Discuss About The Devolution United Kingdom Oxford University.
The doctrine of the supremacy of Parliament is one of the basic principles of UK’s Constitution. There are many academics who believe this principle to be the most important one. The doctrine of parliamentary supremacy also helps in explaining why you get is not have a written constitution. If the argument is sovereign, then the Constitution and the law is what that will be enacted by the Parliament. The notion of parliamentary sovereignty was mentioned by the attendees during the 19th century. However, in the history of postwar Europe, particularly recent history, the doctrine of parliamentary sovereignty has faced a lot of pressure due to the constitutional reforms that were introduced by the liberal governments during the 1970s and at the end of the last century. One of the major constitutional implications included the entry of the UK into the European Community. In the present essay, the effect of the membership of the UK on the sovereignty of the Parliament has been evaluated.
Parliamentary Supremacy: The term sovereignty related to exercising supreme and apex power. Parliamentary supremacy is an inherent concept of the United Kingdom Constitution. By virtue of the concept of Parliamentary Sovereignty, the Parliament becomes the most supreme authority in the United Kingdom. The Parliament has the supreme authority to make and end laws. The authority of the parliament overrules that of courts and the legislations passed by the parliament cannot be ended by any court. The concept of sovereignty of the Parliament has always caught the attention of debates after the enactment of democracy.
Arguments for and against the sovereignty of Parliament: in understanding the implications of the sovereignty, it is important to know the limitations that are posed on the powers of the Parliament. There are some views that buttress the fact that Parliament does not have supreme authority and that can be seen in the legislative powers. The Parliament has put down the method of enacting a law and how the Parliament shall go about empowering the legislation. The parliament has the power to lay down the manner in which an act shall be repealed, which is not in line with the concept of implied repeal which will cast a liability on the successors thereby limiting the sovereign powers of the successors. This view was also put forward by Lord Dicey wherein he said that the Parliament is empowered to make laws binding everybody except the successors. This argument was further enlarged in the light of the A-G Trethowan Harris v The Minister of the Interior and Bribery Commissioner v Ranasinghe which said that the legislative bodies cannot be said to be enjoying supreme powers and that helps in understanding the difference between a truly sovereign body and a partly legislative body. In the case of Ranasinghe, it was held by Geoffrey Marshall that in cases of both sovereign and non sovereign legislatures, both can be made subject to repeals and hence theor sovereignty again becomes a matter of debate.
The basic meaning of sovereignty, these days is legitimate rule as compared to real authority. In case of democracies, generally the perception of sovereignty is related with people’s rule. Therefore one can talk regarding the sovereignty of the people. Even if the terms that have been discussed above, have been defined in such a way that they can be understood easily, a problem may arise when an institution is termed as sovereignty instead of a person or people. The reason is that an institution like the Parliament requires to be defined exactly. It needs to specify the rules of working, the members nominated to the institution and deciding what is to be considered as the right method or the valid performance. This vision has received support from many authors who believe that the Parliament can be sovereign only when it acts in a particular way that has been provided by the rules.
The “new view” on sovereignty as pointed out by Pro. Heuston’s gives power to the courts to examine the legitimacy of the powers of the court and the validity of the law but the power does not extend to the scrutiny of the legislative’s powers. The Privy Council in its rulings have several times talked about upholding the powers conferred by the UK parliament thereby enabling the legislatures to fall under the powers of the Parliament. This problem is exclusive in case of the UK Parliament and does not extend to the Westminster. There might be a little problem in the legislative superiority after the entry into the European Union. Although, there are many who are still of the strong opinion that the sovereignty of Parliament is the basic tenet of the Constitution but there are many academics according to whom the British legal system is founded on more than one fundamental principle therefore it is difficult to believe them. For example, it has been claimed by some authors that there are several on and sources of legal power in the English legal system and neither Hart’s rule of recognition, nor Kelsen’s Grundnorm can be treated as the universal terms of legal systems. There is also another important feature of the British consulate and that is the rule of law. This principle comprises of two sovereignties. The first is the sovereignty of the British Parliament. The second is the sovereignty of the courts. But the former is related with lawmaking and the latter this related with the interpretation and application of law. As a result both the Parliament and the courts are required to coexist. But due to this reason, the principle of parliamentary sovereignty becomes much more complex. However, still it is important to mention at this point according to another famous constitutional lawyer, Sir Ivor Jenings, he had agreed the Dicey that the Parliament is capable of unity. The laws related with any subject and the view that the Parliament is superior to the jurisdiction of the courts. But in this context, it has been claimed by Jennings that supremacy of Parliament can be present only in theory
In the light of the new theory, the Parliament will be required to hold a referendum before enacting legislation. The Parliament has therefore “redefined” its scope by including the Queen, Parliament, the Commons and the Lords. In the light of this theory, it can be said that the supremacy and exclusivity that the parliament exercised seems to be getting diluted.
