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To What Extent Is It True to Say That Parliament Is No Longer Supreme?

1715 words (7 pages) Essay in Politics

08/02/20 Politics Reference this

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Introduction

The principle of the supremacy and sovereignty of parliament as an institution in the United Kingdom constitution refers to the acknowledgement of parliament as supreme and legal authority of the land (UK Parliament, 2019). As such, parliament has the absolute power to formulate, enact, and terminate any given law within the United Kingdom. However, the supremacy of the parliament as a critical institution in the United Kingdom has deteriorated over the recent past due to several factors that include the country’s status as a member of European Union, the enactment of the Human Rights Act in 2004 as well as devolved parliamentary units in Wales and Scotland. Some of the reasons why parliament is no longer supreme in the United Kingdom include the following.

The United Kingdom parliament is responsible for upholding the rule of law. The principles of the correct application of law enshrined in Britain’s codified, unwritten constitution include accessibility to information on the law, non-discretion by judges, the principles of exercise of power, human rights and fair trial among others (Harris and McNamara, 2016). The application of the rule of law, as stated in the constitution helps in the preservation of the sovereignty and supremacy of the parliament. The rule of law is mostly utilised by the parliament to scrutinise the executive role in various foreign affairs matters as well as internal government affairs. However, the judiciary also plays a part in the validation of the application of the rule of law, hence checking back on the supremacy of the parliament (Harris and McNamara, 2016).

The enactment of the Human Rights Act in 2004 introduced the concept of the Declaration of Incompatibility (Davis and Mead, 2014). The idea of Declaration of Incompatibility provided for an amendment where higher courts such as High Courts, Courts of Appeal, and the Supreme Court could overturn any given act of parliament. The principle of Declaration of Incompatibility hardly interferes with the enforcement of the law, its mode of operation, and its validity (Davis and Mead, 2014). There are also no significant changes in the clauses of the law. However, the court could provide guidance and clarity to parliament over the validity of the act of parliament for the realignment of the act to the law to the principle tenets of the law. Alternatively, the courts could overturn such acts or provide suggestions to parliament, which are to be included before the act of parliament is fully enacted (Davis and Mead, 2014).

A case study is the case of Bellinger v Bellinger, which resulted in the Matrimonial Act of 1973 being deemed as going against Articles 8 and 12, due to its lack of recognition to gender reassignment (publications.parliament.uk, 2019). The House of Lords interpreted that the gender law had no provisions for transgender individuals, by invoking the Human Rights Act, section 3, to provide further guidance on marriage (publications.parliament.uk, 2019). Based on decisions and advisement of the Europe based Court of Human Rights, there was the initiation of the Gender Recognition Act, 2004 (GRA), where individuals who changed their gender could be legally acknowledged (publications.parliament.uk, 2019). The GRA requires that the said individuals should have at least lived as their preferred gender for more than two years, certified medical supervision in cases of gender dysphoria and are prepared to remain as their preferred gender for life. The act was enforced in 2005. This is an example of how parliament supremacy has been eroded.

The status of Britain as a member of the European Union has affected the supremacy of parliament. This is as a result of the adoption of the European Convention of Human Rights Charter, to which the United Kingdom is a signatory to (Davis, 2010). The convention was ratified in 1950 and enacted in the United Kingdom in 1951, with the United Kingdom being the first country to do so. The need to have a domestic law on human rights led to the incorporation of the European Convention of Human Rights into the domestic law on human rights, which was fully enacted in 2000. As a result, European Law could be applied domestically (Davis, 2010). This undermines the role of parliament in applying locally formulated laws. The application of European human rights law led to the resolution that all legislation should be compatible with Convention of Human rights of the European Union (publications.parliament.uk, 2019).

The dialogue model of human rights application in the United Kingdom was proposed to find equilibrium between parliamentary supremacy and judicial supremacy. This in itself is an indication that parliament is no longer supreme. Dialogue model has three sub-models, namely: strong form, status quo, and weak form model. Each has different options of collaboration between courts and parliament. Under the Human Rights Act, the judiciary is granted the power to overturn decisions of parliament if they contradict the statutory laws of the United Kingdom. This is referred to as the strong model (Mead, 2019). The judiciary offers suggestions on how best to fit the laws debated in parliament to the demands of the bill of rights. The dialogue model allows for deliberations between parliament and the judiciary regarding contentious issues, eliminating the prospects of initiating legal proceedings to alter the arising problems. This is referred to as the weak form model. The provisions of the Human Rights Act section 3 further changes the status quo on the supremacy of the legislature. Also, section 4 of the Human Rights Act allows judiciary officials to demand oral hearings regarding matters deliberated in parliament on the Human Right Act. Referred to as the status quo model, courts assume a withdrawn role in the implementation of the principles of common law statutes in the interpretation of the law (Mead, 2019).

