Sovereignty of UK parliament

Devolution is a major influence on sovereignty of UK parliament. As asserted by Lord Hope in Jackson, The Scotland Act 1998 ensured that Scotland retained it's own legal system since the Union with England in 1707, giving Scotland wide law making powers in selected areas. Though the Westminster parliament may infringe on these powers, it recognises the political power held by the Scottish people and would require the consent of the Scottish people when advancing unpopular legislation in relation to the Scottish parliament.

One of the greatest external influences is presented by the joining of the European Union by the UK. By so doing the UK accepted a new legal order. In essence Community law takes precedence over inconsistent national law. New rights are conferred on individual citizens while new obligations are created on member states. This presents a problem to sovereignty because judges now have an obligation to override legislation that is inconsistent with community law.

This situation was made clear by the cases of Costa v Ennel Case 6/64 (1964) ECJ,31 and R v Secretary of state for Transport ex parte Factortame (No 2) (1991)32 where it was established that directly applicable EC law overrides inconsistent UK law . The implication is that Acts of Parliament can be challenged33. Member states now have an obligation to correct any national laws inconsistent with EU law. It seems unlikely; therefore, that while the UK remains a member state, that the Diceyan theory of parliamentary supremacy will be preserved.

The attempts of the Convention on Human Rights to protect the rights of individuals have become a major influence on the UK law. It wasn't until 1998 that the UK government made a formal attempt to protect individual human rights35. It is therefore, not surprising that a decision was made against the UK by the EHCR in Golder v United Kingdom 1975 1 EHRR 524. Though the 1998 Act does not invalidate an Act of Parliament, it nevertheless gives rights to individuals who may seek recourse from the European Court of Justice (ECJ).

Against this background it is in the interest of the judges to ensure that the Act complies with Human Rights36. A recent development has been the proposal for an independent supreme court. The current position is that the Law Lords37 operate as a committee of the House of Lords. The appellate committee and the House of Lords receive appeals from relevant courts. Questions have been raised regarding the transparency of the House of Lords where functions overlap and where the highest court of appeal sits within parliament.

Thus, in recent years there have been calls for the creation of a new free standing institution separating the highest appeal court from the second house of parliament, and removing the Lords of Appeal in Ordinary from the legislature. The Government has taken a step towards establishing a supreme court under S 23 of the Constitutional Reform Act 2005 which simply states "there shall be a Supreme Court of the United Kingdom". It is the government's opinion that this will reflect and enhance the independence of the judiciary38.

There has been opposition to develop a supreme court alongside the US model as it would be a threat to the UK constitutional tradition. 39 A question arises as to whether the creation of a supreme court by parliament would mean that parliament transfers it's authority to the Supreme Court thus eliminating its own sovereignty40. The aspect of the Diceyan doctrine of parliamentary sovereignty in the UK has changed in recent years, and this process of change will continue during the present century. The notion of unlimited parliamentary sovereignty no longer makes legal or constitutional sense.

To answer the question posed by this essay, the comments made by Lord Steyn and other judges in Jackson, while accepting the supremacy of parliament, points out, that the introduction of various Acts, in particular, the 1972 Act, that gives judges the right to disregard inconsistent domestic law; The Human Rights Act 199841 that creates a new point of constitutional balance between parliamentary and judicial supremacy, and the Scotland Act; that provides the potential to acquire a political authority in matters of Scottish law,42 and as stated by Jowell [2006] PL 571, the discussion by the 9 judges in Jackson suggest that the doctrine of UK parliamentary supremacy has no place in a modern constitution43 1 Constitution normally refers to the legal document setting out the framework for the nation or state, giving legitimacy to the government. It also sets out the rules which govern institutions. Having no written constitution, critics have questioned the existence of a UK constitution.

UK constitution based on a long historical background and has evolved rather than been formed. It has as much authority as a written constitution. The principle of parliamentary supremacy is a major element of the UK constitution; Bernett, Hilaire, "Constitutional and Administrative", 2006, 6-7, Routledge-Cavendish 2 Also referred to as 'sovereignty' 3 Legislation denotes law making powers. Dicey asserts that this supremacy is the dominant aspect of UKs political institutions. There are no limits as to what parliament can legislate on, no court can challenge or disregard valid UK Acts. Marshall Enid, 1999 "General Principles of Scots Law"140, W.Green Sweet and Maxwell, For a detailed definition where political and legal sovereignty is distinguished see, Bernett, Hilaire, "Constitutional and Administrative", 2006, p 164, Routledge-Cavendish

As explained by Salmond in Bernett Hilaire, pp162- 163, 'the source of this power is historical, thus it is not enacted', and as HWR Wade states, 'the rule is above the reach of statute' 5 This process was an attempt to reduce the power of the crown, and give parliament more power to make laws 6 Parliament here refers to the House of Commons, House of Lords and the Monarch. 7 The House of commons being the most important element of parliament 8 Enid A Marshall, "General Principles of Scots Law", 1999, W Green Sweet and Maxwell