Effect of Parliamentary Sovereignty on Government and Democracy

“Does Parliamentary Sovereignty promote good government and strong democratic and constitutional values? Refer to the relevant literature and case law including the Miller case on Article 50.”

To understand the question, we are faced with we must first understand what parliamentary sovereignty is and its origins. Parliament was identified as being sovereign in the English Bill of Rights (1689)[1]. This document set out the limitations of the monarch’s powers and the rights of parliament. Parliamentary sovereignty is a principle of the UK constitution, which makes parliament the supreme legislative body within the UK. This means no other body may end legislation passed by parliament. A.V Dicey defined Parliamentary Sovereignty from a traditional point of view. He looked at it is a set of rules and said, “The principle of Parliamentary sovereignty means neither more or less than this, namely, that Parliament […] has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”[2]. His definition highlights three main principles of Parliamentary sovereignty. Parliament may make and unmake laws. The laws passed by parliament may not be questioned based on validity, and finally, no Parliament may bind future Parliaments. However, it is essential to ask, exactly how sovereign is Parliament.

There can however be different views on one subject matter. Sir Ivor Jennings did not agree with Dicey’s view that Parliament could bind Itself. He said, “If this is so, the “legal sovereign” may impose legal limitations upon itself, because its power to change the law includes the power to change the law affecting itself … The law is that Parliament may make any law in the manner and form provided by the law. That manner and form is provided, at present, either by the common law or by the Parliament Act of 1911[3]. But Parliament may, if it pleases, provide another manner and form.”[4]

The courts have also questioned Dicey’s view in recent times. In Jackson v Attorney General[5], the courts were tasked with determining whether the Hunting Act 2004[6] and Parliament Act 1949[7] were valid Acts of Parliament. This was because both Acts had bypassed the House of Lords. In the Jackson case[8], Baroness Hale in Obiter said, “The concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything. The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.”[9]

Baroness Hale in her comments noted how Scotland although is part of the UK isn’t exactly bound by the concept of Parliamentary Sovereignty. Scotland Act 1998[10], permits Scotland to create its own legislation on matters which were not specified as “reserved”. However, there is a convention between the UK Parliament and Scottish Parliament where it has been agreed that the UK Parliament may not legislate on matters which have been “devolved” without agreement from the Scottish Parliament. [11]

Baroness Hale also makes mention of the rule of law, it is a concept which has been spoken about all to often by many scholars. A.V Dicey identified three key principles of the rule of law. He noted that the law should be above arbitrary power, he then went on and said all men should be equal before the law, the final principle on the rule of law stated that every man has rights which should be protected by independent courts.[12] The rule of law according to Lord Bingham is “the nearest we are likely to approach to a universal secular religion”[13].

There are two conceptions on the rule of law. The formal and substantive conceptions. The formal conception was led by Joseph Raz. He believed that the rule of law was not to be confused with democracy or justice or respect of human rights[14]. According to him what was more important was the process of the law rather than its content. Looking at Parliamentary sovereignty considering Raz’s views it is easy to say that it conforms with the rule of law, because according to him, the rule of law didn’t mean the rule of “good” law [15]. However, a key feature of his view was that the law was to provide guidance for the people. In the UK the laws are contained in statutes meaning there is no written constitution. How is the law meant to guide the people if they are unable to access it easily? It is however arguable that in this modern era that we are in, it is easier to access laws via the internet.

The substantive conception of the rule of law was led by Lord Bingham. For him the most important thing was the protection of human rights[16]. For him what is more important is the content and not the process of law. Parliamentary sovereignty means Parliament can do anything, even legislate against human rights which according to Lord Bingham would be against the rule of law. However, in practice, Parliament may be unwilling to do such because the MPs are elected by the people, who are the politically sovereign. This was shown in practice after the European Union Referendum Act 2015[17], and the question came up as to whether the results of the referendum was binding.   

