Parliamentary Sovereignty Essay

Introduction

Parliamentary sovereignty is the most crucial principle in Westminster’s constitution. As a result, Parliament is given the power to pass and veto any legislation in the UK.^[1] Upon Parliament’s approval in 1972, the European Communities Act of 1972 (ECA) was officially created. It was a voluntary decision to limit Parliament’s power. As a result of legislation like this, major political shifts have taken place both inside and outside the United Kingdom since the 1970s. Since these changes, the United Kingdom has grown less unified by the acts of its multinational state. With more devolved authorities, the United Kingdom has gone from being Europe’s most centralised state to one with more decentralised powers.^[2]

Under EU conditions, traditional Westminster-style government may no longer be in existence. On January 1st, 1973, the UK officially joined the European Economic Community (EEC), which would later become the European Union. UK lawmakers passed the European Community 1972 statute, which lays out the steps we have taken to incorporate EU law into our own (the European Communities Act 1972).^[3] The UK’s majoritarian system risks becoming more polarised if it relies exclusively on precedent. The European Convention on Human Rights was adopted into UK law in 1998 and a UK Supreme Court was established in 2009.

All of these have contributed to expanding the judicial role from one that was previously limited to upholding legislation passed by Parliament. In 2016, a resounding majority of the electorate chose to “leave” the EU in a referendum, and the carefully watched Article 50 discussions and the departure deal signed under Theresa May’s Conservative administration all highlight how unclear the situation remains.^[4] Before, the United Kingdom was unable to accept its membership in Europe but not in the European Union.

Unlike many other democracies^[5], the United Kingdom is headed by an elected prime minister who is responsible for governing through parliament. As a long-standing tradition of parliamentary sovereignty means that, in the absence of a codified constitution, the UK is more than a parliamentary democracy where the executive branch is reliant on legislative backing. A lot of debate has taken place since Britain’s first application to join the European Community was made in 1961 and the European Community Act was passed in 1972. The Brexit campaign argued in favour of the UK’s exit from the European Union because of EU law’s restrictions. According to many pro-EU supporters^[6][7], a break with Brussels is vital to restore both legislative and public order in Europe.

Legislative Sovereignty

Legislative sovereignty^[8] is often discussed with one eye on the past and the other on the present. Legislative sovereignty’s theoretical development and conceptualization are so constrained. In this essay, the concept of legislative sovereignty’s breadth and impact are vital for ongoing advancement in this field. The author needs a more sophisticated view of legislative sovereignty to explain why legislative sovereignty has become idolised. The paper makes use of Kantian, Friedrich Nietzschean, Ludwig von Misesian, and Derridean theories to criticise parliamentary sovereignty in various ways. Because of our preoccupation with out-of-date beliefs, we are unable to develop a sound theory of sovereignty in the current geopolitical and interstate setting.

As a result of Brexit, some believe that the United Kingdom’s traditional constitution has been reaffirmed. Other outcomes may still be possible, even if the traditional constitution is more fragile following Brexit.^[9] A “populist” democracy may be established in the UK that would give the executive branch of the country more authority. All of the concepts in the crisis lexicon allude to a point in time when the inherent contradictions and ambiguities of a situation must be resolved, including tipping points, catastrophic equilibrium, and failure. At all levels of the United Kingdom government, there is an overriding “Anglo-British fantasy” and ambiguity in terms of location. These issues arose as a source of fundamental constitutional instability under Theresa May’s administration. Despite May’s best efforts, a constitutional crisis may yet arise. Aside from that, she was in charge of major constitutional reform, even if it wasn’t a crisis at the time.

Legislative Supremacy

The Sovereignty of Parliament^[10] refers to the British Parliament’s supreme power to enact legislation. Legislation, amendment, and repeal of any law in the country are all possible because of its legal capabilities. English lawyers, according to De Lolme’s opinion, believe that Parliament can do anything but make men and women. When the Septennial Act was passed, extending the duration of the then-existing House of Commons from three to seven years, and so surpassing the term of mandate assigned to those MPs by the British public, this was an obvious example. Essentially, the concept of “parliamentary sovereignty” asserts that only Parliament has the authority to enact, alter, or repeal any piece of legislation in the UK.

