Public Law Presentation – Parliamentary Sovereignty

Introduction

The origins of the principle of parliamentary sovereignty are controversial:

some attribute its origins to the early 16th century, when Parliament asserted the supremacy of statute over the Church;

more popularly, it is claimed to have arisen in the 17th and 18th centuries, when Parliament asserted the right to name and depose a monarch.

The doctrine of parliamentary sovereignty may be summarised in three points:

Parliament can make law concerning anything;

no Parliament can bind a future parliament (that is, a law made by ne Parliament may be changed or reversed by a future Parliament); and

a valid Act of Parliament cannot be questioned by the court, so Parliament is the supreme lawmaker.

The importance of parliamentary sovereignty was highlighted by A V Dicey when he established this principle as one of the “twin pillars” of the British constitution. The importance of the doctrine lies in the fact that:

the British constitution is largely unwritten, the written part comprising laws passed by Parliament; hence,

in order to ensure the growth and development of the British constitution, Parliament must be sovereign to continue to pass laws that reflect the changing socio-economic needs of the country.

The courts affirmed the doctrine of parliamentary sovereignty in Madzimbamuto v Lardner-Burke (1969), when Lord Reid said,

“… it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts would not hold the Act of Parliament invalid.” (emphasis supplied)

The sovereignty of Parliament has already been diluted by the devolution of power to bodies like the Scottish Parliament and the Welsh Assembly but, increasingly, parliamentary sovereignty is at risk:

externally because of the United Kingdom’s membership in the European Union, making British legislation subordinate to European legislation; and

internally because of manipulations by the government of the day through the guillotining of Bills, which subverts confidence in the laws so passed – e.g. in 2004, the Lord Chief Justice, Lord Woolf – commenting on the Government’s inclusion of a comprehensive ‘ouster clause’ in the Asylum and Immigration (Treatment of Claimants, etc.) Bill, to exclude the judicial review of decisions on applications for asylum – suggested that if the clause were to become law, the courts would simply refuse to apply it.

The erosion in the sovereignty of Parliament is illustrated by a comparison of the courts’ position on the issue in 1969 and 2004:

Courts’ Position on Parliamentary Sovereignty

1969

2004

Lord Reid:

Lord Woolf:

The courts will not hold a law to be invalid, even if such is unconstitutional.

The courts may refuse to apply a law, if such is unconstitutional.

[viz. Madzimbamuto v Lardner-Burke]

[viz. Asylum and Immigration (Treatment of Claimants, etc.) Bill]

The United Kingdom and the European Union

The purpose of the European Union developed from one of merely avoiding extreme forms of nationalism to one of economic cooperation to a fully integrated macrocosm encompassing, inter alia, economic, fiscal, political, social, legal, military and environmental considerations, as illustrated by the historical development of the European Union:

After World War II, there were moves towards European integration against the extreme forms of nationalism that had devastated the continent, one such attempt being the European Coal and Steel Community, which aimed to centralise control of the previously national coal and steel industries of its six member states.

In 1957, the member countries signed the Treaties of Rome, which extended the earlier cooperation within the European Coal and Steel Community and created the European Economic Community and the European Atomic Energy Community.

In 1967, the Merger Treaty created a single set of institutions for the three communities, collectively referred to as the European Community.

In 1979, the first direct, democratic elections to the European Parliament were held.

In 1985, the Schengen Agreement created open borders without passport controls between most member states and some non-member states.

In 1986, the European flag began to be used by the Community and the Single European Act was signed.

In 1993, the European Union was formally established when the Maastricht Treaty came into force.

The United Kingdom’s first application for membership having been vetoed in 1961, their accession to the European coalition finally came in 1973, following their re-application for membership in 1967. The United Kingdom’s primary reason for joining the Community was economic – at the time, it traded primarily with its former empire and growth was sluggish because the greatest increases in world trade was between industrialised countries, such as those within the European Economic Community.

However, continued membership of the Europe coalition is contingent upon member states’ conformance to the coalition’s policies, which dilutes the sovereignty of member states since:

as a legal personality, the European Union is able to conclude treaties with countries and member states are bound by such treaties, these being the primary source of Community law;

the European Union has the power to enact legislation that directly affects member states in the form of regulations and decisions (which are binding without the need for implementation measures) and directives (where the objectives are binding though the form of implementation can be decided my member states);

in Flaminio Costa v ENEL (1964), the decision of the European Court of Justice established the supremacy of European Union laws over national laws; and

with the European Communities Act 1972 and the Human Rights Act 1998, the United Kingdom ratified European policies thereby undermining the sovereignty of its Parliament by effectively making British law subordinate to European law.

