TO WHAT EXTENT DO THE TRADITIONAL PROPOSITIONS ON PARLIAMENTARY SOVEREIGNTY SURVIVE IN A MODERN DAY CONTEXT? ELLIOT KAY 'Parliament...has...

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 a right to override or set aside the legislation of Parliament 1. This initial Diceyean notion of the prominence and broad scope of Parliamentary sovereignty is one which has survived many constitutional changes and is one which is still debated to this day. It is not a proposition which stands alone, it is one which has been supported and echoed by other constitutional academics; De Lolme writes, Parliament can do everything except, making a woman a man, or a man a woman 2. In this article it shall be argued that these quotes do not fit into a modern context and that modern day parliamentary sovereignty, whilst still existing, is a diminished model of the traditional doctrine, largely due to the political realities of the modern world. However, before scrutinising the traditional doctrine, we must first understand the historical context which ensures the very existence of Parliamentary sovereignty, explaining why Parliament is in fact sovereign in the UK. HISTORICAL CONTEXT Whilst the UK does not have a constitutional document which neatly outlines the powers of Parliament or prescribes a legislative method, there is a collection of various documents from different periods of history which have collectively established the modern day unchallenged sovereignty of Parliament. The Magna Carta of 1215 was the first document which sought to acquire aspects of power from the Crown. The feudal system in place prior to the Magna Carta originally operated on the proviso that lands held by nobles were so held in exchange for an oath of loyalty to the King and an understanding that they would provide knights at times of unrest. During the reign of King John, this understanding of military supply had manifested itself via arbitrary financial payments imposed by the King which were used to maintain the army. Many nobles looked upon this as a form of unjust taxation and after uniting against the King, created sufficient pressure for the issuing of the Magna Carta 1215. It was the first time any of the Kings subjects had sought to limit his powers and ensured, no one should be denied justice or punished except by judgement of their peers or by the law of the land.3 These were the very first, primitive steps away from the absolute rule of the King, a historical journey which ultimately ends with undisputed Parliamentary sovereignty. During the Tudor period, monarchs were very active in government but Parliament became an increasingly important tool. Leyland also argues that monarchs could control Parliament and legislate as they saw fit but legislating through Parliament as opposed to dictating to it ensured the unquestioned legality of their legislation. The Stuart monarchs, especially Charles I attempted to re assert the divine right of kings as a method of governance, one of the prime motivations for the outbreak of Civil War in 1642. Parliaments victory in 1649 resulted in the abolition of the monarchy, a republic which was short lived as it was re established only 11 years later in 1660. Perhaps the most strident step towards Parliamentary sovereignty, certainly in terms of codified documents, came in the Bill of Rights 1689. The Act ensured that the monarch of the day must gain the assent of Parliament in order to execute legislation, raise taxes or to keep an army in times of peace. The Bill also guaranteed MPs free speech and debate and that Parliament must meet on a

regular basis. The Bill of Rights removed sovereignty from the King alone and replaced it with sovereignty of the King in Parliament, two vastly contrasting concepts, especially in 1689.The law making authority of the land had been passed to Parliament; Parliament was now undisputedly sovereign and the doctrine of Parliamentary sovereignty had been established.. THE TRADITIONAL DOCTRINE The traditional concept of Parliamentary sovereignty as put forward by Dicey enforces that Parliament may create any law it sees fit, a valid Act of Parliament may not be questioned by the courts as Parliament is the supreme source of law and no Parliament can seek to bind a future Parliament. Further to this, the traditional doctrine confirms that legislation enacted by Parliament has priority over previous enactments of Parliament and also over rules of common law, over international law binding upon the United Kingdom and over the enactments of subordinate legislative authorities.4 It would be highly difficult to afford a hyperbolic definition to the traditional concept of parliamentary sovereignty, the over-arching principle behind the doctrine was essentially that Parliament could do whatever it so wished, it was the very keystone of the law of the constitution5 . Some of these principles of parliamentary sovereignty still exist in the modern day, yet the traditional doctrine has been refined in order to provide us with a set of principles which is more apt to fit into the modern day legal and constitutional landscape. THE TRADITIONAL ASPECTS PRESERVED Whilst it may well be the case that the contemporary theory of Parliamentary sovereignty may well differ from that of the traditional notion, the modern