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Sovereignty of UK Parliament

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Britain has a long history of monarchy and its Parliament achieved sovereignty after the
passing of Bill of Rights 1688. Parliament sovereignty is now a principle of the UK
constitution according to which the Parliament holds to the power to create and repeal any
law. A legislation that has been passed by the Parliament cannot be overruled even by the
courts of law. Further, Parliament also holds the authority to end or change any law that has
been passed by a previous Parliament. Suffice to say, Parliament sovereignty is one of most
important parts of the UK constitution. However, there have been certain developments that
have affected Parliament sovereignty to some extent. It seems like Parliament sovereignty has
been somewhat undermined in some events. This essay discusses some of the events that
have had substantial effects on Parliament sovereignty.
One of the events that have affected Parliament sovereignty in UK is the devolution of
Scottish Parliament. Devolution means that the central authority transfers certain powers to
the regional authority. The Scotland Act 1998 created a Scottish Parliament and provided it
with powers to make laws regarding a range of issues. These powers were later extended by
Scotland Act 2012. In other words, the UK parliament devolved its authority by passing these
Acts. It transferred the powers that it held to the newly created Scotland Parliament but
withheld its authority to create laws regarding matters that that have an impact on the whole
of UK or internationally. The issues on which the Scotland Parliament can now make laws
are called devolved matters while the issues regarding which the UK Parliament has withheld
its authority are called reserved matters. Devolved matters include issues like agriculture,
forestry and fisheries, education and training environment, health and social services,
housing, law and order (including the licensing of air weapons). Reserved matters include
issues like the constitution; immigration; defence; foreign policy; employment; broadcasting;
trade and industry; nuclear energy, oil, coal, gas and electricity.1
1 The Scotland Act 1998 lists matters that are reserved to the UK Parliament.

In 2009, a decision was made to establish a UK Supreme Court. This decision is of immense
importance as it means that the House of Lords is no longer UK's final court of appeal. The
naturally brings up the question whether the final decision of the Supreme Court can overrule
the UK Parliament. The Supreme Courts official website answers this question as follows:
No it cannot. Unlike some supreme courts in other parts of the world, the UK
Supreme Court does not have the power to 'strike down' legislation passed by the UK
parliament. It is not the court's role to formulate public policy, but to interpret law and
develop it where necessary, through well-established processes and methods of
reasoning.2
Therefore, the Government has reiterated that the Parliament is still sovereign and there are
no courts that have the power of striking down a legislation that is passed by the Parliament.
At this juncture, it is important to mention another significant event that has a direct impact
on Parliament sovereignty and also works in tandem with the Supreme Court to undermine
the sovereignty i.e. the Human Rights Act. The courts are not responsible for creating laws
but it is their job to interpret them. And the Human Rights Act provides the courts with the
power to read legislation in such a manner that gives effect to European Convention on
Human Rights. This can also lead to instances where the courts have to rewrite provisions.
This was seen in a recent case3 where the Supreme Court ruled that a certain Scottish law is
incompatible with human rights law. This law did not give unmarried fathers the right to take
part in a hearing relating to a child with whom they have established family ties. The court
held that the statutory provision4 is to be read in such a way that it includes anyone who has
established family life with the child and must give them a right to take part in the hearings
2 http://supremecourt.uk/

3 [2010] UKSC 56

related to the child. The aforementioned answer by the Supreme Court regarding Parliament
sovereignty is later qualified by the following:
However, the supreme court must give effect to directly applicable European Union
law, and interpret domestic law so far as possible consistently with European Union
law. It must also give effect to the rights contained in the European Convention on
Human Rights.5
This qualification provides an exception to the general rule that the Supreme Court cannot
change or end any law that is made by the Parliament. This means that where the Supreme
Court is faced with European law, it can overrule a law made by the Parliament. The
Government has to abide by the final decisions of the European Court of Human Rights.
The High Contracting Parties undertake to abide by the final judgment of the Court
in any case to which they are parties.6
Another recent event saw many prisoners losing their right to vote.7 It was also due to a
judgement made by the European court of human rights. Following this decision, the
prisoners serving sentences of less than four years were to be given a right to vote. The
prisoners serving sentences of more than four years lost their voting privileges. The UK
4 Children (Scotland) Act 1995 S 93

