‘The UK’s membership in the European Union has fundamentally altered UK constitutional law by eroding Parliamentary sovereignty.’ Discuss.
In the 19th century, A. V. Dicey, wrote of the twin pillars of the British constitution. These pillars are the principle of Parliamentary sovereignty and the rule of law. Parliamentary sovereignty means that Parliament is the supreme law-making body: the Acts passed are the highest source of English law. Following the UK’s membership of the European Economic Community in 1972, the UK not only became bound by the laws of the EU, but also the supremacy of European Union law. The contention between the dominance of EU law over parliamentary supremacy is ascertained in Thoburn v Sunderland City Council which
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Under the terms of the 1972 Act it has 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 law.’ [R v Secretary of State for Transport, ex parte Factortame (no. 2) 1 AC 603, 658-59 (per Lord Bridge)]. Therefore it can be said that the UK retains parliamentary sovereignty in the sense that it can also leave the EU. However the UK voluntarily and knowingly entered the agreement and thus sacrificed parliamentary sovereignty which in turn restricts parliament’s legislative powers and so constitutional law in turn.
A key result of the principle of parliamentary sovereignty is that there is no hierarchy in regards to Acts of Parliament: all parliamentary legislation is, in principle, of equal validity and effectiveness. Yet, the judgement of Thoburn in 2002 indicated that there may be a special class of "constitutional statutes" such as the Human Rights Act 1998. This special class infers that parliamentary sovereignty has been eroded as despite the supposed equal validity of Acts, there are those which preside over them which in this case is EU
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In practice however the UK consents to British and European courts to review legislation to comply with international standards under the Human Rights Act 1998, and consents to follow EU law under the European Communities Act 1972. However, it has been stated that if Parliament were to expressly reject its treaty obligations the courts would be obliged to give effect to a corresponding statute, “If the time should come when our Parliament deliberately passes an Act – with the intention of repudiating the Treaty or any provision of 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.” Lord Denning, Macartys Ltd v Smith [1979] ICR at p. 789.[28] A key example of this to note is the Merchant Shipping Act 1998 which was inconsistent with EU law resulting in its
This paper will argue that the Supreme Court of Canada has adopted a quasi-legislative approach in its decision making as a result of the Charter of Rights and Freedoms, 1982. Quasi-legislative is defined as having a partly legislative character by possession of the right to make rules and regulations, having the force of law (Merriam-Webster). In this paper, it is useful to define quasi-legislative as the court’s ability to influence policy, be it innocent or motivated, through charter enf...
Cases on the foundations of a constitutional order, such as parliamentary sovereignty, tend to be rare in any event. But what makes R (Jackson) v. Attorney General [2005] U.K.HL. 56; [2006] 1 A.C. 262 a significant case, is the dicta regarding constitutional issues mentioned by the judges in relation to parliamentary sovereignty. The discussions of the central issues in the case are in many ways constitutionally orthodox, treating the primary concerns as that of statutory interpretation and adopting a literal interpretation of the 1911 Act. By contrast, the discussion of the wider issues suggest that the judiciary may have support for what could be classed as unorthodox opinions on the doctrine of parliamentary sovereignty. The concept of parliamentary sovereignty is to be considered as a mere ideology in the eyes of the legislature, as the modern day practical sovereign parliament is far from that of the theory.
an Act of Parliament, a court ruling or an EU law in comparison to the
One of the most influential and celebrated scholars of British consistutional law , Professor A.V Dicey, once declared parliamentary soverignity as “the dominant feature of our political insitutions” . This inital account of parliamentray soverginity involved two fundamental components, fistly :that the Queen-in-Parliament the “right to make or unmake any law whatever” and that secondly “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” . However this Diceyian notion though an established principle of our constitution now lies uneasy amongst a myriad of contemporary challenges such as our membership of the European Union, the Human Rights Act and a spread of law making authority known as ‘Devolution’. In this essay I shall set out to assess the impact of each of these challenges upon the immutability of the traditional concept of parliamentary sovereignty in the British constitution.
