UK & Parliamentary

Sovereignty

Parliamentary sovereignty is a concept of great importance in parliamentary democracies because it gives laws formulated by the people’s representatives great weight. It makes the laws they make the highest and ultimate source of power which citizens look up to for protection of their common interests such as duties, rights, moralities, and so on, as well as the accountability of the powerful. In the United Kingdom (UK), its classical explanation is owed to A.V. Dicey – a noted British jurist and constitutional theorist of the twentieth century – who defined it as a three-tier notion. Paraphrasing him makes sovereignty eternally legally unlimited legislative power of the Westminster parliament to which judiciary owes allegiance.

The concept of parliamentary sovereignty enjoys unparalleled centrality in the UK’s constitutional setup for two prime reasons:

First, it is the highest source of law of the system that supersedes other sources of law. Thus, if there is compensation available to a citizen under prerogative and statute, the court would give preference to the latter. This logic was used by the court when it awarded higher statutory compensation to De Keyser’s Royal Hotel against the wishes of the government to pay lesser amount under the prerogative. As a result it is the ultimate source of power the courts resist to challenge. Therefore, if a citizen challenges a statute for procedural impropriety, the courts will refuse to look into the matter because parliament is supreme in the making of laws. On this logic, the court refused to entertain Jackson’s stance that the Hunting Act, 2004, should be set aside because it was made without House of Lords. This is because the power to redefining or restructuring itself rested with the parliament, and if, for the purpose of Hunting Act, it had redefined itself as House of Commons and the Monarch, the courts were bound to respect it.

Second, it is the reminiscent of seventeenth-century power shift from absolute monarchy to the parliamentarians. It, initially, paved way for curtailing the abuse of power by the monarchs by committing them to arrangement which gave parliament upper hand in matters such as tax raising, maintenance of army, budgeting, self-organization and free speech. It continues to give people hope that no office, organisation or person is outside its reach because it can decide their fate through its laws. Reform of the office of the Lord Chancellor is a classical example of it. Under the Constitutional Reform and Governance Act, 2005, his/her powers have been reduced down to ministerial post from being the head of the judiciary and speaker of the House of Lords, (s)he enjoyed previously. So much so that the incumbent Boris Johnson government is thinking about reforming the composition of the Supreme Court by expanding the number of its justices from the current 12 to 51. This would include the judges from the Court of Appeal. This is quite unprecedented but it tells about the might of the elected lot.

However, some developments such as ratification of European Convention on Human Rights (ECHR) in 1952, UK’s membership of European Union (EU) in 1972, devolution to Scotland, Northern Ireland and Wales in 1998, and the process of Brexit in 2020 have raised concerns about its supreme status. There have been voices questioning whether it can make laws contrary to EU laws, ECHR obligations, devolved legislatures’ consent and retained EU laws. These are thorny questions, and addressing them requires perusal of incorporating or domesticating legislation such as European Communities Act, 1972 (ECA), Human Rights Act, 1998 (HRA), Sewel Convention and European Union Withdrawal Act, 2018 (EUWA).

Starting off with EU, the United Kingdom joined this bloc in 1972 alongside Denmark and Republic of Ireland. Given that the UK is a dualist country, this treaty had to be incorporated so that the British citizens could take the benefits of community rights in their domestic courts. To this end, the government passed ECA 1972 whereby the government set out a framework for the relationship of EU law and domestic law. Its section 2(1) affirmed the direct application of EU Treaties and Regulations. Its section 2(4) said if the EU law and domestic law conflicted, the domestic courts were to apply former and if need be dis-apply domestic law in favour of EU law. This has made some say that the Westminster parliament has surrendered its legislative authority to EU, and accepted its supranational status. The fact of the matter is that EU has not frequently made overriding laws and domestic courts have not frequently dis-applied conflicting domestic laws in favour of overriding EU laws. Therefore, the apparent surrender is an exception than the norm. Furthermore, as the other side argues, there is no loss of legislative power because parliament can always expressly repeal ECA. The question then becomes whether Diceyian phrase ‘parliament can make or unmake any law’ could be read as making of self-restraining laws to maintain international relations and repealing of these laws to end international relations. The Conservative government seems to have conceded to this through its repeal of ECA by the EUWA. The parliament had made self-constraining ECA to maintain EU obligations for the benefits of its citizens, it now looks forward to repealing it and ending its EU obligations through EUWA to respect its citizens’ wish to exit from the EU. Therefore, as long as the self-restraint and its restoration are directed to citizens’ benefits and are happening as a result of laws of people’s representative, the historical logic of creation of parliament is intact. Therefore, the parliament remains the hope of people in creating and terminating international commitments for their benefits.