5 http://supremecourt.uk/

6 European Convention on Human Rights, Article 46

7 Wintour, P 2011, Far fewer prisoners will now get the right to vote, The Guardian, Retrieved 28/04/2014
from http://www.theguardian.com/society/2011/jan/20/prisoners-right-to-vote-backbench-rebellion?
INTCMP=SRCH

Government had to abide by this decision despite the fact that it was likely to increase the
risk of successful compensation claims against the government in courts. There are also
instances where it seems as the politicians are becoming insecure due to the increasing power
of the courts. In 2011, a former leader of the Conservative Party claimed that more and more
decisions are being made by unaccountable judges. Judges are unaccountable and unelected
and ought to be very reluctant indeed to set aside decisions of this kind.8 Indirectly, he asked
for limiting the scope of judicial interference in the decisions made by politicians. Also, the
Government had recently made a controversial decision to strike down Labours multibillionpound Building Schools for the Future secondary school rebuilding scheme.
In 2010, the Parliament voted to raise the cap on fees charged by English universities hence
permitting them to charge their students higher from 2012. A legal opinion was later
published that argued that charging students up to 9,000 is against the human rights law. It
was because charging higher fee was an act of discrimination against students from poorer
backgrounds.9 The Government had made this decision because it was planning to made cuts
to the teaching grant for universities. Therefore, there were very strong legal opinions against
the Government as the burden of proof fell on the Government to justify its retrogressive
steps. This did not transpire into anything definitive as of yet but it did pose a challenge to the
Parliament sovereignty under the patronage of human rights.

8 Retrieved from http://ukscblog.com/quis-custodiet-ipsos-custodes

9 Vasagar, J 2010, Tuition fees rise 'contravenes human rights law', The Guardian. Retrieved 29/04/2014 from
http://www.theguardian.com/education/2010/dec/16/tuition-fees-rise-contravenes-human-rights-law

Another interesting case10 came to light in 2011 in which the defendants, hotel owners,
refused accommodation to a homosexual couple in a in a civil partnership. They argued that
they only let double rooms to married couples. The claimants submitted that they were
directly discriminated against by the defendants on the grounds of their sexual orientation.
They brought their claim under the Equality Act (Sexual Orientation) Regulations 2007. The
court identified that Articles 8, 9 and 14 of the European Commission on Human Rights were
all engaged in this case. The defendants had a right to deny accommodation upon their
religious beliefs but the claimants also had a right not to be discriminated against on the basis
of their sexual orientation. It is also important to notice that the right regarding religious
beliefs is not absolute and is able to be limited. The court was hung on whether there was a
direct discrimination or an indirect one. It did not make any new declaration but awarded the
claimants the damages equal to the extra expense that they had to incur to procure another
accommodation. This decision was made by a lower court and it seemed confused whether it
should overrule the Parliament. The Supreme Court also seems to be in a similar confusion. It
can be said that the aforementioned complain made by a former leader was not justified. He
projected the idea that the courts (judges) have hijacked the legal system to some degree. It is
clear that it is actually not the case.
Currently, UK is devoid of a written constitution which is why it is open to many legal
problems and confusions regarding Parliament sovereignty. Dawn Oliver posed a very
interesting question in this regard.11 She creates an imaginary situation in which the

10 [2011] EW Misc 2 (CC)

11 Oliver, D 2012, Parliamentary Sovereignty: A Pragmatic or Principled Doctrine? UK Constitutional Law


Association. Retrieved 29/04/2014 from http://ukconstitutionallaw.org/2012/05/03/dawn-oliver-parliamentarysovereignty-a-pragmatic-or-principled-doctrine

Parliament passes a provision that authorizes the indefinite detention without trial of
suspected terrorists. The measure is taken during a time when terrorism poses a great threat
and there is a panic in the public. The public opinion, media and the Parliament are all in
favour of this law. Under this law, a suspect is detained but that suspect applies to the court
for release on the grounds that the provision is against the European Convention on Human
Rights. The court finds out that the law is in fact defective in this matter and the Parliament is
bound to abide by human rights law. Therefore, it orders the minister to rescind his order of
the suspects detention and orders the suspects release. Now if the minister refuses to obey
the courts order, he would be committed for contempt of court. The solution to this problem
seems simple but it does not pay heed to the relationships between politicians and the courts.
Everything would be done according to law but it is likely that the politicians would feel
pitted against the courts to some degree. This is due to the lack of a written constitution.
What a constitution does is that it guarantees an automated mutual respect from both the
Parliament and the courts. It may be argued that the Parliaments and the courts have a very
long history of a mutual respect despite having no constitution. But the problem is that there
are chances of discontinuation of this mutual respect. Lord Carswell12 says,
As a judge I am very conscious of the proper reluctance of the courts to intervene in
issues of the validity of Acts of Parliament. I should be most unwilling to decide this
or any other case in a way which would endanger that tradition of mutual respect.
This means that courts actually try their best not to interfere with legislature. There are many
judges like Lord Carswell that value Parliament sovereignty above all things and are prepared
to go at great lengths to protect it.