The principle of rule of law cuts across so many systems of government. Applying Raz’s views, it is easy to say that a set down system is in line with the rule of law. It is possible to say those in Nazi Germany carrying out the killings were doing so in accordance with the rule of law. This is because for Raz process and not content matters. However, looking at other systems from Bingham’s perspective would mean only one which protects human rights observes the rule of law. Take a government where the constitution is supreme, say Nigeria for example, chapter one of the 1999 constitution part one states that the constitution is supreme and binding on all within the federation and chapter four of the 0document also makes provision for human rights. This means no laws can be created which are in violation of human rights which are contained in the constitution.

The principle of separation of powers is one which must not be forgotten as it is essential in any good government. Now the question is does the principle of Parliamentary Sovereignty ensure separation of powers between the three arms, the legislature, executive and judiciary. Parliament is the legislative arm and oversees the creation of laws. The executive is led by the Prime Minister with aid from ministers, the Prime Minister is appointed from the party that wins the general elections. The judiciary is the arm which is to interpret legislation passed by Parliament. The judiciary performs other functions such as judicial review, and declaring legislation compatible with the Human Rights Act 1998[18]. The function of the judiciary under the Human Rights Act is to declare legislation incompatible. This does not mean it may strike down legislation as that is a function of Parliament, in accordance with Parliamentary Sovereignty. This was displayed in A v Secretary of State for The Home Department (2005)[19]. In countries where the constitution is considered supreme, for example the United States of America, judges in accordance with their powers under judicial review may declare legislation to be in violation of provisions of the constitution and declare it void.[20] This function of the courts was established in the case of Marbury v. Madison[21]. 

The powers of the executive are also separated from that of the other arms. These powers are known as the Royal prerogative. They were those powers left in the hands of the monarch following the Great Revolution, however they are now performed by the government, the Prime Minister and her ministers. Powers under the Royal Prerogative include the issuing and withdrawal of passports, calling of elections, making of treaties and declaration of war[22]. Following the UK’s decision to leave the EU, there were discussions on who should trigger Article 50[23], this led to the Miller case[24]. In the Miller case[25], the main issue for the courts to decide was whether, it was right for the government using the prerogative power to create and end treaties, to trigger Article 50 [26]without Parliamentary authorisation. The court noted the general rule, stating that the government has the prerogative power to withdraw from treaties, it however can not exercise these powers if they will change UK laws unless authorised to do so. [27] The claimants argued that leaving the EU will change UK law and thus was a decision to be left to Parliament. The government argued that the European Communities Act 1972[28] did not subtract from the power of ministers to withdraw from EU treaties. They also argued that section 2 of the act[29] allowed for the use of such powers. The judges by a majority decision found for the claimants, citing that the fact that EU laws make up a part of UK law and the withdrawal from the EU will create a gap in the local law that parliament must decide on the matter. This case shows the importance of Parliamentary sovereignty in the UK. The Miller case, in relation to separation of powers helps highlight how important the principle of Parliamentary Sovereignty is in the UK, it is so important that it appears that upholding the principle of Parliamentary Sovereignty is more important than ensuring the other arms of government can perform their designated functions properly.

Another key constitutional principle is that of representative government, Parliament is made up of two houses, the House of Commons and the House of Lords. There are 650 MPs in the House of Commons[30], they are elected by those from their constituencies. There are 800 Lords in Parliament[31], Lords are not elected. There are three types of Peers, Hereditary Peers, they are members because of their birth right. Life Peers are those appointed by the Queen on the advice of the Prime Minister and can not pass their peerage to their children, this position was developed in the 20^th century when the government realised that there were majorly hereditary peers in the House of Lords. The House also consists of Spiritual Peers, there are however, only the Church of England is represented. Considering that Parliament claims to be representative of the people, how is that only 650 of the 1,450 members of Parliament are elected.

In conclusion, it is evident that parliamentary sovereignty negates the major democratic and constitutional principles, such as the rule of law and separation of powers. Thus, how can parliamentary sovereignty be said to promote good governance.