day idea is itself comprised of elements of the traditional propositions. Parliament is still the supreme law making authority in the legal framework in the UK, this aspect of the traditional doctrine continues with the exception of in certain limited circumstances (which we shall analyse later). Many of the notions of the traditional Diceyean doctrine still exist and continue to operate. To this day, Parliament often legislates in a manner that is inconsistent with its previous enactments, often resulting in what may appear to be conflicting statutes. For example, parts of the Housing Act 1925 overrode provisions of the Acquisition of Land Act 1919, the Parliament Act 1949 overrides provisions of the Parliament Act 1911. However, the traditional idea of the right of the Crown and the two Houses to modify or repeal any law whatever6 still exists to this day via implied and express repeal. The existence of these two tools which are readily available at the discretion of Parliament serve to show how the Parliament of the day remains sovereign, maintaining the ability to legislate depending upon the exigencies of the present day situation, regardless of any previous enactments. Implied repeal allows for preceding legislation to be repealed via the passing of new, inconsistent legislation. This therefore maintains that Parliament need not expressly state that it wishes to legislate contrary to a previous enactment, it simply may do so and in doing so overrides the preceding, inconsistent legislation. Express repeal simply allows for the same result to be achieved but by expressly stating that the current enactment is intended to contravene a previous act or sections of a previous act. Parliament can alter an Act previously passed, and it can do so by repealing in terms the previous Act...and it can do it also in another way- namely, by enacting a provision which is clearly inconsistent with the previous Act.7 The survival of repeal proves that this aspect of the traditional proposition of Parliamentary sovereignty has been preserved. Furthermore, constitutional conventions and

common law principles may well be subject to legislation to the contrary, thus ensuring that the Parliament of the day were to be maintained as sovereign. If for example, Parliament legislated (including receiving Royal Assent) contrary to the convention which requires the Royal Assent to be granted before a Bill may be passed then it would be the duty of the courts to follow such enacted legislation, just as it is the duty of the courts to apply all enacted legislation. Therefore the possibility exists of Parliament (in the sense of the 3 limbed legislative body) using its own power to cut off one of its own limbs. All that a Court of Justice can do is look to the Parliamentary roll: if it should appear that a bill has passed both Houses and received the Royal Assent, no court can inquire into it8 Finally, it is still true that, Parliament...has...the right to make or unmake any law whatever9 , this seems unlikely to change. However, as we shall see, the political realities of such a scenario and the response of the judiciary might differ greatly (depending upon the subject matter) from the usual interpretive process. THREE CONTEMPORARY CHALLENGES TO TRADITIONAL PARLIAMENTARY SOVEREIGNTY: EU MEMBERSHIP (ECA 1972), HRA 1998 AND MODERN DAY POLITICAL PRESSURES Dealing with each of the above challenges in turn, we shall begin to see how Parliamentary sovereignty is not as robust and healthy as it once was. In Jackson v Attorney General 10 Baroness Hale concluded that, 'Parliament has also, for the time being at least, limited its own powers by the European Communities Act 1972 and, in a different way, by the Human Rights Act 1998. The legal theory of traditional parliamentary sovereignty must now bow to the stark reality of modern politics and the legal effects which flow from it. 1. EU MEMBERSHIP (ECA 1972) In 1972, the UK Parliament passed the European Communities Act and in doing so limited its sovereign rights. The constitutional consequences which stemmed from the enactment are twofold, firstly Parliament had appeared to limit itself as a higher source of law had now been established in the UK legal system and secondly it had appeared to bind its successors, two concepts which Dicey would find it impossible to comprehend. At the time of membership, it was a well established principle of Community law that any Community law passed in an area where the Community had retained competence was to reign supreme over any domestic provisions in the same area. These were of course subject to the principles of enumeration, subsidiarity and proportionality yet the fact still remained that the UK Parliament had limited the areas in which it could legislate successfully. In Costa v ENEL 11 the ECJ held, Member States have limited their sovereign rights albeit within limited fields12 and, The law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions13 . This notion was furthered in the Factortame 14 litigation where Lord Bridge stated it had, Always been clear that it was the duty of a United Kingdom court when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law15 . Therefore, it would appear that in passing the ECA in 1972, Parliament had willfully accepted to limit its own sovereign rights and powers. However, despite the plethora of case law and academic commentary which points towards the undisputed supremacy of community law, and therefore the limitation of Parliamentary sovereignty, portions of the UK judiciary have still maintained that the ECA 1972 does not impinge upon Parliamentary sovereignty. Lord Denning stated in McCarthys v Smith 16 that If the time should come when Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provisions of it......and says so in express terms then I should have thought