The government of UK has the power to enter international treaties and the state is bound by such treaties. On the other hand, according to the doctrine of the sovereignty of Parliament, no alterations can be made in the rights enjoyed by the British citizens and other persons who are in the UK. And this cannot be done without updating the permission from the Parliament. Therefore these rights can be the only through the Acts of Parliament. Due to this season, if UK does not want to be involved in violating its international responsibilities, it is necessary that the Parliament incorporated the international law provision into the domestic law of UK by introducing Acts. For example, the Parliament introduced the European Communities Act in 1972. This legislation incorporated the European Community law into the legal system of the UK. By doing so, the Parliament incorporated to revolutionary principles. First was the principle of direct effect and the other was the principle of supremacy. The meaning of the first principle is that the Community law can confer rights and duties directly on the individuals and the national courts are required to interpret all the legislation. In such a way that it complies with the Community law. This doctrine was firmly established as a result of the decision given by the European court of justice in Van Gend en Loos case, 196. In this case it was held that for a Treaty to confer individual rights it has to follow a few guidelines, like: the rights will not only be applicable to member States, but also to individuals, the details of the provisions need to be clear and unqualified and unqualified. The rights shall be absolute and shall not be subject to any discretion of the Member States.
Treaties and Regulations The European Court of Justice and the House of Lords examined the treaty provisions in the case of Henn & Derby v DPP, wherein the defendant’s were given the power ro use the direct effect of article 28 in their defence. Also in the case of Leonesio v Italian Ministry of Agriculture, it was said that treaties and regulations had the power to create community rights that had the power of protecting individual rights. These rights are protected under Article 288 of the TFEU. By understanding the wordings of the treaties and regulations, it can be said that the essence of these regulations are that it does not need the intervention of Member States and cold be used by individuals as a protective right. Even if the ECA, 1972 was voluntarily enacted by the Parliament, this resulted in causing strain for the principle of the sovereignty of Parliament. Since that time, the British courts got the authority to review the acts of Parliament on the basis of being incompatible with the EU law. It has also been said in this regard that the doctrine of the sovereignty of Parliament also means that the Parliament of the day is not empowered to enact the law that cannot be changed by the future parliaments. After UK joined the European Union, the newly elected parliaments had to follow the provisions of the law and therefore they have to follow all such provisions.
As mentioned above, the rights of an individual in UK can be either only through the Acts of Parliament. Consequently, the Parliament is required to pass legislation that included the provisions of Lisbon Treaty and the UK law and these provisions came into force in the UK. Keeping in view the doctrine of sovereignty of Parliament, they were particularly two clauses of this legislation that need to be analyzed the clauses 5 and 6 of this Act. New requirements were imposed by clause 5 regarding the prior authorization by the Parliament before a treaty is ratified by the government that provides the basic treaties of the EU. But it needs to be noted that it is applicable only in case of amendments that have been made under “ordinary revision procedure”. According to clause 6, parliamentary control is being enforced on the capacity of the government to agree to the amendments that have been made in accordance with “simplified revision procedure” or the passerelles. The term passerelles is generally used in the EU jargon. It describes category of provisions that allow alteration to the arrangements of the treaties without invoking ordinary procedure for their amendment. Therefore, some experts claim that the scope of application of this is the formula has been significantly expanded by the Lisbon Treaty. Regarding television of founding Treaties, the decision-making process in EU Council generally needs the decision to be unanimous. However, in some cases, simplified revision procedure and passerelles allow a shift from unanimity to qualified majority voting. As a result of such, it becomes easier to amend the founding treaties. In this way, and effort has been made by the British legislator to include new provisions in the law seems that allow the move from unanimity to qualified majority voting in EU so that the Parliament can retain its control over the government in such cases.
The direct applicability doctrine says that there is no need for assent from the Member States’ legislature and the EU provision becomes effective from the date of the commencement of the same. The direct effect confers rights on the individuals which become applicable from the date of enforcement and it can be made legally binding on the Member States to uphold those rights.
Another significant issue in this regard is the Charter of Fundamental Rights of the EU and Protocol 7. It mentions the application of data to UK and Poland. Article 6 of the TEU, as amended by Lisbon Treaty makes the charter legally binding. Therefore, not only the European Court of Justice by the national courts is also required to refer to the rights and principles that are mentioned in the charter while they are interpreting legislation. There are several British and Polish politicians were afraid of the fact that the member states were going to be bound by the chartered with some new rights. In case of the UK, it was also consider that it can also endanger the doctrine of the sovereignty of Parliament. Due to this reason, the Protocol 7 arose as opt out from the Charter.