BIBLOGRAPHY

CASES LIST

• A & Ors v. Secretary of State for the Home Department [2005] UKHL 71
• Jackson & Ors v. Her Majesty’s Attorney General [2005] UKHL 56
• Marbury v. Madison, 5 U.S. 137
• Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5

STATUTES

•  Lisbon Treaty
• English Bill of Rights 1689
• European Communities Act 1972
• Human Rights Act 1998
• Hunting Act 2004
• Parliament Act 1949
• Scotland Act 1998

BOOKS

• A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 10^th edn 1995, London: Macmillan & Co)
• Lord Bingham, ‘The Rule of Law’ (First published 2010, Allen Lane)
• W.I. Jennings, The Law and The Constitution, 4th ed. (London: University of London Press, 1952)

JOURNAL ARTICLES

• Joseph Raz, The Authority of Law: Essays on Law and Morality, 1979, p.211
• Lord Bingham, ‘The Rule of Law’ Cambridge Law Journal (2007) p.76

WEBSITES

• Www.gov.uk, ‘Devolution Settlement: Scotland’, 20th February 2013 https://www.gov.uk/guidance/devolution-settlement-scotland
• Appendix 5: Paper by professor Paul Craig: The Rule of Law <https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm>
• “About the Supreme Court” <http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about >
• “Q&A: Royal Prerogative” (The BBC, 15 February 2005)
• < http://news.bbc.co.uk/1/hi/uk/4267761.stm>
•  “House of Commons” < http://www.parliament.uk/business/commons/ >
•  “Who is in the House of Lords” < http://www.parliament.uk/business/lords/whos-in-the-house-of-lords/ >

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[1] English Bill of Rights 1689

 [2] A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 10^th edn 1995, London: Macmillan & Co)

[3] Parliament Act of 1911

[4] W.I. Jennings, The Law and The Constitution, 4th ed. (London: University of London

Press, 1952)

[5] Jackson & Ors v. Her Majesty’s Attorney General [2005] UKHL 56

[6] Hunting Act 2004

[7] Parliament Act 1949

[8] Jackson & Ors v. Her Majesty’s Attorney General [2005] UKHL 56

[9] Jackson & Ors v. Her Majesty’s Attorney General [2005] UKHL 56, [159]

[10] Scotland Act 1998

[11] Www.gov.uk, ‘Devolution Settlement: Scotland’, 20^th February 2013 <https://www.gov.uk/guidance/devolution-settlement-scotland >, accessed 28^th November 2017

[12] Appendix 5: Paper by professor Paul Craig: The Rule of Law <https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm> accessed 22 November 2017

[13] Lord Bingham, ‘The Rule of Law’ (First published 2010, Allen Lane)

[14] Joseph Raz, The Authority of Law: Essays on Law and Morality, 1979, p.211

[15] Ibid

[16] Lord Bingham, ‘The Rule of Law’ Cambridge Law Journal (2007) p.76

[17] European Union Referendum Act 2015

[18] Human Rights Act 1998

[19] A & Ors v. Secretary of State for the Home Department [2005] UKHL 71

[20] “About the Supreme Court”<http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about > accessed 25^th November 2017

[21] Marbury v. Madison, 5 U.S. 137

[22] “Q&A: Royal Prerogative” (The BBC, 15 February 2005) < http://news.bbc.co.uk/1/hi/uk/4267761.stm> accessed 25^th November 2017

[23] Article 50 of the Lisbon Treaty

[24] Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5

[25] Ibid

[26] Article 50 of the Lisbon Treaty

[27] Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC   5

[28] European Communities Act 1972

[29] European Communities Act 1972 s (2)

[30] “House of Commons” < http://www.parliament.uk/business/commons/ > accessed 29^th November 2017

[31] “Who is in the House of Lords” < http://www.parliament.uk/business/lords/whos-in-the-house-of-lords/ > accessed 29^th November 2017