The effects of Britain’s exit from the European Union also affect the supremacy of parliament in the United Kingdom. Often referred to as Brexit, the provisions of the terms of exit show that the European Union law is supreme to the National law. This is contained in the European Union (Withdrawal Agreement) bill (Hogarth, 2018). As a result, European Union law can be used by individuals and private parties in domestic courts, bypassing domestic law in the process. If differences arise between European law and domestic United Kingdom law, European law is considered before the domestic law (Hogarth, 2018). Parliamentary legislation should also be in line with the European Union law or risk being invalidated and lacking any meaningful form of application (Hogarth, 2018). Brexit has affected the supremacy of parliament. This is because acts formulated in parliament are no longer binding to future parliaments, thus affecting the continuity of domestic United Kingdom law. Also, parliament is unable to enact laws that contravene European Union law. The European Union law also grants special status to courts, further undermining the supremacy of parliament. However, UK courts would also be affected as they would have new terms of service in working relationships with Europe based Court of Justice. If parliament seeks to repeal the law, the problem of procedural complexities emerges, since repealing the law would require an absolute majority in parliament during voting, a referendum or an express repeal (Hogarth, 2018).

Furthermore, in 1998 Parliament lost a huge amount of its sovereignty by signing three major acts. These acts included: The Scotland Act, The Northern Ireland Act and the Government of Wales Act 1998. By doing this, Parliament were agreeing to create three separate Parliaments within each country (Scotland, Northern Ireland and Wales). Additionally, Parliament also had to surrender some their powers, for example creating “certain important laws on health and education” (Allbon et al., 2018), which suggests that Parliament have less impact in Scotland, Northern Ireland and Wales. By passing these three crucial acts it made Parliament less important in the respective countries when it comes to law making.

Conclusion

In conclusion, the supremacy of the parliament in the United Kingdom has been eroded in the recent past. The United Kingdom’s presence in the European Union as a member meant that the adoption of the European Convention of Human Rights took precedence over the domestic law. The integration of the European human rights law into the domestic law further complicated the supremacy equation for the parliament. The Declaration of Incompatibility in section 4 of the Human Rights Act allowed the judiciary to cut back on the supremacy of the parliament in terms of overturning previous acts of parliament. The dialogue model came with a form of power-sharing mechanism which was exercised by both the parliament and judiciary. The various models involved in the dialogue model provide parliament with options on how best to work with the courts. The British exit from the European Union meant that the country was bound to terms of withdrawal which were to be adhered to. While the parliament remains supreme over other government branches, its supremacy cannot be compared to the previous years.


References

  • Allbon, E., Kaur Dua, S., Elliott, C. and Quinn, F. 2018. Elliott and Quinnʹs English Legal System. Pearson Education, pp. 3-4.
  • Davis, F., 2010. The Human Rights Act and juridification: saving democracy from law. Politics, 30(2), pp. 91-97.
  • Davis, F., and Mead, D., 2014. Declarations of incompatibility, dialogue, and the criminal law. Common Law World Review, 43(1), pp. 62-84.
  • Harris, S., and McNamara, L., 2016. The rule of law in parliament: a review of sessions 2013-14 and 2014-15. Bingham Centre for the Rule of Law, pp. 1-34.
  • Hogarth, R., 2018. Legislating Brexit: the withdrawal agreement bill and parliamentary sovereignty. Institute for Government, pp. 1-14.
  • Mead, D., 2019. Talking about dialogue. [Online] Available at: https://ukconstitutionallaw.org/2012/09/15/david-mead-talking-about-dialogue/ [Accessed 28 May, 2019].
  • Publications.parliament.uk., 2019. Joint committee on human rights – twenty-third report. [Online] Available at: https://publications.parliament.uk/pa/jt200506/jtselect/jtrights/239/23909.htm [Accessed 28 May, 2019].
  • UK Parliament, 2019. Parliament’s authority. [Online] Available at: https://www.parliament.uk/about/how/role/sovereignty/ [Accessed 28 May, 2019].
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