12 Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56

In M v Home Office,13 it was held that the court had the power to declare a minister in
contempt if that minister disobeys an order made by the court. If that ever happens in reality,
chances are that this declaration would not do much good to the courts. It is very unlikely that
the House of Commons and the press would side with the court and prompt the Government
to provide a positive response to the declaration. What may happen is that the declaration
would be ignored hence projecting the image that the executives can get away with
disobeying of courts. Another recourse that the courts have is that they could commit the
Home Secretary to prison for contempt. But this decision can be overruled by the Minister of
Justice who holds the power to order the release of the Home Secretary on the grounds that
his imprisonment was unconstitutional, anti-democratic and unlawful. Also, the court would
be held in breach as they would have refused to give effect to an Act of Parliament. Moving
back to the suspect of terrorism, if the prison governor releases the Home Secretary, under the
order of the Minister of Justice, but continues to detain the suspect, he might himself be
committed for contempt. Therefore, this battle would continue in a circle with the courts
getting the least support.14
It can be said that Great Britain might be the most sceptical of political and economic
integration among the members of the European Union. There are also some valid reasons to
believe that it has a significant impact on UK Parliament sovereignty. In 1972, Britain signed
the Treaty of Accession which resulted in addition of 2,900 regulations and 410 directives to
English law. Also, a full forty-three volumes of EU legislation were integrated.15 References
are also made to the Factortame legal cases of 1990 and 1991 in which the courts favoured

13 [1993] UKHL 5

14 Ibid 11

the European Community law over the Merchant Shipping Act of 1988.16 These cases also
pose a threat to Parliament sovereignty. The case developed when the Thatcher government
passed the Merchant Shipping Act in 1988. Spanish fishing vessels used to register as British
ships to increase their profits (also known as quota-hopping). The legislation sought to
eliminate this practice. The European Court of Justice ruled that this legislation discriminated
against certain fishing vessels within the European Union hence it did not comply with the
EC law.17 This is regarded by some as one of the most significant sacrifices of Parliament
sovereignty.18 However, there is another very important side to this matter. Parliament put a
limitation on its own sovereignty when it signed the aforementioned treaty. This was
completely voluntary. It has been mentioned above that the legislations passed by Parliaments
can be ended or amended by the future Parliaments. Therefore, it means that the acceptance
of limitation is actually retractable. Parliament still holds the power to regain all the
sovereignty that it had forgone. In the Factortame case, Lord Bridge remarked,
Under the terms of the 1972 Act it has always been clear that it was the duty of a UK
court, when delivering final judgement, to override any rule of national law found to
15 Watts, Duncan, and Colin Pilkington. "Sovereignty and Constitutional Change." Britain in
the European Union Today. Manchester: Manchester UP, 2005. 106. Print.

16 Jowell, Jeffrey L., and Dawn Oliver. "The Judicial Response Prior to Factortame." The
Changing Constitution. Oxford: Oxford UP, 2007. 92-100. Print.

17 Craig, Paul. "Britain in the European Union." The Changing Constitution. Ed. Jeffrey L.
Jowell and Dawn Oliver. Oxford: Oxford UP, 2007. 95. Print.