Challenges to Parliamentary Sovereignty

Parliamentary sovereignty has been challenged numerous times, both by the European courts as well as by the domestic courts of the United Kingdom when upholding European law.

An important illustration of the attrition of parliamentary sovereignty by European courts may be seen in the Factortame cases, the salient facts of which are as follows:

in 1980, the European Union concluded a fisheries agreement with Spain, giving Spain (having the largest fishing fleet in the Union) limited rights to fish in the waters of the Member States (Spain did not become a member of the Union until 1986);

Spanish fishermen took advantage of lax fishing vessel registration requirements in the Merchant Shipping Act 1894 – which allowed ownership of vessels by UK-registered companies – to re-register Spanish vessels and new UK vessels under UK-registered companies, one such company being Factortame Limited, whose directors were all Spanish nationals living in Spain but who landed most of their catches in Spain;

in 1983, environmental concerns arose over excessive fishing and the European Union imposed controls, including ‘total allowable catches’ that set maximum quotas of fish that could be caught by each member state;

the Spanish vessels that were ‘quota hopping’ – that is, fishing in UK waters, which counted towards the UK quota, but landing their catches in Spain – became a problem for the UK (which did not benefit from the profits from the fish, yet bore the detriment of the quota controls) and the UK sought to curtail this practice by effecting several measures, amongst which was the requirement to re-register vessels under the Merchant Shipping Act 1988 and the Merchant Shipping (Registration of Fishing Vessels) Regulations, whereby a vessel could only be registered if it had “a genuine and substantial connection” with the UK through the fulfilment of three conditions:

vessels had to be British-owned;

vessels had to be managed and their operations had to be directed and controlled from the UK; and

any charterer, manager or operator had to be a qualified person or company, a “qualified person or company” being a British citizen living in the UK or a UK-incorporated company having its principal place of business in the UK and with at least 75% of its shares owned by, and at 75% of its directors being, ‘qualified persons’; and

Factortame brought an action for judicial review in the Divisional Court.

The sovereignty of Parliament was challenged and eroded in the case known as Factortame 1, where:

Factortame sought:

a preliminary injunction declaring that the offending part of the 1988 Act could not be applied to them because such would contravene EU law guaranteeing the right not to be discriminated against on the grounds of nationality, the right of individuals and companies to establish themselves in business anywhere in the EU and the right to participate in the capital of companies situated in another member state (Spain having joined the EU in 1986, before the Act was passed); and

an order of prohibition preventing the Secretary of State from treating Factortame’s vessel registrations under the 1894 Act as having ceased;

the UK government argued that the registration requirements were intended to ensure that vessels flying the British flag had a genuine link with the UK and was consistent with international law, which entitled each county to determine the conditions under which a ship might fly its flag, which right had not been removed by Community law;

the Divisional Court referred the matter to the European Court of Justice, asking whether requirements as to nationality, domicile and control imposed by a member state as conditions for vessel registration were compatible with Community law whilst granting the requested injunction pending a ruling by the ECJ but the Court of Appeal reversed the decision on the basis that though national courts were obliged to give effect to Community law, they were not obliged “to override national law in favour of what is no more than an alleged or putative Community right” and because it did not believe the Divisional Court had “acknowledged the constitutional enormity, as the law stands, of requiring a Secretary of State to act contrary to the clearly expressed will of Parliament when the unlawfulness of that expression has yet to be established”, and the Court of Appeal’s decision was subsequently upheld by the House of Lords;

The European Court of Justice decided that a national court must have the power to provisionally set aside a national law which conflicts with Community law and must apply EC law through available national procedures or, failing that, of their own motion and ruled that a national court has a duty to grant interim relief to safeguard alleged Community rights of individuals until the decision of the ECJ on the interpretation of Community law is available, and where a rule of national law would deny such relief, to set aside that rule; and

following the European Court of Justice’s ruling, the House of Lords granted an injunction in Factortame’s favour, thus triggering wide-spread public criticism of the adverse impact of the decision on parliamentary sovereignty.