it would be the duty of our Courts to follow the statute of our Parliament. This was added to by Lord Justice Laws in Thoburn v Sunderland City Council 17 where he stated, There is nothing in the European Communities Act which allows the European Court, or any other institution of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom...That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. Despite these comments from two of the most esteemed and senior members of the UK judiciary, it can be argued that it is difficult to fathom how the ECA 1972 cannot impinge in any way upon UK Parliamentary sovereignty. We must simply face the stark reality which is that membership of the EU has caused the legislative supremacy of the UK Parliament to diminish and must sit alongside the supremacy of community law in certain enumerated fields. Further to this, the political entrenchment of the ECA has appeared to take place since its enactment in 1972; despite its well quoted unpopularity at times with members of many different groups of British society, no sufficiently serious or powerful challenge has ever been mounted in respect of it. The drastic international political effects of repealing the Act have almost rendered it un-repealable, a prospect we shall look at further later in this piece. Whilst it may not be technically true that the Parliament of 1972 has bound its successors, the realistic possibilities of repeal render it practically so. Therefore, as well as the legal repercussions of the ECA 1972 which limit Parliaments sovereign rights, the political pressures which compound them provide a constitutional scenario whereby we must acknowledge the reality of Parliamentary sovereignty is greatly weakened compared to its former self. It can been argued that in order to regain full Parliamentary sovereignty, something akin to secession from Europe would be necessary. However, it could be counter-argued that by welcoming the supremacy of EU law, the judiciary is simply following the ECA 1972, an Act of our Parliament; thus posing the question of where the real supremacy technically lies. 1. HRA 1998 The Human Rights Act 1998 served to incorporate most of the rights of the ECHR into domestic law. This therefore presented the opportunity to litigants to take their case to the domestic courts as opposed to the European Court of Human Rights in Strasbourg. Sections 3 and 4 of the Act serve to maintain a balance between the Convention rights included in the Act and other Acts of Parliament. Section 3 reads, So far as is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.18 This therefore shows how all future enactments are to be read in accordance with Convention rights if possible and therefore allows the courts to interpret legislation in a way which they feel to be in accordance with Convention rights. An overuse of section 3 could therefore result in significant limitations upon Parliamentary sovereignty as Acts of Parliament will be subject to the judiciarys interpretation of the legislation which could be interpretations in accordance with Convention rights, possibly changing or stretching the meaning of the legislation in the process as we saw in Ghaidan v Mendoza.19 In addition to the section 3 interpretive obligation, the courts have at their disposal section 4 declarations of incompatibility, whereby the courts may declare legislation incompatible with Convention rights. It should be noted however that this does not affect the validity or application of such incompatible legislation. Whilst this provides a theoretically weak riposte to incompatible legislation, it serves a practical function. In making a section 4 declaration of incompatibility the courts pass the problem back to Parliament as the guilty legislation, whilst still being valid will come under much political scrutiny for its incompatibility. Therefore, whilst a section 4 declaration imposes no obligation on Parliament to amend the legislation, the practicalities of a section 4 declaration are such that Parliament