In the case of Macarthy v Smith the domestic legislation in question was the Equal Pay Act 1970 which was amended by the Sex Discrimination Act 1975 which said that men and women who are employed in the same job should be paid equally without any discrimination. This was construed in the light of the European Communities Act 1972 says that the Parliament while passing any legislations fulfils its obligations under the Treaty.
Article 249 which has now come under Article 288 has left no discretion to a Member State to meet their objectives but gives some leeway to the member states in implementing the policy. This principle was found effective in the case of Van Duyn V Home Office, where it was held that directives can be seen to be having direct effect which was held to be enforceable by the European Court of Justice. The Article 48 of the EEC Treaty provides for free movement of workers. The European Court of Justice held that the directives will have direct effect and that rule shall be used keeping in mind the subject matter. The action of the Member States in irrelevant and the legislations can become effective without the intervention of the Member States. In cases of ambiguity in the terms of the directive, they cannot be said to be having direct effect. Unlike the required provision of a directive becoming actionable after the due date has passed, the same rule shall not apply in cases where the provisions are ambiguous.
In the year 1995 Lord Woolf had made the observation that if the Parliament assumes the role of the supreme authority encroaching on the rights of the Courts in implementing rule of law and giving effect to other forms of law, the Courts will have to limit the powers of the Parliament. The rights of limiting and restraining the powers of the Parliament shall then rest on the Courts and they shall do that and uphold the authenticity of the legislature. Therefore, the limits of the Parliament rest with the Courts. In the cases of Jackson v Ag, Lord Steyn upheld the concept of judicial review and said that the courts have to act as a check on the abuse of flagrant powers of the government. This is the reason behind putting a strict clause in preserving the supremacy of the Courts. That is how judicial review is preserved.
In cases when a subordinate legislature has been conferred powers by the Westminster, the question lies with the ultimate powers of the Westminster in revoking that grant of power. In the case of British Coal Corporation v R (1935), the Privy Council held that though theoretically the Westminster’s power was unqualified, S4 could be repealed if a cogent theory is said to exist alongside. The South African Court held that a restriction in that nature put limitations on the legislative powers of the Westminster. The principle was that a freedom which has been conferred once should not be revoked. These provisions and case laws go on to prove that the Parliament enjoys supreme powers and that Parliament is not bound by any legislature. The only impediments to the freedom of the parliament are political and external constrains.
The question that needs to be answered in the backdrop of the topic of sovereignty of the parliament is that with time it can be seen that the supremacy is taking a dent. The judges seem to be having power liberty in the application of statutory interpretation. The conflict between the courts and the Parliament may lead to political tensions. It is very difficult to question the argument regarding the withdrawal from the EU and the free will of the Parliament in deciding if UK should remain within the EU or not. It is also true that in practice, the Parliament is omnipotent and it can do whatever he pleases. However, the question arises if it has ever been omni-potent from this point of view. For example, Sir Jennings had stated that supremacy of Parliament is a legal fiction and the Parliament cannot infect change the course of nature or do all sorts of things. The changes related with the European integration and the processes of globalization that had an impact on the political and constitutional system of UK merely prove the claim made by him.
Reference
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Austin John, 1879, Lectures on Jurisprudence, 4th ed., J. Murray, London
Austin John, 1879, Lectures on Jurisprudence, 4th ed., J. Murray, London
Bagehot Walter, 1867, The English Constitution, Chapman and Hall, London
Bingham of Cornhill, Lord Thomas, 2002, ‘Dicey Revisited’, in Public Law, XLVII(3): 39-57
Bogdanor Vernon, 1997, Power and the People: A Guide to Constitutional Reform, Gollancz, London
Bogdanor Vernon, 1999, Devolution in the United Kingdom, Oxford University Press, Oxford
Bogdanor Vernon, 2009, The New British Constitution, Hart Publishing, Oxford
British Coal Corporation v R (1935)
Carrell Severin, ‘Scottish devolution: what questions will future referendum ask voters?’, in The Guardian, Wednesday November 23rd, 2011
Dicey A.V., 1886, England’s Case against Home Rule, J. Murray, London
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Leyland Peter, 2007, The Constitution of the United Kingdom: A Contextual Analysis, Hart Publishing, London.
Trench Alan, 2004, Has Devolution Made a Difference? : The State of the Nations 2004, Imprint Academic, Exeter
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