English parliamentary sovereignty, according to Dicey^[11], has the following three characteristics: Any legislation can be altered by the legislative branch, regardless of whether it is a fundamental law or not, and no one has the authority to declare an act of parliament invalid, judicial or otherwise. The British parliament is in charge of enacting legislation, supervising the executive branch, and holding it accountable for its actions (including auditing its finances). It is also a symbol for the British people^[12]. Floor talks and deliberations are essential in these situations. It’s also a place where government officials go to get hired. They are a critical link between the public and the executive branches of government.

The UK has “exclusive competence” in areas like the customs union, euro currency policy and common commercial policy for all EU members, not just the UK (Article 3, TFEU). Only the EU has the power to pass laws and other legally binding documents in these fields. As a member of the EU, the UK is entitled to govern itself in these areas, and the EU cannot intervene. Other EU “special competencies” allow the UK and other EU member states to coordinate their economic, social, and employment policies inside the Union.^[13] Article 24 of the Lisbon Treaty sets out the foundation for a united European foreign and security policy (CFSP), which is overseen by the EU’s High Representative for Foreign Affairs and Security Policy.

Limitations on Parliamentary Supremacy

Parliament’s legislative powers are unclear without a fully established constitution. Unlike the United States, Ireland or even the Indian constitution, which establishes distinct methods for amending principles of their constitutions, countries with a more flexible constitution, such as India, are more open to change.^[14] Restrictions on the future parliament’s power to enact laws or the adoption of laws that cannot be altered would be a denial of the parliament’s sovereignty. But this does not mean that the United Kingdom’s laws are entirely taken from them.

UK Parliamentary Sovereignty and Dicey Theory

Lawmakers of a state’s highest legislative body consider themselves to have supreme authority. According to Dicey’s view of legal sovereignty^[15], an individual can be forced to decide his or her own fate if the government deems it necessary. European Union competence definitions are defined by the European Court of Justice, but British EU membership is not. “The strength of free public opinion represented by the Commons functioned as a check on Parliament’s authority in the United Kingdom,” he asserts.

In the late nineteenth century, Dicey described it thusly: “the right to make or unmake any law whatever.” The European Parliament, on the other hand, is not allowed to change EU law. Following Britain’s membership of the EU in 1972, the European Communities Act recognised EU law as superior. EU membership does not mesh well with the legislative heritage of self-determination when future parliaments are likewise constrained by this agreement. This decision could not be overturned by subsequent parliaments, hence the UK must now recognise EU law as supreme, a decision made by the UK parliament in 1990 with the Factortame judgement. Parliamentary sovereignty is threatened by a greater awareness of judicial review. There is no or very little judicial review of legislation since the judiciary is seen as an undemocratic force. These essential liberties, however, have been construed rather differently in the past.

Former ECJ President Skouris^[16] believed that no area was exempt from interference with the market’s four liberties. For example, bottle deposit laws and limits on tobacco advertising hinder the free flow of goods, whereas policies like abortion prohibition impede the free provision of services. Parliamentary sovereignty has received significant attention in the Brexit environment. A significant component of Brexit^[17] that has been missed is that the UK is a common law jurisdiction. Because of the common-law system’s reliance on precedent, Anglo-American legal precedents could be deemed “de facto” principal reservoirs of British law.

Parliamentary sovereignty, often known as “parliamentary supremacy” or “legislative supremacy,” refers to the power provided by the constitution to the legislative branch over the executive and judicial departments. An important foundation for a better understanding of parliamentary sovereignty and its primary characteristics was laid out by Albert Venn Dicey in his Introduction to the Study of the Law of the Constitution (1885).^[18]

Conclusions

Constitutionalized case law and EU objectives have contributed to a politicisation of free movement in Britain. But this common-law legacy of the UK plainly shows that case law is relevant to EU policies as well. As the EU expands, it is probable that European policies may have to adapt to accommodate greater variety.