would amend the incompatible legislation. The practicalities of a section 4 declaration can be seen in Bellinger v Bellinger 20 whereby section 11 of the Matrimonial Causes Act 1973 was been repealed by the Gender Recognition Act 2004. Ultimately it would therefore seem that the interpretive scope afforded to the judiciary under section 3 and the political pressures resulting from section 4 declarations serve as implicit and indirect limitations upon parliamentary sovereignty, further exacerbating the contrasts between Diceys traditional propositions on Parliamentary sovereignty and the modern constitutional scenario in which we find ourselves. 1. MODERN DAY POLITICAL PRESSURES Whilst Dicey maintained that Parliament can make or unmake any law it sees fit, and this notion to a degree is accurate, the practical possibility of Parliament employing their theoretical legislative free reign in the modern day is simply a far-fetched and redundant one. It must be noted however that Dicey did to some extent acknowledge that the practical possibility of Parliament legislating in a haphazard manner was a limited one. There was a time when Parliaments theoretical ultimate legislative sovereignty was apparent, for example when the Window Tax was first levied under William III in 1696 or the charge of treason for placing a stamp of the monarch upside down. Whilst these enactments may seem absurd, they stood as fully enacted and fully enforceable pieces of legislation, thus showing Parliaments sovereignty despite the absurdity of the enactments. However, the chances of such obscure enactments are now extremely remote, it is often argued that the media frenzy and public outcry are more than enough to deter Parliament from abusing their theoretical sovereignty. Further to this, the repercussions of legislating contrary to either community law or the HRA 1998 would cause significant political pressures for Parliament. Whilst some members of the judiciary have maintained that legislating contrary to community law would have no effect on the validity of such legislation (a prospect which is debated and not to be taken as fact), the possibility of Parliament doing so is somewhat remote. This is because the international political consequences of legislating conversely to community law in areas where the community maintains competence would be serious and vast; in fact they amount to a sufficient deterrence to Parliament to do so. Further to this, it can be seen from examples in the past that enactments which result in declarations of incompatibility under section 4 of the HRA 1998 are almost always amended. Professor Ian Loveland writes, the declaration will expose ministers to the pressure of public and/or opposition opinion to take remedial action21 . Therefore, the practical effects of section 4 declarations of incompatibility can clearly be seen as limitations upon Parliamentary sovereignty. Furthermore, it should be noted that whilst the technical possibility exists of the Parliament of the day repealing either or both of the ECA 1972 or the HRA 1998, the political consequences of such a drastic legislative amendment render the possibility almost negligible. This further highlights the political constraints and limitations which now appear to be firmly placed upon traditional Parliamentary sovereignty. In the world in which we find ourselves, it is apparent that traditional propositions on parliamentary sovereignty have almost certainly been limited by means of the far reaching and ever growing political consequences flowing from all of Parliaments legislative decisions. CONCLUSIONS The legislative decisions of the 1972 and the 1998 Parliaments have clearly brought about a significant impingement upon traditional propositions on Parliamentary sovereignty. Further to this, the media spotlight in which all enactments now find themselves have ensured sufficient political pressure has

been created to curb the scope of traditional Parliamentary sovereignty. Therefore, whilst the technical and theoretical sovereignty of the Parliament of the day still exists and probably always will, the practical nature of modern day sovereignty is far from that of the theory. Whilst I would not go as far to concur with Sir Ivor Jennings who declares, The supremacy of Parliament is a legal fiction, and legal fiction can assume anything22 I would argue that the political repercussions of legislation render parliamentary sovereignty a very limited concept in the modern day. Therefore, it seems that the traditional doctrine of Parliamentary sovereignty has been somewhat limited in the modern day. Lord Hope states, Parliamentary sovereignty is no longer, if it ever was, absolute.23 This statement in my opinion paints an accurate picture of contemporary sovereignty, it is nothing more than a shadow of its former self which does not sit entirely comfortably with the often quoted traditional propositions upon the doctrine, it has been severely humbled by the nature of contemporary politics. 1.Dicey, A.V, An Introduction to the study of the Law of the Constitution p38. 2.de Lolme, J.L, The Constitution of England p102. 3.Leyland, P, The Constiution of the United Kingdom p10. 4.Turpin, C, and Tomkins, A, British Government and the Constitution p40. 5.Dicey, A.V, An Introduction to the study of the Law of the Constitution p67. 6.Dicey, A.V, An Introduction to the study of the Law of the Constitution p119. 7.Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 per Scrutton LJ. 8.Edinburgh and Dalkeith Railway Co v Wauchope [1842] per Lord Campbell 9.Dicey, A.V, An Introduction to the study of the Law of the Constitution p38. 10.[2005] UKHL 56. 11.Case 6/64 Costa v ENEL [1964] ECR 585. 12.Ibid. 13.Ibid. 14.[2002] EWCA Civ 22. 15.Ibid per Lord Bridge. 16.[1979] 3 All ER 325. 17.(2003) QB 151. 18.Human Rights Act 1998 s 3 (1). 19.[2004] All ER 210 20.[2003] UKHL 21. 21.Loveland,I, Constitutional Law, Administrative Law and Human Rights p646. 22.Sir Jennings, I, The Law and the Constitution p70. 23. [2005] UKHL 56.