A vital reaffirmation of Parliamentary sovereignty
Sandra Fredman FBA, QC is a Professor of Law in the Faculty of Law and a Fellow of Pembroke College.In a ringing defence of the power of Parliament against the executive, the Supreme Court today held that the decision to trigger the process of leaving the EU cannot be taken by the executive alone. Withdrawal from the EU makes a fundamental change to the UK’s constitutional arrangements, and rights of UK residents will be lost. Such a change can only be effected by Parliament. Moreover, the Court made it clear that it was not enough to consult Parliament: the trigger to leave the EU had to be in statute. Nor did it accept that it was sufficient that ministers were accountable to Parliament for the exercise of such powers: the Crown’s ancient prerogative power cannot be used in a way which removes existing rights of UK citizens.
One of the most disturbing consequences of the referendum has been the insistence that the Government is entitled to exercise its powers in relation to Brexit without involving Parliament. In a constitution whose central principle is Parliamentary sovereignty, such claims must be viewed with deep suspicion. Human rights are already precarious if left in the hands of a sovereign Parliament without a written constitution, especially where, as in the UK, the legislature is heavily dominated by the executive. Even more so if Parliament can be sidestepped. It is therefore of immense importance that the Supreme Court in Miller stepped in to protect the power of Parliament against the executive.
It is notable that the Government relied on the prerogative, the residual power of the Crown, to make its claim. In a modern democracy, the role of the prerogative is presumptively problematic. As the Court pointed out, the powers of the monarch to legislate or take executive action without the consent of Parliament have been progressively constrained since the 17th century. The Crown’s administrative powers are now exercised by ministers answerable to Parliament. These powers must be compatible with both legislation and the common law: otherwise, ministers would be able to change the law, breaching the fundamental principle of Parliamentary sovereignty. Although the Court accepted that prerogative powers are appropriate in the conduct of foreign affairs, this was strictly because under the UK’s ‘dualist’ system, treaties agreed between the UK and another foreign state cannot affect citizens’ rights in domestic law without Parliamentary legislation.
The Government nevertheless argued that the European Communities Act 1972, which acts as the ‘conduit’ for EU law into domestic law, should be interpreted so that the prerogative power to withdraw from treaties is not excluded. It went so far as to argue that acts of the government in the exercise of the prerogative can alter domestic law. The majority judgment convincingly rejected this contention. Indeed, it held that by the 1972 Act, Parliament endorsed the UK’s membership of the EU in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw.
It is repeatedly claimed that because the ‘people have spoken’ through the referendum it is right for the executive to act without Parliamentary consent. Does this mean that the claims of direct democracy, in the form of the referendum, trump the claims of Parliamentary representative democracy, with the paradoxical effect of giving more power to the executive? The majority emphasized that referenda are themselves a product of Parliamentary authority and must therefore depend on the statute which authorises them. The 2015 EU referendum Act simply provided for the referendum to be held without specifying the consequences. ‘Where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation.’
This does not undermine the political significance of the referendum. It does, however, reassert the basic tenet that the people speak through their Parliamentary representatives in a democracy. Direct democracy cannot be operationalised by giving undiluted power to the executive.
The human rights implications of leaving the EU are profound. With neither a justiciable bill of rights, nor the binding nature of EU rights, Parliament remains the last custodian of human rights in the UK. The Supreme Court in Miller, far from exerting the power of an unelected judiciary, in fact reasserted the fundamental democratic principle of government through representative Parliament.
European Union raises fundamental questions relating to the doctrine of parliamentary sovereignty
The Constitution of the United Kingdom is creaking. Based on unwritten conventions and an ineffectual separation of powers the government fails to be truly accountable. The House of Lords remains an anachronism and our membership of the European Union raises fundamental questions relating to the doctrine of parliamentary sovereignty. Discuss.
There are several arguments applicable to the context of the constitution of the United Kingdom (UK); the effect of the UK constitution not being composed of written or codified rules, the doctrine of rule of law as put forward by Professor Albert Venn Dicey in ‘The Law of the Constitution’ 1 and the doctrine of parliamentary sovereignty and the effects of the new Labour government’s encouragement of devolution, joining of the European Union (EU) and suggested reform of the House of Lords thereon.
lism, as in the United States.