References

Asthana A, ‘Unit-9 Parliamentary Supremacy and Rule of Law in UK’ <http://www.egyankosh.ac.in/bitstream/123456789/71810/1/Unit-9.pdf> accessed 22 January 2022

De Campos-Rudinsky J, ‘James Bryce and Parliamentary Sovereignty’ [2021] Modern Intellectual History <https://www.cambridge.org/core/journals/modern-intellectual-history/article/james-bryce-and-parliamentary-sovereignty/A9129ED482C3CF7C9BED814E9EB99C77> accessed 22 January 2022

Johnson MR, ‘Legislative Sovereignty: Moving from Jurisprudence towards Metaphysics’ (2020) 11 Jurisprudence 360 <https://www.tandfonline.com/doi/abs/10.1080/20403313.2020.1744990> accessed 22 January 2022

Loughlin M, ‘AV Dicey and the Making of Common Law Constitutionalism’ [2021] Oxford Journal of Legal Studies <https://academic.oup.com/ojls/advance-article-abstract/doi/10.1093/ojls/gqab021/6387558> accessed 22 January 2022

McConalogue J, ‘Making Sense of Sovereignty, Parliamentary Sovereignty and the “Rule of the Recognised Helm”’, The British Constitution Resettled (2020) <https://link.springer.com/chapter/10.1007/978-3-030-25290-8_2> accessed 22 January 2022 , ‘The Impact of EU Membership on UK Government and Parliament’s Sovereignty’, The British Constitution Resettled (Springer International Publishing 2020)

Orakhelashvili A, ‘Parliamentary Sovereignty before and beyond Brexit’ (2021) 15 ICL Journal 435 <https://www.degruyter.com/document/doi/10.1515/icl-2021-0024/html> accessed 22 January 2022

Qvortrup M and Trueblood L, ‘Schmitt, Dicey, and the Power and Limits of Referendums in the United Kingdom’ [2021] Legal Studies 1 <https://www.cambridge.org/core/journals/legal-studies/article/schmitt-dicey-and-the-power-and-limits-of-referendums-in-the-united-kingdom/B62731F03A3D7E834F05502EAA64621F> accessed 22 January 2022

Schmidt SK, ‘No Match Made in Heaven. Parliamentary Sovereignty, EU over-Constitutionalization and Brexit’ (2020) 27 Journal of European Public Policy 779 <https://www.tandfonline.com/doi/abs/10.1080/13501763.2020.1733635> accessed 22 January 2022

White S, ‘Brexit and the Future of the UK Constitution’ [2021] International Political Science Review <https://journals.sagepub.com/doi/abs/10.1177/0192512121995133> accessed 22 January 2022

White SG, ‘The Referendum in the UK’s Constitution: From Parliamentary to Popular Sovereignty?’ [2020] Parliamentary Affairs <https://academic.oup.com/pa/advance-article-abstract/doi/10.1093/pa/gsaa062/6010321> accessed 22 January 2022

Wincott D, Davies G and Wager A, ‘Crisis, What Crisis? Conceptualizing Crisis, UK Pluri-Constitutionalism and Brexit Politics’ (2021) 55 Regional Studies 1528 <https://www.taylorfrancis.com/chapters/edit/10.4324/9781003148944-16/populism-uk-sovereignty-rule-law-brexit-john-mceldowney> accessed 22 January 2022

Wincott D, Murray CRG and Davies G, ‘The Anglo-British Imaginary and the Rebuilding of the UK’s Territorial Constitution after Brexit: Unitary State or Union State?’ [2021] Territory, Politics, Governance <https://www.tandfonline.com/doi/abs/10.1080/21622671.2021.1921613> accessed 22 January 2022

[1] Daniel Wincott, Gregory Davies and Alan Wager, ‘Crisis, What Crisis? Conceptualizing Crisis, UK Pluri-Constitutionalism and Brexit Politics’ (2021) 55 Regional Studies 1528 <https://www.taylorfrancis.com/chapters/edit/10.4324/9781003148944-16/populism-uk-sovereignty-rule-law-brexit-john-mceldowney> accessed 22 January 2022.

