Parliamentary sovereignty has existed in the UK law ever since the 17th century. It has the power to make or evoke any law within the UK. This essay addresses whether the parliamentary sovereignty within the UK has been rendered obsolete by the EU law and the recognition of the human rights in 1998. It will be argued that parliamentary sovereignty is still a relevant doctrine within the UK parliament as the referendum concerning UK’s membership can impact the near future and bring about change, were the parliamentary sovereignty will be the primary way which decides on the laws in the UK.
The European Communities Act 1972 has been enacted by the parliament and it’s sought to bring a voluntary end to parliamentary sovereignty or at least render it as secondary. This has made the EU law a definitive supremacy as the parliament can’t make any laws that are in way of the current EU law. This is shown in the case of Costa , where the European Court of Justice shows supremacy over the member states. On the other hand the Factortame i case shows that the parliament still has control over its actions by being able to treat the law as irrelevant and change it when it interferes with the EU law.
There are cases however, when the parliamentary sovereignty is supreme. This is under the Humans Rights Act, the ECHR does not have to be followed by the British courts. This is proved by the case of Horncastle where the ECHR judgments have been dismissed and instead the British court judgement was used instead. It has been judged by the court that it is not bound by the ECHR and section 2 of the HRA said the cases should be “taken under account” and therefore shows that under rare circumstances the judgments didn’t need to be followed.
This shows that the HRA can be used to enable British judgement overcome the one used by the judges in Strasbourg and therefore makes the parliamentary sovereignty a relevant doctrine in the UK. Parliamentary sovereignty is still important as it has to implement new laws created by the EU and therefore it’s still very relevant even though EU and the HRA are the main sources to follow. With a referendum about the EU’s membership closing in, it possible that the parliamentary sovereignty will have more power in terms of the laws it can enact when it’s separated from the EU.
Essentially Dicey’s famous line says that the parliament “has the right to make and unmake any law whatever” and so it could overturn certain laws in order to achieve that. One way in which parliamentary sovereignty is shown, is through devolution. The Scotland Act, Government of Wales Act and Northern Ireland Act 1998 are acts that might take much of its centralised power away but still shows that sovereignty remained. Humans Rights Act 1998 is another supremacy that rules over the parliamentary sovereignty.
This is because the UK law has to be compatible with the HRA. This essentially means that an Act of Parliament can’t breach these rights which would mean that the legislation would have to be changed. However HRA retains the Parliamentary sovereignty by allowing the parliament to change or amend the law to suit the rest. The introduction of the HRA was a shift in powers that moved power from legislature and gave it to the judges. Cases can now be heard in the UK courts rather than having them go to Strasbourg.
The creation of the HRA also restricted the legislative power of the UK. This is because under section 2, judiciaries have to take into account what the Strasbourg judges are saying. However like mentioned before there are times where they don’t have to be followed (R v Horncastle). Parliamentary sovereignty has been mentioned as a relic, something out of the past and essentially it’s turning out to be the truth, adding all the statements and examples above show that much of that power was distributed to the judiciaries, the European Union and guidance of the HRA.
The real question is whether it still exists. Given that the European Communities Act takes of the current sovereignty it is something that has to be given up in order to be able to become part of the EU supremacy. But with the continual crisis of many of its members, it’s questionable if it’s the right place to stay. On the other hand there are still areas that the parliaments does have control over, these are criminal, environmental and matters related to health plus many more.
In conclusion parliamentary sovereignty has seen loss of control since its founding in the 17th century. The paragraphs above amass to show how little of it has left comparing it to its formal glory. EU’s membership as well as the HRA has become more significant and sovereign. However parliamentary sovereignty still remains a strong legislative power in many key areas around UK and so makes me believe that it isn’t a relic of the past.