Parliamentary Sovereignty In The UK

Parliamentary sovereignty and the rule of law are both concepts that are key to shaping the British constitution, however there is ambiguity as to which concept is the heart of the UK’s constitutional arrangement in the recent years.

A secondary way in which parliamentary sovereignty in the UK can be seen to be moving is though the introduction of devolution which is challenging the UK parliament’s sovereignty. The UK is a unitary state, so only one body can in theory

For many years it has been argued that parliamentary sovereignty has, and still is, being eroded. As said by AV Dicey, the word ‘sovereignty’ is used to describe the idea of “the power of law making unrestricted by any legal limit”. Parliamentary sovereignty is a principle of the UK constitution, stating that Parliament is the supreme legal authority in the UK, able to create and remove any law. This power over-rules courts and all other jurisdiction. It also cannot be entrenched; this is where all laws passed by the party in government can be changed by future parliaments. In recent years sovereignty of parliament has been a

It is also important to consider the effect that the principle of subsidiarity can have on the central European Parliament, as it is required to only carry out “those tasks which cannot be performed effectivity at a more immediate or local level” . This importance of decisions being taken as closely as possible to the citizen, can be monitored through constant checks being made to verify that the higher EU level is legitimately required. After members of the European Parliament were granted the power to approve or reject legislation in 1979 , it was then established in Article 5 of the Treaty of Lisbon that member states must also be given the ability to repeal an adoptive legislative act. This is particularly regarding one of shared areas, to certify “the efficiency and democratic legitimacy of the union and to improve the coherence of its action” . There is also much concern that unless EU voters can “become more credible and legitimate in the eyes of the voter” , particular areas of the Union may begin to tangle.

This essay will look at the judgments given in the Miller case with regards to Article 50, and the royal prerogative. Prior to Gina Miller’s litigation, the Government wanted to use prerogative powers to leave the EU without Parliament. The Government Ministers claimed that because it was foreign policy, it fell within the Government’s jurisdiction. The decision made in The Supreme Court on 24th January 2017 was that Parliament should be involved in withdrawal decisions. Both the majority judgment and the dissenting judgment will be discussed and evaluated.

The supremacy of European Union is not the only development that has undermined the UK supremacy of parliamentary sovereignty. There are recent developments of Human Right Law and the devolution of Scottish and Wales Assembly which has greatly weaken the traditional notion of parliament being supreme in UK. Seemingly, the supremacy of European Union is the pillar of all members of the union

This paper will assess the claim that supremacy of EU law is still an evolving and debatable concept. To do this, I have divided this paper into four sections. The first section will discuss the establishment of supremacy in EU law through ECJ case law. The second section will explore the vibrant debate surrounding constitutional pluralism that has arisen since the early 1990s. The third section will examine the debate and impact of the codification of primacy in the early 2000s. The fourth section will examine the extent to which the principle of sovereignty has been accepted in three EU Member States, namely, the United Kingdom, Germany, and Poland.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

This essay will examine and evaluate the principle of supremacy of European Union (‘EU’) law since its ‘inception in the two fundamental authorities’ of Van Gend en Loos v Nederlandse Administratie and Costa v ENEL analyzing how these cases established ‘an autonomous legal order which limits national sovereignty’ . Using Professor Weiler’s prism of ‘bi-dimensionalism’ this essay will examine supremacy through two viewpoints, how the Court of Justice of the European Union (‘CJEU’) has looked at the supremacy of EU law and how the national courts have viewed the supremacy. Whilst the EU may have one view, the second part of bi-dimensionalism is how the Member States have reviewed and interpreted the EU decisions reconciling them with

Gaining an insight on How and Why European Law (EU and ECHR) has an impact on the UK can be challenging. Before overcoming this obstacle it is advised to acquire basic knowledge on the founding treaties and those currently in force. The sources of law and their effect will analyse, whether the UK should remain a part of the European Union or not.

The biggest challenge for parliamentary sovereignty clearly comes from the implications of the 1972 EC Act. Section 2 of the EC Act obliges the UK courts to give effect to Union law. That does not mean that the British courts have the power to strike down legislation but they have the power to set aside British law in a particular case and apply Union law instead. Tensions arose in the past in a number of cases in which Westminster legislated against Union law. Good examples of it are the Factortame cases in which Parliament finally had to accept the supremacy of EU (then EC) law. However, the question of whether the traditional rule that no parliament can bind its successors is still valid was not expressly answered

the United Kingdom unlike most other countries does not have a codified constitution to restrict the powers of the Parliament, the main check on power of the British Parliament is the sovereignty of the future parliaments. The European Union has been growing since its establishment and its growth has been considered a threat to the Parliamentary Sovereignty of the UK, since their joining of the EU in 1973. This essay will showcase the treaties, institutions, cases, and acts that have eroded the sovereignty of the UK Parliament and will conclude that the development of the EU will only further reduce the power of Parliamentary Sovereignty as long as the United Kingdom stays a member of the EU.

British Parliament dates back to 1265. England owned its own personal parliament until Acts of Union with Scotland, Ireland and whales although not fully successful due to a large percent of Ireland withdrawing in 1922. UK parliament is known to be the ‘heart of UK Government’ (Leach, Coxall, and Robins, 2011) and is made up of three main components: The monarchy, The House Of Commons and The House Of Lords. It has multiple key features which contribute to the successful workings of Government.

The ‘Protocol on the Application of the Principles of Subsidiarity and Proportionality’ allows national parliaments (both chambers in bicameral systems) to play a more direct role on the EU legislative process through the ‘Early Warning Mechanism’ . Within eight weeks of receiving a proposed legislation, any national parliament has the right to submit a ‘reasoned opinion’ explaining why it does not comply with the principle of subsidiarity. If at least one-third of all votes allocated to the national parliaments share similar sentiments, the draft must be reviewed (yellow card procedure). Theoretically, the system displays potential. However, reality has shown that the yellow card procedure has only been raised twice so far and there is no obligation for the draft to actually be changed. National parliaments have insufficient time to respond to the EU proposals in the first place , affecting the quality of review national parliaments can provide. Furthermore, the issue of creeping competences is one to be considered due to the European Court of Justice’s limited and ‘minimalist’ judicial monitoring as seen in the Working Time Directive Case . Its narrow view of subsidiarity has led to a more limited practice of the principle of subsidiarity in the EU and possibly contributing to its democratic deficit.

Bibliography:Books:•Craig, Paul P.; De Búrca, Gráinne: EU law: text, cases, and materials, Oxford Univ. Press , 2007•Hartley, Trevor C.: European Union law in a global context: text, cases and materials, Cambridge Univ. Press, 2005•Patrizia De Pasquale, Il principio di sussidiarietà nella Comunità Europea, 2000, Editoriale Scientifica, Napoli, 2000•Centre for Economic Policy Research, La distribuzione dei poteri nell'Unione Europea, Società Editrice il Mulino, Bologna, 1995•George A. Bermann, Su