the question the essay will now turn its focus wider by discussing to which extent parliament ever has been sovereign.
Despite the arguable lack of legal constraints on Parliament in enacting legislation there still remains an important discussion regarding the Political restraints it faces. As Parliament’s strongest house, the House of Commons is a body made up of democratically elected MP’s they will unsurprisingly be responsive to the opinions of the general public. In the Jackson case Lord Hope noted, “Parliamentary sovereignty is an empty principle if legislation is passed which is so absurd or so unacceptable that the populace at large refuses to recognise it as law”. On several occasions Parliaments sovereignty seems to have been challenged on this principle. One example can be found within the Asylum and Immigration Bill, which was introduced in 2003 where public opinion gave Parliament “no choice” but to amend the Bill. Another example can be found in the so-called 42-day detention plan in 2008 where the government suggested detention of suspected terrorists without charge for six weeks. The political reality of the uncodified Constitution therefore comes to show that Parliament does not obtain absolute supremacy.
Not only does the incorporation of EU law or political restraints cause trouble for absolute Parliamentary Sovereignty (as discussed earlier). In accordance with Dicey and Wade’s theory Parliament would have the right to make or unmake any law whatsoever, with the exception of binding its successors. The view of plain and absolute supremacy causes an issue for itself, as one could assume that obtaining such supremacy should allow Parliament to bind its successors. Then again if this were to be true, Parliament would always be constrained by an older authority. This exact issue leads to the different ideas of continuing and self-embracing sovereignty. The first view includes that Parliament has the right to destroy its own powers while the latter excludes this right. Wade’s theory is based on continuing sovereignty. As the two views clearly contradict they cannot both exist simultaneously. When claiming that Parliament cannot bind future Parliaments that in itself contradicts the whole idea that Parliament should be capable of making or unmaking any law whatsoever. With an obvious need for exceptions, such a theory appears weak and it certainly cannot claim that Parliament has or ever will be absolutely sovereign.
Disregarding Parliamentary supremacy as absolute should not be seen as denying the whole principle, as it does stand essential to the UK Constitution. Proof that the courts recognise Parliament’s sovereign status can be found in British Railways Board v Pickin where it was specified that judges have no right to disagree with the content of Acts of Parliament, they are restricted to only interpret them. In the Jackson case, the appellant claimed that the Hunting Act 2004 was invalid, as it had been passed under the Parliament Act 1911-49. Wade’s theory as applied by the appellate argued that all acts passed after the 1949 Act were invalid, but the courts rejected the arguments. The 1911 Act clearly changed the Rule of Recognition, the one thing Parliament could not do according to Wade. The outcome of the Jackson case seems to favour the “new view” as opposed to the “orthodox” view of Parliamentary sovereignty. The case provided obiter support of this view as Lady Hale noted in relation to the Parliaments Acts that Parliament could make it easier just like it had made it harder to enact legislation. Lord Steyn took an either firmer approach and explicitly stated that he believed Parliament should have the opportunity of entrenching legislation by requiring a two-thirds majority in both houses of Parliament for certain legislation. A very recent example of Parliamentary sovereignty being preserved in the UK is the ruling on Brexit where it was held that Parliament’s vote was required before Article 50 of the Lisbon Treaty could be triggered.
Referring back to the case of Jackson v Attorney General where Lord Steyn observed: “the classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”. The view taken in this essay has not only displayed evidence to support Lord Steyn’s statement but also further aimed to question the extent to which Parliamentary Supremacy has ever existed. The further development of the doctrine will remain uncertain in the nature that the future is unpredictable, however some degree of development would be unsurprising. This leaves the essay with some concluding remarks:
The reality of the situation is that neither of the two theories examined in the essay have never or will ever be flawless in describing Parliamentary sovereignty, which is important to recognise. As it has been argued, Parliament could after all be said to be subject to regulation by other institutions than Parliament itself, disapproving the “orthodox view”. Despite not having the ability to powerfully conclude on one view being unconditionally correct, the essay has argued and will also conclude with the notion that the “new view” has been and remains the more appropriate way of describing that status of Parliamentary sovereignty in the United Kingdom.