Doctrine of Parliamentary Sovereignty

In order to make an appraisal of the accuracy of this statement there are several areas to consider. Almost every day the Times Law Reports publish cases involving British citizens and companies which have been decided by the Court of Justice of the European Communities or the European Court of Human Rights. 1So, despite the efforts of the anti-European lobby, is European Law undermining the UK's doctrine of Parliamentary sovereignty, or does Britain still have any powers left to prevent this happening completely?

Has the time come for Britain to accept that the concept of Parliamentary sovereignty is no longer relevant, and should it just take its place as one of the "United States of Europe? "2 Before considering each of these issues, it is important to explain the meaning of parliamentary sovereignty, and its origins. To understand how Britain reached the position it is in today, it is necessary to take a brief historical look at the formation of the UK constitution. The origins of the modern British constitution began after the 1688 revolution when a group of prominent politicians summoned a "Convention Parliament.

" After appointing the new monarchy they enacted the Bill of Rights 1688, limiting the powers of the Crown against Parliament. 3 Shortly afterwards The Act of Settlement 1701 was formed, which amongst other things, gave judges independence from the Crown. 4 Later, the Treaty of Rome (1957), as amended by The Amsterdam Treaty (1997), and The Treaty on European Union (1992) also known as The Maastricht Treaty, would become the primary source for European Community law. 5 Britain is one of only three countries in the world to have an unwritten constitution.

6 This provides us with advantages over those countries with a written constitution in that our system is flexible, and by introducing to new laws Parliament can modify it as Britain does not have any entrenchment provisions. Although he had his critics, theorist Albert Venn Dicey's (1835-1922) thoughts in Law of the Constitution (8th Edn, 1927) have become the basis for The Doctrine of Parliamentary Sovereignty. 7 "The principle of Parliamentary sovereignty means… that Parliament has, under the English Constitution, the right to make or unmake any law whatever; and …

that no person or body is recognised by the law of England as having a right to override or set side the legislation of Parliament. "8 Academics such as, Sir Frederick Pollock, Latham and Marshall have developed a "new view" as an alternative theory to the traditional view put forward by Dicey. 9 Undoubtedly there has been some judicial support in the Commonwealth for their notions, but there are doubts as to whether the limitations proposed by their ideas could apply in this country.

R (O'Brien) v Military Governor North Dublin Union Internment Camp (1924). 10 It is important to remember that Britain now has a democratically elected government. At the time Dicey was writing the government consisted of Lords and landowners. Courts believed in God given laws and the theories of natural justice. 11 Therefore, by Dicey's time, Parliamentary Supremacy had evolved to meet the increased need for strong governmental powers due to the changing economic climate.

12 Cases such as Lee v Bude and Torrington Railway Co. (1972) 13confirmed this. It would have been inconceivable, at that time, for Dicey to imagine foreign powers influencing British courts. Dicey's doctrine consisted of three main parts. Firstly, he stated that no one could question the validity of an act of parliament. This theory received judicial confirmation by Lord Reid in Madzimbamuto v Larder -Burke (1969)14 "It is often said that it would be unconstitutional for the UK Parliament to do certain things…

but that does not mean it is beyond the power of parliament to do such things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid. "15 In Pickin v British Railways Board, 197416 the House of Lords went further by affirming that, not only must the courts obey any law made by Parliament, but that they could not even examine whether the legislation had been made in accordance with the correct parliamentary features.

17 If this is the case then parliament can make any laws it so wishes, no matter how unfair or impractical they may be. Sir Ivor Jennings' example of this was that Parliament could make it an offence for Frenchmen to smoke on the streets of Paris. The fact that this would be impossible to enforce is irrelevant to the fact that a British Parliament could make that law if they wished. 18 The next part of Dicey's "Doctrine of Parliamentary Sovereignty" claimed that parliament could pass retrospective legislation.

An example of this can be found in Burmah Oil Co. Ltd v Lord Advocate, 196519 where a judicial decision was reversed by the passing of the War Damages Act 1965 which retrospectively cancelled the Crown's liability to pay compensation for war damage lawfully caused. This shows that Parliament can do things that other countries may regard as unconstitutional. 20 The final part of Dicey's doctrine states that no parliament can bind its successors or be bound by its predecessors.

21 Traditionally Parliament can repeal the legislation of a previous parliament, usually by expressing such a repeal in a later Act. If Parliament passes a new Act that is inconsistent with an earlier Act, this will be treated as an implied repeal by the courts as it is not required to attempt to reconcile the two:22 Ellen Street Estates v Minister of Health (1934)23; Vauxhall Estates Ltd v Liverpool Corporation (1932)24. The doctrine of implied repeal is, however, only an approach to the interpretation, it is not essential to parliamentary sovereignty.

The first signs that the ideals of British Parliamentary sovereignty maybe about to be challenged came during 1971, in the final stages of negotiations into Britain joining what was termed the "Common Market. " "Anti-marketeers," claimed membership would involve an unacceptable loss of sovereignty. 25 Such were the apprehensions, prior to Britain signing the European Communities Act 1972, that the Foreign and Commonwealth Office (FCO) produced a document entitled, "Sovereignty and the European Communities,"26 designed "to examine the implications of entry into the European Communities for British Sovereignty.

" This report suggested that membership would involve a considerable loss of sovereignty. If these findings had been publicised, it is unlikely that any political party would have approved Britain's entry to the EEC. In fact, this information was so sensitive it was only released recently under the thirty-year rule. 27 The European Court of Justice had already shown that Community law was to prevail over incompatible national law long before Britain joined the EU 28 in Costa v ENEL (1964).