18 Watts, Duncan, and Colin Pilkington. "Sovereignty and Constitutional Change." Britain in
the European Union Today. Manchester: Manchester UP, 2005. 106. Print.

be in conflict with any directly enforceable rule of Community lawThus, whatever


limitation of its sovereignty Parliament acceptedwas entirely voluntary.19
It is also important to notice that where Parliament voluntarily gives up its sovereignty in
certain matters, the cost of retraction may be too high. This might prevent Parliament from
retraction.
Another important aspect is that of legislative scrutiny within Parliament. There are numerous
institutions within the House of Commons and the House of Lords that scrutinize EU
legislation. In 1988, the Scrutiny Reserve Resolution was introduced and applied to both
Houses of Parliament when the qualified majority voting increased. Also, the use of veto
within the EU Council of Ministers had decreased.20 Five specific select committees were
developed in the House of Commons in 1991. These committees review and scrutinize each
and every EU document. These committees largely consist of EU-interested members of the
House and if they feel necessary, they can introduce the bill to the House floor for debate.21
The scrutiny is even more in depth in the House of Lords where strong review processes
ensure that the delegated powers granted to the European Union are kept in check.
The UK parliament is still quite sovereign but it is not inaccurate to say that it is no more
completely sovereign. It has devolved some its sovereignty and has voluntarily given up
19 Craig, Paul. "Britain in the European Union." The Changing Constitution. Ed. Jeffrey L.
Jowell and Dawn Oliver. Oxford: Oxford UP, 2007. 94. Print.

20 Cygan, Adam. "Scrutiny of EU Legislation in the UK Parlaiment." National Parliaments


within the Enlarged European WUnion. Ed. John O'Brennan and Tapio Raunio. New York,
NY: Routledge, 2007. 165. Print.

21 Ibid 165

some of it to create allowance for the EU to function properly. The fact that all the
sovereignty is retractable suggests that Parliament is still completely sovereign. The powers
that it has given up are surrendered for a greater good. It reviews and scrutinizes all the
details of the EU legislations. This means that if there is any indication that the greater good
cannot be achieved, Parliament may reclaim the authority that it has given up. In absolute
terms, there is only one power that is superior to Parliament sovereignty and that is the power
of future Parliaments. Only they hold the power to change or end any legislation that has
been passed by previous Parliaments. Still, it cannot be said that the recent political events
are responsible for the loss of Parliament sovereignty because whatever impact these events
had, it was due to the fact that the Parliament gave up some of its powers voluntarily.

References
Children (Scotland) Act 1995 (UK) S 93
Craig, Paul. "Britain in the European Union." The Changing Constitution. Ed. Jeffrey L.
Jowell and Dawn Oliver. Oxford: Oxford UP, 2007. 94-95. Print.

Cygan, Adam. "Scrutiny of EU Legislation in the UK Parlaiment." National Parliaments


within the Enlarged European WUnion. Ed. John O'Brennan and Tapio Raunio. New York,
NY: Routledge, 2007. 165. Print.
European Convention on Human Rights Article 46
Hall & Anor v Bull & Anor [2011] EW Misc 2 (CC)
Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56
Jowell, Jeffrey L., and Dawn Oliver. "The Judicial Response Prior to Factortame." The
Changing Constitution. Oxford: Oxford UP, 2007. 92-100. Print.
Kellerman, MG 2011, UK Membership in the European Union: Undermining Parliamentary
Sovereignty? Student Pulse, Vol. 3 No. 09.
M v Home Office [1993] UKHL 5
Oliver, D 2012, Parliamentary Sovereignty: A Pragmatic or Principled Doctrine? UK
Constitutional Law Association. Retrieved 29/04/2014 from
http://ukconstitutionallaw.org/2012/05/03/dawn-oliver-parliamentary-sovereignty-apragmatic-or-principled-doctrine
Principal Reporter v K and others (Scotland) [2010] UKSC 56
Quis custodiet ipsos custodes? UK Supreme Court Blog. Retrieved 28/04/2014 from
http://ukscblog.com/quis-custodiet-ipsos-custodes
Vasagar, J 2010, Tuition fees rise 'contravenes human rights law', The Guardian. Retrieved
29/04/2014 from http://www.theguardian.com/education/2010/dec/16/tuition-fees-risecontravenes-human-rights-law

Watts, Duncan, and Colin Pilkington. "Sovereignty and Constitutional Change." Britain in
the European Union Today. Manchester: Manchester UP, 2005. 106. Print.
Wagner, A 2011, Supreme Confusion UK Human Rights Blog, Retrieved 28/04/2014 from
http://ukhumanrightsblog.com/2011/01/26/supreme-confusion
Wintour, P 2011, Far fewer prisoners will now get the right to vote, The Guardian,
Retrieved 28/04/2014 from http://www.theguardian.com/society/2011/jan/20/prisoners-rightto-vote-backbench-rebellion?INTCMP=SRCH