As regards ECHR, this was ratified by the UK in 1952 and incorporated into domestic law through HRA, 1998, by the Labour government of Tony Blair. Its sections 3 & 4 obligate the UK courts to give domestic laws ‘as far as possible Convention-complaint interpretation’. Notably, it does not restrain parliament from making laws contrary to ECHR. In fact, where this is the case, the courts are empowered to issue a declaration of incompatibility (DOI). This does not invalidate the incompatible legislation, but sends a signal to parliament that it has violated its international obligation under the Convention and should take measures to fix it. There has been some parliamentary cooperation to this end. For example, after the Court had issued a DOI against Part IV of Anti-Terrorism Crime and Security Act, 2001, the parliament repealed it. But this did not deter it from passing the incompatible Terrorism Act, 2005. Because of this, citizens had started to fear parliament because of its power to refuse Convention- protection through making of incompatible domestic laws. To fill this trust void, the judiciary devised its own constructive remedy, known as the principle of legality. It reassured citizens that Convention-rights will only be overridden with crystal clear intent, that is, with act that expressly supersedes the former. And where the parliament used ambiguous language, they will use the rule of construction in favour of Convention (R v Secretary of State for the Home Department, ex parte Simms 1999). In this way, the courts made it clear that they will show allegiance to parliament for express incompatible law. But for ambiguous incompatible law, their allegiance will be to the Convention. Thus, it informed citizens that the membership of ECHR and passing of HRA has given birth to two rules of construction: one favouring parliament and the other favouring Convention. The former is a confirmation of parliament’s legislative power to make incompatible law and repeal it; the latter is a clarification and prediction of moment which will require the court to shift allegiance to ECHR for citizens’ benefits. In this way, the court made it clear that its general allegiance is to laws of parliament, but it will shift to ECHR when the laws of parliament are ambiguous.

In relation to devolution, certain legislative powers were given to Scotland, Northern Ireland and Wales to keep them united with England. And it was assured to them that the Westminster will not legislate over devolved matters without their consent. This came to be known as the Sewel Convention. This has made some say that in making laws over devolved matters, Westminster parliament is bound by the consent of devolved legislatures. For them, consent is a condition precedent to lawmaking. If there is consent, parliament has legislative power over devolved matters. If it is absent, it has no right to legislate for that has been lost to devolved legislatures. But consent as condition precedent raises questions of its own. Is consent a legal condition precedent to lawmaking or is it a political condition precedent to lawmaking? The judicial resolve is that consent is a political condition precedent to lawmaking. But what exactly is it that made judiciary call it the latter, and not former, is far from clear. Is it their belief that legal limitation of parliament is a self-defeating notion? Or is it their fear that accepting it as such will deter it from repealing it? Or is it the difficulty in which it will put the courts: could they decide that the practice of consent is so hardened that it has become a law for courts to adjudicate upon? It cannot be the first two because parliament has a practice of making and repealing self-constraining laws. Examples of this are ECA and EUWA. This means it can make self-restraining laws and be sovereign from the making angle and repeal them and be sovereign from the unmaking angle. It cannot be the last one too because courts have a practice of showing deference for matters of political nature such as consent.

Finally, there is the Brexit. This process of the withdrawal of the United Kingdom from the European Union started in 2016 when the government of David Cameron asked the British citizens in a referendum if they wanted to continue with the membership of EU. The result revealed their desire to come out of the constraints of it and this picked up as the Brexit. The follow-up of this was the resignation of Mr Cameron because he thought he had failed to live up to the wishes of his people by campaigning for staying in EU. His successors Theresa May and now Boris Johnson have been trying to complete this process. This has been difficult and has generated confusion of its own as people have started asking about the status of EU law that predated the time when Brexit will finally happen. This was resolved by the passing of EUWA 2018. Its sections 2, 3 and 4 confirmed that such laws will be retained as EU laws and thus be part of the domestic law on the day of exit. Importantly, in section 5, it made clear that UK parliament could legislate contrary to retained EU law, if it wished so. And if it did not, the EU’s retained law will be applied over conflicting domestic law. Moreover, it made clear that when EUWA is implemented, the ECA will be repealed. This shows that after the successful completion of Brexit, the British parliament will be free to make laws contrary to EU law to which judges will show allegiance. It also shows its power to reclaim its authority by repealing self-constraining law like ECA.

Discussed as such, in modern times, parliamentary sovereignty is the ability of parliament to make and repeal self-constraining laws to which judiciary shows allegiance. ECA and EUWA show that parliament can make and repeal self-constraining laws. It can even decide the level of fidelity from courts on these laws; for example, the fidelities under ECA and HRA are dissimilar. Under the former, dis-application of conflicting national law is required while compatible construction of the conflicting national law is required under the latter. Allegiance has been divided up owing to different construction of law. The dominant stance, however, has been to not invalidate self-constraining laws once they are made or repealed.

 

The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be contacted at: mawraraja@protonmail.com