You are on page 1of 3

Parliamentary Supremacy Q11 The statement given seems to suggest whether it can still be said that the concept

of parliamentary supremacy is the cornerstone of the British Constitution. Is it still an indispensable part of the constitution ? The UK is such that it does not have a codified constitution. In other words, the UK constitution is not compiled into a single written document. Thus, the absolute power to make law lies in the hands of the Parliament. In AV Diceys view, parliamentary supremacy consists of three principal aspects:- parliament can make or unmake any law; parliament cannot bind its successors nor can it be bound by its predecessors; and no person or body outside parliament can question its validity. In theory, Parliament still remains as the foundation of the British Constitution. To demonstrate the supremacy of parliament, it can be seen that international laws cannot take legal effect within the law of UK unless it is brought into force by an Act of Parliament. Until 1973, the only law made by UK acting in agreement with other states was in the form of international treaties. UK had become a member of the European Communities in 1973. As such, the laws of the Community together with the judicial decisions of the European Court are binding on all member states. The acceptance of the Community Law was incorporated under the European Communities Act 1972, which is an Act of the UK Parliament. Accordingly, Community Law drives its forces and authority under this Act. By the fact that Parliament had enacted such an Act of Parliament directing the UK courts to comply with the Community Law, it clearly indicates that Parliament has been supreme. However, membership of the Community raises some unique questions of the supremacy of Parliament. The principal issue for consideration is the attitude of the UK judges towards Community Law. From the perspective of the European Courts, Community Law prevails over domestic law and that UK legislatures have no power to enact binding legislation contrary to Community Law ( s.2 European Communities Act 1972 ). As Community Law prevails over domestic law and that any Act of Parliament in UK shall be construed in conformance to Community Law, it can be argued that Diceys theory had been impaired. Despite all appearances on the contrary however, and the basis that UK voluntarily acceded to the European Community; the force of the Community Laws are derived from an act of the UK Parliament, which is the ECA 1972. Thus, parliamentary supremacy is prevailed. Another challenge to the supremacy of Parliament is the Human Rights Act 1998. The HRA is an Act of the UK Parliament which aim is to give further effect in UK law to the rights contained in the European Convention of Human Rights (ECHR). The Act makes available in the UK courts a remedy for the breach of a Convention right, without the need to go to the European Court of Human Rights (ECtHR) in Strasbourg.
http://www.epyl.com/ps/q11/llb/uol/external/inter/jan/atc

In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the ECHR, unless the wording of a UK Act of Parliament means they have no other choice. It also requires the UK judges to take account of the decisions by the ECtHR, and to interpret legislation, as far as possible, in a way which is compatible with the ECHR ( s.3 (1) Human Rights Act 1998). However, the HRA 1998 does not give the courts the power to set aside Acts of Parliament which are inconsistent with Convention rights, but merely to allow certain courts to make a declaration of incompatibility (s.4 HRA 1998). In R v A (2001), the House of Lords held that the statutory provision under s.41 of the Youth Justice and Criminal Evidence Act 1999 were in conflict with the Convention rights under Article 6 (Rights to a fair trial). s.3 of the HRA 1998 places a duty on the courts to strive to find a possible interpretation compatible with Convention rights. Also, when the courts are unable to interpret statutes in a manner which makes them compatible with Convention rights, a declaration of incompatibility may be issued. This will notify the UK government and Parliament that the statute requires amendment ( R(Anderson) v Sect. of State for Home Dept. [2002] ). The Human Rights Act 1998 can be argued to have impaired the doctrine of parliamentary supremacy because judges now have to interpret legislation, as far as possible, in a way which is compatible with the Convention rights. This seems to show that the Convention rights prevail over domestic law. Also, the courts will have to make a declaration of incompatibility if a domestic law was in conflict with the Convention rights, and also to follow the provisions of the Convention. However, it must be remembered that the Convention rights were incorporated under an Act of the UK Parliament, and therefore the UK Parliament is still supreme. Also, when there is a conflict between domestic law and the Convention rights, the courts are only allowed to declare the domestic law incompatible, not invalid. Thus, parliamentary supremacy is still maintained. There is also one particularly strong legal argument that the UK Parliament is not born free. The 1707 Union between England and Scotland is the key point of scrutiny. This legislation declared that England and Scotland shallforever after be united into one kingdom the name Great Britain (Article I ), and that the United Kingdom of Great Britain be represented by one and the same Parliament of Great Britain (Article IV). It follows that the Union was effected by treaty between two sovereign states and enacted by the respective parliaments of both Scotland and Wales, and thus this Union precedes and creates the UK Parliament. Therefore, the Union is the ultimate document authoritatively defining the powers of the UK Parliament. By this argument, the supremacy principle before 1707 did not necessarily carry over into the particular powers of the new Parliament created by the Act of Union.
http://www.epyl.com/ps/q11/llb/uol/external/inter/jan/atc

There are however counter arguments against this position. One of them was that the Parliament was not being reborn, but simply enlarged. It absorbed the Scottish Parliament into a new one, rather than creating a new one. In McCormick v Lord Advocate, the right of the Queen to call herself Elizabeth II while in Scotland was challenged, as there had been no Elizabeth I of Scotland, and by doing so would contravene the Act of Union. It was ruled that the claimant had no legal capacity to sue the Crown, and that the Act of Union had no provision for the numbering of monarchs; this was a Royal Prerogative power. Besides that, Section 4 of the Statute of Westminster 1931 provides that no Act of the UK parliament passed after the commencement of this Act shall extend or be deemed to extend, to a country with the status of a Dominion as part of its law, unless it is requested and consented by the Dominion itself. Has Parliament lost its supremacy in the sense that it can no longer make law for other countries? From the case of Manuel v A-G and Madzimbamuto v Lardner-Burke however, it can be seen that the Section 4 did not require actual consent from the Dominions; and the UK Courts cannot hold such a statute void, although it would be impossible to enforce them no matter how strong the diplomatic protests. At the end of the day, Section 4 is not a legal limitation, but a practical limitation to parliamentary supremacy; because it is a political norm that independence once granted will not be taken away. There is also challenge to the supremacy of Parliament in terms of devolution. Devolution is the granting of powers from the central government to a state or regional government. In this case, the UK government had granted powers to the Scottish and Irish Parliament to make law. The powers granted are very limited however; and it must be understood that the Scottish and Irish Parliament are created by the Acts of the UK Parliament (Scotland Act & Northern Ireland Act 1998). The UK Parliament can repeal these Acts anytime it sees fit, just like any ordinary Act of Parliament. This would be unlikely to happen however, because the political norm is that rights once given will not be revoked. The final challenge to this doctrine is the manner and form argument. This is where the manner and form in which an Act of Parliament is passed must be examined. What if a statute is passed inappropriately or by fraud? Would the Act be disregarded? If so, it would seem that Parliaments supremacy had been affected; because Parliament is supposedly able to make or unmake any law. In the case of Pickin v British Railway Board however, the court held that it is not right for them to question the validity of an Act of Parliament. The Act would still be valid and followed. Thus, parliamentary supremacy is maintained. In conclusion, the challenges are not real and strong challenges to the supremacy of parliament. It is still accurate to regard parliamentary supremacy as the foundation of the British constitution.
http://www.epyl.com/ps/q11/llb/uol/external/inter/jan/atc