Parliamentary Sovereignty Versus Doctrine of Precedent

“Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law.” – A. V. Dicey

Introduction:

The Parliament of UK is one of the most peculiar institutions in the UK. It can simply change anything by a simple majority. One of its main functions is to create and amend laws. This role of Parliament has mainly developed in the past two-three decades. However, despite the growing implementation of statutes created by Parliament, I personally think case law (aka. precedent) has retained its importance in the English Legal System. The doctrine of precedent is based on the principle of stare decisis, which means to stand by things decided.

It might be true that the sovereignty of Parliament is more complete in England than anywhere else. However, does it really mean that the rigidity of doctrine of precedent in this country is of no particular importance? Moreover, can we actually say that the doctrine of precedent is rigid? The main aim of my work is to show the importance of the doctrine of precedent and to prove that it is not rigid. Furthermore, I will also question the sovereignty of the Parliament.

Sovereignty of Parliament in England:

The modern British Parliament can trace its origins back to Anglo-Saxon government’s Witan. [1] Later, in 1215, King John signed the Magna Carta, which stated that he should follow the advice of council (which later included representatives of the public and developed into parliament). The English Parliament started to limit the power of other institutions (i.e. the crown) over the years to a certain extent. After the end of English Civil War in 1649, Charles II restored the monarchy and supremacy of parliament became an established principle leading to all the future sovereigns becoming constitutional monarchs with restricted executive rights. In 1707 the Acts of Union was passed by both, British and Scottish, Parliaments and led to the creation of Parliament of Great Britain. Later, in 1801, the Parliament of Ireland was abolished and 100 of its MPs joined the Parliament of Great Britain, which then formed the Parliament of UK, which we all know today. [2]

The concept of “sovereignty of Parliament” is also referred to as legislative supremacy. This means that the Parliament has unlimited legislative power. Moreover, no other institution can question or override the legislation set by the Parliament. [3]

The Parliament of UK is composed of three parts, namely; the Monarch, House of Lords and House of Commons. However, the monarch has only nominal powers and mainly has to listen to the advice of the Prime Minister who in return follows the MPs. The main functions of the Parliament are to: create/amend law, scrutinise the government, and to enable the government to make financial decisions. [4]

In UK the three powers: legislative, executive and judicial take forms of Parliament, Government and Courts (plus tribunals – to a certain extent) respectively. In UK, these powers are not separated; on the contrary they overlap and work together. For example, the judiciary and Parliament mainly share the powers, rather than separate them. This is due to the fact that in Common law system judges have a legislative rule. Despite this overlap, the judges have deferred to the authority of the Parliament since the 17th century. However, during the past two decades, there has been a shift in the balance of powers due to UK’s “increased obligations to Europe”. [5] It could be seen that the courts could refuse to apply the primary legislation, when it conflicted European Communities Act (1972) or European Convention on Human Rights. [6]

At first look it might seem that the UK has lost some of its sovereignty since the introduction of EU. However, this is not entirely the case because the Parliament of UK has allowed the EU to take precedence over UK law by signing European Communities Act 1972, and may withdraw from it at anytime and abolish all EU law in UK.

Comparing this system of separation of powers to the US, it is obvious that there is a clear difference. In US, the separation of powers between the three branches of the government is stricter compared to UK. There is a system of checks and balance, which enables control and influence to be exercised by each branch upon the others, so as not to abuse the powers. This shows that even in the US, the separation of powers is not complete, but compared to UK, it is a lot stricter. [7]

Doctrine of Precedent:

The English legal system of precedent is based on the Latin principle of stare decisis, which means to stand by things decided. The decisions of higher courts are generally binding the decisions of lower courts; this is known as the principle of binding precedent. [8] However, if a judge concludes that the facts of the case are different from the case containing the precedent, then he/she is not bound by the precedent. This proves that the doctrine of precedent is not rigid. The part of the case which is binding is known as ratio decedendi (i.e. the reason for the decision), which is broadly the principle established by the case. Any other comments made by the judge are known as obiter dicta, and are not binding. [9]

It is possible to avoid the usage of precedents, in order to allow the law to develop and get rid of a false decision. There are a number of ways through which this can be accomplished:

Through distinguishing a case (on its facts or on the point of law involved) judges can avoid the result of an earlier inappropriate decision e.g. Balfour v Balfour (1919) and Merritt v Merritt (1990). In both cases, the wife made a claim against her husband for breach of contract. In Balfour, it was held that the claim was invalid, because the matter between the husband and wife did not involve legal arrangements. In Merritt, the case of Balfour was distinguished because the parties actually had a legal agreement in writing, so it was a legally enforceable contract.

By overruling a precedent. This can be done in two situations. First, when the judge believes that the earlier decision was made incorrectly. Second, when the decision made in the previous case is no longer desired.

By reversing the decision, on appeal level, which was made by a lower court.

By claiming that the decision made in the binding precedent was per incuriam (i.e. decisions made without the reference of an earlier judgement or statute, which might have been relevant).

Consequently, it can be seen that the doctrine of precedent is not rigid after all. The judges have the power to not follow a precedent, when they feel it is not applicable. I believe this quality of the case law makes it flexible.

It is worth noting that the case law plays the same role in both the English legal system and the American legal system. In US, the legal system developed on the basis of precedent, just like in the UK.

Evaluation:

As it has been mentioned earlier, the Parliament is the most sovereign institution within UK. However, its sovereignty has been affected by the EU. Many claim that the Parliament is no longer sovereign, because the EU law prevails over the English law. However, I believe that this is not the case, because it is by the agreement of the Parliament (European Communities Act 1972) [10] that EU law now prevails over English law. Moreover, the Parliament has the right to withdraw from this agreement whenever it wants to do so. Thus I feel that the supremacy of Parliament is still intact because it possesses unlimited legislative power, but it is not visible as clearly as it used to be because it lacks the political will to legislate in direct conflict with EU law.

Even though, due to Parliamentary sovereignty, statutes have become the primary source of law. We cannot avoid the fact, that precedents have played an enormous role in the development of English legal system over the centuries and therefore have become a part of the British culture. The English legal system is based upon the precedents; therefore they cannot be regarded as “of no particular importance”. I think that the precedent and statutes are both of equal importance and play an equally vital role in the English Legal System. Moreover, the English legal system would be incomplete without one of these two elements. Therefore, I feel that both should be seen as complementary.