Challenges Orthodox Parliamentary Sovereignty

Parliamentary sovereignty is deeply embedded in the constitutional law of England, having also been described as the “bedrock of the British Constitution”. In the absence of a written constitution, the parliamentary sovereignty may be no more than a belief or a hypothesis, which may be changed or altered. This was noted by Lord Bridge in Factortame, wherein he had observed that the doctrine of parliamentary sovereignty can be altered by the parliament itself. This essay discusses how laws made by the parliament in recent times have led to a challenge to the traditional and orthodox norms of parliamentary sovereignty. The principal challenge to the orthodox reading of parliamentary sovereignty has come from the laws made by the parliament to harmonise the English law with the European Union (EU) law and the notion that the EU law is supreme.

In the orthodox sense, parliamentary sovereignty means that the parliament is supreme, which involves three concepts. First, the parliament is unrestricted in its legislative powers, meaning that it can legislate on any matter; second, that predecessor parliament cannot bind the successor, meaning that previous laws made by the parliament can bind the successor, nor can the present parliament bind its successor; third, that the laws of the parliament cannot be questioned, even in the courts through judicial review. Considering these three elements of the doctrine of parliamentary sovereignty in its orthodox sense, it may be surmised that the doctrine posits the law made by the parliament to be supreme law and outside the scope of judicial review.

Thus, the doctrine of parliamentary sovereignty in the orthodox sense means that the parliament can legislate on any matter, and once it does, its law is supreme law of the land and there is no question of judicial review on such law. Parliamentary sovereignty is also described as meaning that the parliament has no legislative superior in the United Kingdom, and the courts have no power to invalidate, disregard or supersede a duly enacted statute. However, parliament itself has provided a dilution to these principles by enacting laws that challenge parliamentary supremacy. An example can be given of the European Communities Act 1972, Section 2(1) of which provides the basis for questioning parliamentary law on the basis of its contrary provisions with the EU law. This is as per the ‘Directly effective EU law’ principle, which means that the laws made by the EU are to be given direct effect by the courts, providing a precedence of the EU law over the English parliamentary law. The notion that some recent laws made by the parliament have challenged the orthodox conception of parliamentary sovereignty is made out in academic literature, as well as in some judicial decisions. For instance, in R (Factortame Ltd), the House of Lords suspended a domestic legislation for it being contrary to EU law and referred the matter to the European Court of Justice. Similar judgment was given in R v Secretary of State for Employment. It is the parliament which has made this possible by enacting Section 2(1) in the European Communities Act 1972. Both the judgments of the House of Lords in Factortame and R v Secretary of State for Employment, show the manner in which traditional parliamentary sovereignty is eroded with courts being allowed to suspend domestic legislation in case it conflicts with the directly effective EU law.

Another example can be seen in the Human Rights Act 1998, Section 4(2) of which allows courts to make declarations of incompatibility between parliamentary law and the rights provided in the European Convention of Human Rights (ECHR). Accordingly, in A v Secretary of the State, the House of Lords held incompatible a parliamentary legislation to the extent that it conflicted with the EU human rights law. Similarly, the House of Lords chose to interpret ECHR law as overriding the parliamentary law for making a declaration of incompatibility in Attorney General’s Reference. These cases show how the parliament has allowed the judiciary to interpret laws by giving precedence to the EU law. Under the orthodox reading of the doctrine of parliamentary sovereignty, such an approach is not possible as the law made by the parliament would be supreme and not open to question. Therefore, there is a definite shift in the parliamentary sovereignty in the way parliamentary law is interpreted after the passage of certain laws that allow powers to judiciary to consider the interpretation of laws in light of EU law, which go against the traditional precepts of parliamentary sovereignty.

The cases discussed above show that judicial review, which at one time was considered to be supplemental to parliamentary sovereignty, is allowed to review the parliamentary law in light of the EU law. This is due to the legislations like Human Rights Act 1998 and the European Communities Act 1972, which have broadened the dimensions of judicial review. The Factortame judgment in particular may be considered to be an important challenge to the orthodox reading of parliamentary sovereignty. However, it has been argued that the decision is actually in keeping with the orthodox reading of parliamentary sovereignty as the court applied the parliamentary intention conveyed in Section 2(4) of the European Communities Act 1972. In other words, when deciding Factortame, it is the English law that the court was enforcing. The same argument cannot however be extended to decisions like A v Secretary of the State, where the parliamentary law under which the court declared incompatibility between the English and the EU law was made prior to the impugned law as the Human Rights Act preceded the impugned Anti-Terrorism, Crime and Security Act 2001. To conclude, it may be stated that traditional and orthodox notion of parliamentary sovereignty is challenged by the parliamentary laws that allow greater judicial review powers to the courts, as seen in the two examples provided in this essay.

Table of Cases

• A & Others v. Secretary of the State for the Home Department [2004] UKHL 43. Attorney General’s Reference (No. 4 of 2002) [2004] UKHL 56. Jackson v Attorney General [2006] 1 AC 262 R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70
• R v Secretary of State for Employment, ex p Equal Opportunities Commission (1995) 1 AC 1. Wilson v First County Trust Ltd (No 2), [2003] 3 WLR 568

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