Is the Parliament still sovereign in the UK?

The Parliament in the United Kingdom has developed over more than nine hundred years during which the House of Commons and the House of Lords surfaced and evolved. King Henry V in the 15^th century placed the House of Commons and Lords on the same level and the former represented counties, towns and cities whilst the latter consisted of the nobility. In 1689 with the establishment of the Bill of Rights it was ensured that Parliament had authority over the monarch and would be in charge of legislating and abolishing laws. The Act of Union of the British Parliament with Scotland and Ireland in 1707 and 1800 respectively which dissolved their Parliaments and made their MPs and Lords became part of Westminster followed. Nearly a century later, the Parliament Acts of 1911 and 1949 put a stop to the amending powers of the Lords regarding monetary Bills and also reduced the time limit within which they could delay a Bill. Today Parliament comprises of the House of Commons which consists of elected Members of Parliament, the House of Lords with Law Peers and Lords and the Crown.

WHY IS PARLIAMENT SOVEREIGN?

According to AV Dicey the word sovereignty is used to describe the idea of ‘the power of law making unrestricted by any legal limit’.

Parliamentary sovereignty is part of the uncodified constitution of the United Kingdom. It dictates that Parliament can make or unmake any laws as it is the ultimate legal authority in the UK. Dicey in ‘Law of the Constitution (1885)’ commented ‘in theory Parliament has total power. It is sovereign’. He states a number of reasons as to how this is possible. Firstly Dicey points out that Parliament is capable of passing laws on any subject without legal restriction therefore it is sovereign. This principle is derived from the election of the Members of Parliament (MPs), by the electorate which gives them authority to represent and pass legislation on their behalf.

Supremacy of Parliament can be traced back to the Bill of Rights 1689 where it was described that the monarch alone could not pass or repeal laws without Parliament’s consent. Parliament is also free to modify its own makeup and authority. This is demonstrated in the Parliament Acts of 1911 and 1949 which eliminated the veto powers of the House of Lords and the Life Peerages Act 1958 which apart from giving the Prime Minister flexibility to modify the composition of the House of Lords introduced female peers into the hereditary and male dominated second chamber.

There have often been arguments that it would be unconstitutional for Parliament to implement laws that would be thought of as morally and politically gross or incorrect by the general populace but this will not mean that Parliament do not have the authority to make it. Example, Parliament if it so wished to, could enact a law that anyone who drove a yellow car on Sunday is to be arrested. However remote the chances are of such a law being passed, it can still be legally passed by Parliament. Therefore in practice although Parliament can pass laws without restriction there is a difference between what laws realistically Parliament will implement. It will also depend on the political stance of the party forming government or which ideas are popular to the electorate that vote for them.

Dicey’s second argument is that no Parliament can bind the future Parliament Hence, laws made by the current Parliament can be repealed or amended by consecutive Parliaments. For instance out of the 37 Articles of the Magna Carta, only three are still prevailing.

Dicey also believed that Parliament is sovereign because laws that it passes cannot be disputed by the courts. Although many democracies in the world today like United States of America have launched a rights of access to the courts in their written constitutions which gives the courts legal authority in making law and unmaking bad law as unconstitutional, this is not the same for United Kingdom as we do not have a codified constitution. Hence, the courts cannot stand in the way of law that Parliament makes.

WHY IS PARLIAMENT NOT SOVEREIGN?

The United Kingdom (UK) joined the European Union in 1973 by signing the European Communities Act 1972. The European Community law has to be given primacy over domestic UK law under requirements of the European Community Law.

The institutions within the European Community are allowed to make laws which the UK has to apply in its courts as long as it affects the UK regardless of whether Parliament wishes it or not. However, as previous Parliaments decisions do not bind future Parliaments the UK can withdraw from the European Community if they so wish it and the political parties have often use the European Community as a tool to win elections promising the electorate referendums. But this would fare drastically mostly for the economy, which is the back bone of every country.

The Bill of Rights in 1689 did not as much lay out rights of the people in the UK but restricted the rights of the monarch. In the UK we have ‘negative rights’ which means than instead of having a ‘Bill of Rights’ that tell us what we can do we have statutes and common law that proclaim what we cannot do. The Human Rights Act 1998 incorporated into British law is a first of its kind and is derived from the European Convention of Human Rights that had to be adopted by all the member states of the European Community. Thus it is harder for Parliament to exercise its sovereignty in such situations where the political and civil rights maybe infringed by legislation being proposed. However the Human Rights Act 1998 is not entrenched so it can be repealed through Parliamentary sovereignty although again with a caveat of consequences.

Devolution and establishment of the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly does perhaps affect the sovereignty of the Parliament at Westminster. It would be difficult for Parliament to get rid of laws that these devolved powers have made within their legal jurisdictions short of dissolving the devolved powers altogether. But many see devolution as a good system of government because the participation level of the electorate within these devolved governments in their communities could be higher as they are much more local than Westminster.

Another general threat to Parliamentary sovereignty is the purposive approach that judges have started to adopt in the interpretation of statues. The courts had to implement this approach in interpreting European Community Law under the European Communities Act of 1972. Hence, judges focus not mainly on the strict view of law but interpret it keeping in mind what legislators would have intended.

Taking into account the loss of Parliamentary sovereignty through the membership of the European Community, the incorporation of the Humans Act into the British Legal system, devolution and the purposive approach, Parliamentary sovereignty is indeed declining but perhaps the idea that Parliament was ever completely Sovereign is questionable as the Members of Parliament (MP) have been accountable to the electorate in every general election. But because of majority that the government has in the House of Commons it becomes easier for them to pass a Bill once the party whip indicates to the rest of the MPs within the party which way the Party leadership would like them to vote such as in the Prevention of Terrorism Act 2005.

In conclusion, although lack of Parliamentary sovereignty can appear to be both progressive and illiberal, the former perhaps has a stronger case as we exist in a globalised world where combining forces for the progression of trade and economy is more essential than debating fading domestic sovereignty.

Vishakha Dewan

Daughter of Mr. Lalit Dewan (serving Gurkha)