The principle of parliament sovereignty is fundamental in the British constitution. In this essay, the role of the courts and its relation to parliament sovereignty will be explored. Three issues have been raised in this argument; the nature of British constitution, the supremacy of European Union law and Brexit. The focus of this essay is to establish the claim that traditional conception of parliamentary sovereignty remains and had not been modified by courts.
British Constitution and parliamentary sovereignty
Following constitutionalist views, there are two different ways of viewing the unwritten British constitution. Through the scope viewed by the legal constitutionalists, it’s vital to limit the government through the law and in some particular principles embedded in common law. They see the huge risks in giving absolute power to the politicians and therefore believe that courts should set the limit and constrain the power for the sake of people well-being. In contrast, political constitutionalists trust majoritarian democracy and the political process instead of a dominant role of the judiciary in the constitution. They believe the elected representatives should have the utmost power over the law as they are people-elected through the democratic process, thus voicing over people’s concerns and opinions. In the judiciary section, judges are not appointed through an election, thus should not represent the public opinion. According to J. Goldsworthy: “it would be wrong for the courts to alter parliamentary supremacy because they could impose all kinds of limits on parliament’s authority without any democratic input”. Therefore, the court can attempt to initiate change, but they can succeed only if other branches of government are willing to accept it.
However, despite these two different views, it is widely agreed that the parliament holds the utmost power and therefore sovereign. The courts can never overrule or strike down any legislation made by the legislators. Declaration of incompatibility with the European Convention on Human Rights can be made by the judges. But, the declaration has no legal obligation on the legislators to change the law. Under the Human Rights Act 1998, the role of the court is to interpret the law so far as possible consistently with the European Union law and gives effect to directly applicable European Union law. Hence, the main debate lies on the relatively vague term ‘so far as possible’, which might seem at certain times, challenging the parliament sovereignty. In most cases, the courts usually work hand in hand with other institutions of the United Kingdom constitution including legislation institution to ensure the public order. However, in some rare cases, the courts have had different opinions on the way the parliament do its job. This will be explained further in the later part of the essay. The thin line and the grey area between the role of the legislators and the legislation interpreters have caused certain disputes. In this kind of situation, it might seem like the parliament’s sovereignty is being challenged by the power of the court.
Some of the outstanding academics already clarified this confusion. According to Professor Tomkins: “the principle of parliament sovereignty has been recognized as fundamental in the United Kingdom not because the judges invented it but because it has been for centuries accepted as such by the judges and others officially concerned in the operation of our constitutional system”. The principle was not established by the judges and hence, they themselves do not have the power to change it. Meanwhile, Professor Allan suggests the parliament sovereignty is a construct of the common law. From his point of view, the courts’ role is to determine the doubtful cases which common law has questions that need to be resolved. Professor Craig shared the same belief in his statement: “it was not beyond peradventure that the court would disapply any statutory provision violating fundamental rights”. These views do not suggest that parliament sovereignty is being challenged by the courts. In fact, the court is actually assisting the parliament and is working together to make a fair, just and reasonable decisions especially in human right cases.
Supremacy of European Union law and parliament sovereignty
Professor Mark Elliot in one of his writings had mentioned that the most fundamental principle in European Union’s legal system which is the supremacy of European Union law might seem to contradict with the most basic yet core principle of United Kingdom constitutional system which is the parliament sovereignty. In supporting the idea that constitutional revolution had occurred, Professor Sir William Wade argued that by United Kingdom’s entry to the European Union, the ultimate power of law making that was previously held by the parliament had been transferred to the European Union. As a result, the significance of European Court of Justice notably increased. This has been proven through Factortame Ltd v Secretary of State for Transport which the court disapplied an Act of parliament as it was not compatible with the European Union law. The Merchant Shipping Act 1988 was disapplied by the court as it was contrary to the Common Fisheries Policy and it was executed by the state. However, it can be argued that the issue here lies more on the European law’s supremacy instead of the court’s role in eroding the parliament sovereignty.
