This paper considers whether the concept of ‘parliamentary sovereignty’ is a reality in the modern United Kingdom.
To frame the boundaries of this essay, ‘parliamentary’ is taken as referring to action taken by the Westminster-based tripartite authorities of the House of Commons, the House of Lords and the British monarchy.
Since an incontrovertible definition of ‘sovereignty’ is more difficult, I turn to Dicey (1915) who uses two criteria. Firstly, Parliament has ‘the right to make or unmake any law’, and secondly ‘no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament’.
Taking these together, I define ‘parliamentary sovereignty’ as a concept which considers that the Westminster Parliament has complete control over the legal affairs of the UK and that no individual or body can override any Act of Parliament. This also incorporates the Diceyan concept that no Parliament can bind its successor.
In recent decades, the reality of parliamentary sovereignty has been increasingly questioned due to a number of constitutional changes. In particular, this paper considers the impact on parliamentary sovereignty of: (i) membership of the European Union; (ii) the passing of the Human Rights Act; (iii) the changing role of the judiciary; and (iv) devolution.
Table of Contents
1. Membership of the European Union
2. Human Rights Act 1998
3. Changing role of the judiciary
4. Devolution
5. Conclusion
Objectives and Key Themes
This paper examines whether the traditional concept of parliamentary sovereignty remains a functional reality in the contemporary United Kingdom, given the evolution of constitutional arrangements and the increasing influence of external and internal legal frameworks.
- The impact of European Union membership on UK legislative supremacy.
- The influence of the Human Rights Act 1998 on the role of the judiciary.
- The changing power dynamics between the executive, the legislature, and the courts.
- The implications of devolution for the central authority of the Westminster Parliament.
- The distinction between de jure sovereignty and de facto political constraints.
Excerpt from the Book
Human Rights Act 1998
In 1998, the Labour Government passed the Human Rights Act (HRA) which enshrined the European Convention on Human Rights (the Convention), as implemented by the Strasbourg-based European Court of Human Rights (ECHR), into UK law.
Although HRA requires that any UK legislation be consistent with the Convention, the act did include a provision for (at least in a formal sense) the maintenance of parliamentary sovereignty. Indeed, the UK judiciary is not permitted to strike down legislation that it rules inconsistent with the Convention but is only able to issue a ‘declaration of incompatibility’ (this is indeed seen as a last resort since the judiciary will attempt, where possible, to interpret primary legislation as being compatible).
But what happens when a declaration of incompatibility is issued? Between the implementation of the HRA in October 2000 and mid-2009, 26 declarations of incompatibility were issued. Of these, 17 resulted in changes or amendments to British law, 8 were overturned on appeal (i.e. it was judged that British law and the Convention were after all compatible) and a decision was outstanding in the remaining case.
What is most notable here is that the UK Government has not yet ignored a declaration and insisted that Westminster legislation should overrule the convention. Indeed, when a declaration has not been overturned, UK law has been amended in some way to accommodate the Convention. In effect then, the UK Government has yet to really challenge ECHR’s superiority over the will of Westminster even in cases when the Government of the day has felt very strongly about the contested issue.
Summary of Chapters
Membership of the European Union: This chapter analyzes how European law, particularly under the European Communities Act 1972, has established a superior constitutional status compared to domestic legislation in areas of economic competence.
Human Rights Act 1998: This section examines the impact of the HRA, noting that while the government has not formally ignored declarations of incompatibility, it has consistently adapted legislation to comply with the European Convention on Human Rights.
Changing role of the judiciary: This chapter explores the increased power of the courts through judicial review and the formal separation of the judiciary from the executive and legislature following the Constitutional Reform Act 2005.
Devolution: This section discusses the delegation of powers to Scotland, Wales, and Northern Ireland, highlighting the tension between legal Westminster supremacy and the political reality of regional autonomy.
Conclusion: The final chapter summarizes that while parliamentary sovereignty persists in a de jure sense, it has been substantially weakened in practice by supranational and regional constraints.
Keywords
Parliamentary sovereignty, Westminster, European Union, Human Rights Act, ECHR, Judicial review, Devolution, Factortame case, Constitution, Legislation, Separation of powers, UK law, Constitutional Reform Act, Sovereignty, Legal authority.
Frequently Asked Questions
What is the core subject of this paper?
The paper investigates whether the concept of parliamentary sovereignty still exists as a functional reality in the modern United Kingdom or if it has become an outdated notion.
What are the primary themes discussed?
The central themes include the influence of EU membership, the legal impact of the Human Rights Act 1998, the evolving role of the judiciary, and the constitutional effects of devolution.
What is the main research question?
The primary inquiry is whether the traditional Diceyan concept of parliamentary sovereignty should be abandoned given the significant constitutional changes in recent decades.
Which methodology is employed?
The paper utilizes a legal and constitutional analysis, referencing statutes like the 1972 European Communities Act and the 1998 Human Rights Act, as well as landmark case law such as the Factortame decision.
What is covered in the main body of the work?
The main body evaluates four specific areas: membership of the European Union, the implementation of the Human Rights Act, the increasing independence and role of the judiciary, and the implications of devolution.
Which keywords best characterize this work?
Key terms include parliamentary sovereignty, judicial review, constitutional reform, legislative supremacy, and European legal integration.
How does the author define parliamentary sovereignty?
The author defines it as the principle that the Westminster Parliament maintains total control over UK legal affairs, with no individual or body empowered to override an Act of Parliament.
What is the significance of the Factortame case?
The Factortame case serves as the primary example of EU law's supremacy, as it demonstrated that UK statutes must be set aside if they conflict with directly enforceable Community law.
Why does the author argue that judicial independence has not threatened sovereignty?
The author concludes that because the UK Supreme Court cannot strike down primary legislation, the judiciary does not pose a direct threat to parliamentary sovereignty in the same way it might in other jurisdictions like the United States.
Does the author believe sovereignty can be reasserted?
The author notes that while Westminster could technically repeal acts like the HRA, the political, social, and economic costs make a return to traditional Diceyan sovereignty highly unlikely in practice.
- Arbeit zitieren
- Roy Whymark (Autor:in), 2011, Is the sovereignty of the UK Parliament a meaningless concept and should it be abandoned?, München, GRIN Verlag, https://www.hausarbeiten.de/document/207479