The UK constitution is comprised of unwritten conventions and rules, though the Bill of Rights 1689 has provided the basis for the legislative powers of Parliament and common law for the powers of the Monarch. Dicey was of the view that the UK constitution, although being unwritten, was based upon the principles of the legal sovereignty of Parliament and the rule or supremacy of law. However, there is the argument that this form of constitution, being without legally enforceable guarantees cannot fulfil the definition of a constitution 2.
Dicey’s view was that the rule of law stated that firstly, individuals could not be subject to a wide discretionary legislative power, that everyone would have the same fair treatment in the courts, and that as there was no written constitution, that constitutional law was the “result of the judicial decisions determining the rights of private persons in particular cases brought before the courts”.
1 , 10th edition
2 Vernon Bogdanor in “Essays on British Government”: ‘The Politics and the Constitution’ (Dartmouth 1996)
3  309-310
The United Kingdom does not have a codified constitution, unlike France or the United States, and this has a historical basis. From the end of the eighteenth century and throughout the nineteenth century there was a push towards the principle of constitutionalism, that there should be limits upon the absolute power of government, as it was recognised that this was very dangerous if unchecked, and the revolution in France in 1789 and 1830, the appointment of an absolute monarch in Spain in 1812 and the establishment of the constitution of the Kingdom of Italy are examples of the wave that occurred at this time
This view was criticised by subsequent authorities such as W. Ivor Jennings in “The Law and the Constitution” 3, which stated that this view reflected Dicey’s political leanings as a ‘Whig’ resisting the discretionary power of the State. The problem with this theory is that it is not broad enough to encompass the modern principles of democracy in the United Kingdom, including the freedoms of the individual introduced by the Human Rights Act (HRA) 1998 set out in the European Convention in Human Rights (ECHR), and it therefore merely supplies a foundation to the notion of democracy
In the context of parliamentary sovereignty (Parliament in the UK being the supreme and absolute power) which has long been accepted as the fundamental doctrine of constitutional law in the UK, the purpose of a constitution is to limit such powers of government and divide powers amongst different bodies with a view to establishing a check on those powers, called the separation of powers
In the eighteenth century, there was a balance of powers of the King, House of Lords and the House of Commons in the United Kingdom, and at the time that Dicey advocated his views about the constitution, this balance of power was followed more avidly than in the present day, as the Monarch had considerable discretion to choose the Prime Minister, and the House of Lords had the same powers as regards participating in making of legislation as the House of Commons. The Preamble to the Parliament Act 1911 removed the House of Lord’s power to veto legislation passed by the House of Commons, and since thereafter there has been no constitutional mechanism by which the House of Common’s supremacy can be challenged.
The new Labour government has proposed to reform the House of Lords with a view to making it more representative of the population, and the House of Lords Act 1999 excluded hereditary peers from membership, also a Royal Commission was established in February 1999 with Lord Wakeham as chairman with a view to make recommendations on a second chamber and the composition thereof.
The report, published in January 2000, made recommendations which were largely supported by the government in their White Paper 4, and it was stated that hereditary peers would cease to have any privileged rights of membership, the majority of members of the second chamber (comprising of up to 600) would be nominated by political parties to reflect the shares of the national vote, 120 of those members would have no affiliation to a political party and 120 would represent the regions and nations.
Some authorities consider that constitutional conventions are not of much worth in their role as fulfilling the principle of constitutionalism 5, but it is clear that some conventions are more followed than others. During the Ulster crisis of 1913-1914 George V thought about refusing the Royal Assent, but nowadays that would be almost unthinkable because of firm conventions limiting the powers of the Monarch, which have led to the evolution of a democratic society in the United Kingdom. Another convention which is always followed is the leader of the majority being chosen as the Prime Minster in government. The conventions which are subject to the government’s discretion are those which apply to the relationship between the political executive, Parliament and the public.
4 The House of Lords - Completing the Reform: Cm 291
5 Bogdanor, (ibid)
Regarding the transfer of powers from Parliament to Scotland, Wales and Northern Ireland, the general principle is that British parliamentary sovereignty over the entire UK is legally absolute. However, since the election of the new Labour government, firstly the creation of the Scottish Parliament via the Scotland Act (SA) 1998 has been intended to strengthen the union between Scotland and the remainder of the UK by allowing the Scots to run their own domestic affairs with regard to local government, health, education, housing, economic development and transport. The UK Parliament retains authority over constitutional, foreign and EU affairs.
Although there has been a devolution of powers in this instance, it can be argued that the UK Parliament retains full sovereignty and supremacy, because the Scottish Parliament has been devolved via UK legislature, and at section 28(7) of SA 1998, it states: “This section does not affect the power of Parliament of the United Kingdom to make laws for Scotland”.