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
Pier Luigi Petrillo, Democracies under Pressures. Lobbies and Parliaments in a comparative public law, Giuffrè 2011
This essay addresses the criticism firstly by clarifying the concept of democratic legitimacy and democratic deficit. It also introduces pertinent theories with a focus on the constructive and ideological complexity of the EU. Then it explains the contextual and normative relation between the EU and democracy from its history and some of the major treaties. The essay continues to the debates between advocates and critics of the EU’s democratic legitimacy, yet with a focus on the latter, further dealing with two main dimensions of institutional flaws affecting the legislative process and the insignificance of European citizens to the EU regime. After remarking conventional and possible measures to alleviate the deficiency, it draws a conclusion that the de...
However, we can see plenty of examples of how Parliamentary supremacy is restricted. Take for example the case of Factatane (1990) In which we see how European law, has a huge impact on the sovereignty of Parliament. In this case we see Spanish fishing companies registering boats in the UK in order to receive some of the British Fishing quota. According to EU law this is perfectly fine, however it contradicts Parliaments Merchant fishing act (1988)
The RP helps to keep our powers separated which avoiding the judicial tyranny. After the formation of the two houses of parliament, which called the legislature, the creation of our statutes prevail to the RP. In the case of De Kayser, RP and statute found to co-exist and statute prevails, for the reason that the representatives in the House of Commons are elected from the public in order to create statute to help the development of the country. Moreover, the constitutional conventions are also part of our unwritten constitution and have conflict to the royal prerogative. Some of the RP powers are included to the conventions such as the automatic granting of royal assent, which the Queen should sign after the convention. Finally, the fire brigades union case mentioned that the executive cannot exercise the prerogative in a way which would derogate from the due fulfilment of statutory duty. The data indicates that the current prime minister, has power to overrule the UK’s parliament recent vote of a military intervention in Syria by using the RP which bypass any common decision of acts of war. Generally, powers such as the parliamentary immunity and prerogative powers, destroy the equality and justice of the society, by giving permission, to avoid the soft process of the legitimate society and finally breaking the rule of law. Supporting this argument, a member of parliament, Jack Straw strongly
On one hand, political constitutionalists argue that parliamentary sovereignty is the underlying principle in the British constitution as power and law making are bo...
The EU Charter of Fundamental Rights is a document which brings together all of the Fundamental Human Rights together in one, single document. Before the inception of EU Charter of Fundamental Rights, the member states of the European Union had many conflicting opinions on what exactly a human right entailed, therefore the need for a single, codified document outlaying the basic Fundamental Human Rights was great. The Charter was issued in 2000 and at this time, according to Jesse Norman, The Parliamentary Undersecretary of State for Industry and Energy, ‘The charter was then described as a ‘solemn proclamation’ and was designed to strengthen the EU’S political legitimacy, containing rights and freedoms as well as strengthening the rights of
Hix, S. 2011. The EU as a new political system. In: Caramani, D. eds. 2011.Comparative Politics. Oxford: Oxford University Press.
Rackley, E (2010). In Conversation with Lord Justice Etherton: Revisiting the Case for a More Diverse Judiciary. Public Law
In his comparative study of the constitutional law, Ridley advanced that the United Kingdom, in fact, does not have a constitution. He mentioned the lack of distinction between the ‘constitutional law’ and ‘ordinary law’, as the formal can be easily changed as, and even repealed by, the latter. This is due to the fact that the British constitution distinguishes itself from other nation with an absence of a special legal mechanism to allow amendments in the constitutions; instead, constitutional rules in the United Kingdom are subsequently replaced or modified when an ordinary Act of Parliament is passed. This reflects the decisive role of parliament in the establishment and development of constitution in the United Kingdom. The legal doctrine of parliamentary sovereignty is, nonetheless, criticized by Ridley, as he believes the constitution should be prior to, “outside and above” the system of government, given that the power of government should be distributed by constitution. Adopting a different approach, Anthony King, by placing less emphasis on the prior existence of constitution, argued that in the context of British constitution, the government is the
The rule of law is held supreme in the United Kingdom. In order to reinforce the rule of law, the House of Commons was deemed to be the supreme legislative body in order to uphold the rule of law. The law formulated by the parliament is known as the statutory law. The process by which statutory law is created is divided in to two procedural subdivisions, the pre-parliamentary procedure, and the parliamentary procedure . While it may appear that the pre-parliamentary procedure and the parliamentary procedure are separate and unrelated procedural courses, they are not. Both procedures compliment each other, in that with each stage a definite part of an act’s life is complete.