Sir William Wade’s view has been rebutted by Lord Bridge which he pointed that the parliament sovereignty has not been revoked by the EU membership. Instead, the parliament voluntarily accepted the limitations that it will be facing when the enactment of the European Communities Act 1972 took place back in the 70s. As a result from this voluntary acceptance, the parliament allows the European Union law to stand above its own Acts of parliament. This also means that the parliament can, whenever it wants, withdraw or revoke the act to gain back its utmost power in lawmaking. Hence, within this meaning, the parliament sovereignty is definitely being sustained despite the existence of European Union law. We can also argue that in Factortame case, the court was successful in disapplying the Merchants Shipping Act 1988 because the British Government voluntarily agreed to execute the changes. It is not too impossible for the state to ignore the ruling, just like in Hirst v the United Kingdom, although this kind of situation does not occur frequently.
Although the above points are supporting the idea of parliament sovereignty is still perfectly sustained, the fact that the parliament is facing limitations and constraints due to the EU law through the role of courts cannot be denied. In 2015, the blanket ban on United Kingdom prisoners’ voting rights was a controversial debate. The Grand Chamber of the European Union Court of Justice had ruled that the blanket ban is a violation of Protocol 1, Article 3 of European Convention on Human Rights. The blanket ban is originated from Section 3 of the Representation of the People Act 1983. The British Government including the Prime Minister at that time, David Cameron, despite being the head of the government and held the highest power in the government, was required to follow the ruling made by the European Court of Justice. However, due to the strong disagreement with the ruling, the British Government rejected it and the blanket ban still remains as the act was not disapplied. Technically, the defiance of British Government to follow the ruling made by the European Court of Human Rights is unlawful. Supposedly, when a case has been decided by the European Court of Human Rights, the Committee of Ministers has the responsibility to execute the court’s ruling. But, in this case, the duty is ignored and the Act of the parliament remains. Despite this is an extremely rare case, it shows that, although the limits are there, the British government and the parliament still have the ability to exceed the limits that were imposed.
Brexit and The Court’s Role in Preserving Parliament Sovereignty
Recently, the current government which is being led by the current Prime Minister, Theresa May from the Conservative Party, was in dispute with the highest court in the land, the Supreme Court. The dispute is involving the Article 50 of the Treaty on the European Union. Following the judgment made in Miller v Secretary of state for exiting the European Union, the issue is centered on the legal and lawful process of making a sensible Brexit plan. The question lies on whether it is within the power and authority given to the government through executive powers to solely decide on it and execute the plan. The government argues that the process does not need the approval of the parliament as it has the prerogative power to enter or exit an international treaty. The prerogative power enables the government to make decisions related to international relations and the conclusion of treaties.
However, the recent ruling from the Supreme Court empowers the parliament to vote for the start of the Brexit legal process. The court argues that due to the sovereignty of parliament, the rights in domestic law cannot be overruled by a statute. Since the European Communities Act 1972 was introduced by the parliament which established the rights in the domestic law, it can only be overridden by an authority from an Act of Parliament. Therefore, Article 50 is only effective by an act of parliament. From this situation, the court is apparently playing its role in deciding the involvement of parliament in the Brexit planning process. It seems like the court is favoring the involvement of the parliament in order to preserve the concept of parliament sovereignty by retaining legislative body’s supremacy above all other government bodies including the executive body. Undeniably, one of the main reason for the United Kingdom’s departure from the European Union is to regain full control and revoke any assumption of parliament sovereignty’s erosion. Therefore, the court views that parliament involvement in the Brexit process is significant to show that parliament sovereignty has been fully restored without any doubt. The Supreme court’s ruling makes it clear that it is illegal to exclude parliament from the process. In this case, instead of courts imposing constraints on the parliament, it might appear as if the court is working hand in hand with the parliament in conserving the parliament sovereignty.
As a conclusion, it is not necessarily accurate to say that that the courts are modifying the traditional conception of parliamentary sovereignty by imposing constraints. The rule of law has stated that no one is above the law and the law is made by the parliament. It is true that the parliament has the power to make or unmake any law it wants. But the process of enacting a bill into the law is extremely complicated and difficult. Considering the British legal historical background which had proven that the law has been established on a solid ground and supported by the judiciary institution for centuries, parliamentary sovereignty traditional concept has not been challenged or modified by the courts. In fact, it had been embraced by courts for centuries up until now. Therefore, based on the points mentioned above, the claim on the traditional modification on parliamentary sovereignty has been made by the courts should be dismissed.