The Scottish Parliament was also approved by a referendum of the Scottish people, which was argued by Bogdanor 6 as being necessary to maintain the principle of constitutionalism with regard to Parliament’s transfer of powers. Furthermore, there are limitations upon the Scottish Parliament’s power to make legislation, as stated in section 29(1) SA 1998, stating that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”.
In relation to Wales, the Government of Wales Act 1998 did not intend to give Wales the same amount of autonomy as Scotland, but the government’s White Paper on the Welsh Assembly, with regard to responsibility for domestic issues such as local government, housing, transport, health and industry lying with the Welsh Office, made the proposal for a Welsh Assembly to which most of such matters should be assigned, although it would not have any legislative power. There is obviously no devolution in this case of the UK Parliament’s legislative powers.
Regarding Northern Ireland, following the implementation of the Good Friday agreement in Belfast following negotiations amongst the late Mrs Mo Mowlam, Northern Ireland Secretary and other parties, the Northern Ireland Act (NIA) 1998 has been activated. The guarantee that the UK Parliament would not seek to alter Northern Ireland’s status without a referendum is stated in section 1 NIA 1998, following on from section 1(2) Ireland Act 1949 and section 1 Northern Ireland Constitution Act 1973, but as that guarantee has not been entrenched, Parliament could in theory alter Northern Ireland’s status without calling a referendum
However, the UK Parliament would be likely to recognise its obligations in this respect and abide by the convention to do this. In fact, the result of the Good Friday agreement was that the majority of people in Northern Ireland should take the decision of whether to support a united Ireland with independent sovereignty or to continue the union with Great Britain (GB), and the New Northern Ireland Assembly was elected by virtue of the Northern Ireland (Elections) Act 1998, to deal with matters dealt with by the Northern Ireland Office departments; finance, agriculture, economic development, education, environment, health and social services.
6 (ibid) at 223-4
It should be noted that bills passed by the Scottish and new Northern Assemblies need to be approved by Royal Assent, and that the new bodies will be subject to the control of the Judicial Committee of the Privy Council. The Queen remains as the head of British government, thereby symbolising the unity of British sovereignty, and will approve the appointment of Scottish ministers, including the First Minister, who together with the Welsh Secretaries of the Welsh Assembly will need to swear the oath of allegiance to her.
With regard to devolution of legislative authority to England to appoint regional assemblies, there has not been any movement in this respect, and although the government could only consider this by holding a referendum as it would result in constitutional reform, the Regional Development Agencies Act 1998 has established the agencies throughout England, which will deal with issues such as economic development, housing, investment and employment. The referendum in 1998 established the Greater London Authority, comprising of a London Assembly and Ken Livingstone as the elected mayor, and the issues dealt with include economic development, planning, public transport and topically, the London Olympic Games.
In relation to the UK government’s move into the EU, the Crown has, by virtue of the royal prerogative in foreign affairs, the power to enter into Treaties that bind the UK in international obligations, but cannot alter the rights of the people in the UK. The UK originally joined the European Economic Community (EEC), now the European Community (EC) by virtue of the European Communities Act 1972, and all the legislative and executive power are vested in the EC organs, not those of the states.
From the case of R v Secretary of State for Transport, ex parte Factortame (No. 2) 7 the House of Lords noted, per Lord Bridge, that EC law had supremacy over the national law of states, including the UK. The general principle is that wherever British law conflicts with EC law, national legislation should not be applied. Consequently, there has been an amendment to the concept of parliamentary sovereignty in the UK, particularly since the incorporation of the principles of the ECHR into domestic law by the HRA 1998, and a significant area of legislative power has passed to the EC, although Parliament stills retains the authority whether to leave the EU, which is obviously will not occur with regard to the present government.
7  1 AC 603
In conclusion, the devolution of powers to Scotland, Wales and Northern Ireland can be argued not to have affected the position of the UK constitution in practice for the reasons provided, though these changes have brought about a change not seen since the end of the eighteenth century, as per Professor King 8. In particular, the legislative supremacy of Parliament has not been affected, and therefore it can be argued that devolution will not affect the UK constitution. The place of parliamentary sovereignty has also changed since the joining of the EU and the introduction of the HRA 1998, and further changes may occur in the future in this respect. There are attempts being made at reforming and modernising the House of Lords. In terms of sovereignty, it could be argued that the next step is federa
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