[2] Daniel Wincott, CRG Murray and Gregory Davies, ‘The Anglo-British Imaginary and the Rebuilding of the UK’s Territorial Constitution after Brexit: Unitary State or Union State?’ [2021] Territory, Politics, Governance <https://www.tandfonline.com/doi/abs/10.1080/21622671.2021.1921613> accessed 22 January 2022.

[3] Stuart White, ‘Brexit and the Future of the UK Constitution’ [2021] International Political Science Review <https://journals.sagepub.com/doi/abs/10.1177/0192512121995133> accessed 22 January 2022.

[4] Stuart White, ‘Brexit and the Future of the UK Constitution’ [2021] International Political Science Review.

[5] Stuart G White, ‘The Referendum in the UK’s Constitution: From Parliamentary to Popular Sovereignty?’ [2020] Parliamentary Affairs <https://academic.oup.com/pa/advance-article-abstract/doi/10.1093/pa/gsaa062/6010321> accessed 22 January 2022.

[6] Alexander Orakhelashvili, ‘Parliamentary Sovereignty before and beyond Brexit’ (2021) 15 ICL Journal 435 <https://www.degruyter.com/document/doi/10.1515/icl-2021-0024/html> accessed 22 January 2022.

[7] Jim McConalogue, ‘The Impact of EU Membership on UK Government and Parliament’s Sovereignty’, The British Constitution Resettled (Springer International Publishing 2020).

[8] Jim McConalogue, ‘Making Sense of Sovereignty, Parliamentary Sovereignty and the “Rule of the Recognised Helm”’, The British Constitution Resettled (2020) <https://link.springer.com/chapter/10.1007/978-3-030-25290-8_2> accessed 22 January 2022.

[9] Susanne K Schmidt, ‘No Match Made in Heaven. Parliamentary Sovereignty, EU over-Constitutionalization and Brexit’ (2020) 27 Journal of European Public Policy 779 <https://www.tandfonline.com/doi/abs/10.1080/13501763.2020.1733635> accessed 22 January 2022.

[10] Marc R Johnson, ‘Legislative Sovereignty: Moving from Jurisprudence towards Metaphysics’ (2020) 11 Jurisprudence 360 <https://www.tandfonline.com/doi/abs/10.1080/20403313.2020.1744990> accessed 22 January 2022.

[11] Matt Qvortrup and Leah Trueblood, ‘Schmitt, Dicey, and the Power and Limits of Referendums in the United Kingdom’ [2021] Legal Studies 1 <https://www.cambridge.org/core/journals/legal-studies/article/schmitt-dicey-and-the-power-and-limits-of-referendums-in-the-united-kingdom/B62731F03A3D7E834F05502EAA64621F> accessed 22 January 2022.

[12] White, ‘The Referendum in the UK’s Constitution: From Parliamentary to Popular Sovereignty?’ (n 5).

[13] Jordan De Campos-Rudinsky, ‘James Bryce and Parliamentary Sovereignty’ [2021] Modern Intellectual History <https://www.cambridge.org/core/journals/modern-intellectual-history/article/james-bryce-and-parliamentary-sovereignty/A9129ED482C3CF7C9BED814E9EB99C77> accessed 22 January 2022.

[14] A Asthana, ‘Unit-9 Parliamentary Supremacy and Rule of Law in UK’ <http://www.egyankosh.ac.in/bitstream/123456789/71810/1/Unit-9.pdf> accessed 22 January 2022.

[15] Wincott, Davies and Wager (n 1).

[16] Martin Loughlin, ‘AV Dicey and the Making of Common Law Constitutionalism’ [2021] Oxford Journal of Legal Studies <https://academic.oup.com/ojls/advance-article-abstract/doi/10.1093/ojls/gqab021/6387558> accessed 22 January 2022.

[17] Jim McConalogue, ‘The Impact of EU Membership on UK Government and Parliament’s Sovereignty’, The British Constitution Resettled (2020) <https://link.springer.com/chapter/10.1007/978-3-030-25290-8_1> accessed 22 January 2022.

[18] Schmidt (n 9).