The sovereignty of Parliament was further challenged and eroded in the case known as Factortame 2, where:

the European Court of Justice, in deciding whether the conditions for vessel registration under the 1988 were compatible with Community law, ruled that while each member state was free to determine the conditions for vessel registration, such conditions must comply with Community law and, in particular, could be neither prohibitive to members of other member states nor discriminatory on the basis of nationality;

the European Court of Justice thus found the registration prerequisites of the 1988 Act violated Community law; and

the sovereignty of Parliament was yet again undermined.

The importance of the Factortame case is twofold:

firstly, the European Court of Justice re-asserted the supremacy of Community law and its ability to overrule conflicting domestic legislation; and

secondly, it also changed the balance of power in the constitution because the judiciary is now able to set aside the will of the legislature despite having knowledge of its express wish.

An illustration of the erosion of parliamentary sovereignty by domestic courts may be seen in A (FC) v Secretary of State of Home Department, where the House of Lords ruled that the indefinite detention without trial of foreign nationals suspected of terrorism contravened the provisions of the European Convention on Human Rights concerning liberty and equality.

The United Kingdom Parliamentary Sovereignty Bill

The United Kingdom Parliamentary Sovereignty Bill aims to reaffirm the sovereignty of Parliament and essentially calls for:

the prohibition on any minister – whether by prerogative power or statutory authority – signing, ratifying or implementing any treaty or law that is inconsistent with the Act or that increases the functions of the European Union affecting the United Kingdom without a referendum of the British people;

the Act to have effect, both retrospectively and prospectively, irrespective of:

the European Communities Act 1972;

any prerogative power or rule of international law; and

any Act, whenever enacted, unless such Act expressly states that, following a referendum, that it overrides this Act; and

the Queen to withhold royal assent to any Bill that has not been approved by both Houses of Parliament and a referendum if that Bill:

does not comply with this Act;

attempts to amend this Act; or

claims to amend this Act.

The primary purpose of this proposed legislation is to prevent further derogation from the sovereignty of Parliament, which has increasingly occurred since the United Kingdom’s accession to the European Union.

In recent years, the Human Rights Act 1998 – which gives effect to the European Convention on Human Rights – has come under severe criticism when British courts have been compelled to make sympathetic decisions in cases involving suspected terrorists in order to give effect to European law.

This has highlighted the need for domestic law to take precedence over European law where the security of the people of the United Kingdom is at stake, but, as things stand, British courts are forced to resolve legislative conflicts between domestic and European law in favour of the latter.

However, in Macarthys Ltd v Smith, Lord Denning said, “If the time should come when our Parliament deliberately passes an Act – with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it – and says so in express terms then … it would be the duty of our courts to follow the statute of our Parliament”.

This means that, if the United Kingdom Parliamentary Sovereignty Bill passes into law, courts in the United Kingdom would give it effect, thus limiting the dominance of European law in the United Kingdom.

Conclusion

The sovereignty of the British Parliament is undoubtedly under threat, partly from the devolution of powers to the member countries of the United Kingdom but mainly from the supremacy of European Community law established by the European Court of Justice.

The United Kingdom Parliamentary Sovereignty Bill attempts to re-establish parliamentary sovereignty by shifting legislative emphasis back to domestic laws, requiring laws to expressly state an intention to deviate from the Act.

Theoretically, the United Kingdom Parliamentary Sovereignty Bill, if it passes into legislation, will redress the concern of the erosion of parliamentary sovereignty.

Practically, however, the proposed new legislation looks to cause more problems it will solve by:

challenging European Community legislation;

creating a conflict between British and European courts; and

breaching the treaties the United Kingdom has entered into with Europe.

A survey of British nationals appears to confirm the preceding conclusion, the Bill being described as a probable “knee-jerk” reaction from politicians in light of increasing pressure and criticism from the electorate (fuelled by the media) following the challenge to legislative sovereignty when the judiciary upheld the Human Rights Act 1998 over the Anti-terrorism, Crime and Security Act 2001 – the view seems to be that in order to “be seen to act”, politicians attempt to force through legislation that:

is not well thought out;

has loop holes; and

may, in some instances, be contrary to European law.

The only practical way the United Kingdom can regain parliamentary sovereignty is either by:

withdrawing from the European Union; or

convincing the European Union to agree to the devolution of legislative power back to member states,

neither option being particularly likely in the foreseeable future.

Paradoxically, the proposed legislation itself, if it passes into law, will breach the doctrine of parliamentary sovereignty by binding subsequent Parliaments into expressly declaring that any Act passed overrides the provisions of the United Kingdom Parliamentary Sovereignty Bill.