The no hierarchy between constitutional and other statutes

The sovereignty of Parliament in the United Kingdom is a deep-rooted debatedissue within present time. The concept originated in 1689, when the Earl ofShaftesbury declared that, “The Parliament of England is that supreme andabsolute power, which gives life and motion to the English government.”1However, the present years have shown us that there are various issues that interferewith the notion of Parliamentary Sovereignty and therefore DIceys theory has lackedcredibility over present years, however has hindered and parliamentarysovereignty has come back into play more in recent times. This essay will arguethat in theory in order toacquire this conclusion, the following are essential to consider: thedefinition of parliamentary sovereignty and challenges to parliamentarysovereignty, the cases of Evans and Miller and the UKs membership of the EuropeanUnion.  A.V. Dicey, introduced the most significant definition of parliamentarysovereignty.

Firstly, that Parliament has the right to make or unmake any lawand secondly that no person or body is recognised as having a right to overrideor set aside the legislation or Parliament.2  With regards to the first point, it signifiesthat all laws are enacted using the same procedures and no Parliament can binda future Parliament. Moreover,there is no hierarchy between constitutional and other statutes in that our lawdoes not recognise that an act or statute has higher importance than the other.3The second point of the definition highlights that no body, in particularEnglish courts cannot inquire into the passage of an Act of Parliament. This was demonstrated in thecase of Manuel v Attorney General4 thatconcluded that courts might only interpret and apply acts of Parliament and nocourts can refuse to obey it or question its validity. This can however, be argued as seenin the case R v Evans (Attorney General)5 , that concluded although the supremecourt did not inspect contents of the letters throughout the trial of PrinceEdward, it was demonstrated by a stance from supreme court against theGovernment’s power to interfere with the judiciary, that can be argued the factparliament is sovereign. Contradiction to the argument of parliamentary sovereigntyin the case of Evans, paragraph 54 of Evans saw Lord Neuberger say, “Constitutionalimportance of the principle that a decision of the executive should be reviewableby the judiciary”.

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This implies, that the judiciary will not just let theexecutive make important constitutional decisions without the consultation ofthe judiciary, and somewhat takes away that significance of power from theexecutive. Second, evidence that sovereigns power is diminishing from the caseof Evans is the general outcome of the case, that Attorney General could notissue a certificate merely because a different conclusion would have beenreached from the upper tribunal, again thus showing the less effect loss ofpower that Parliament sovereignty holds. Another challenge that threatens the foundation of parliamentarysovereignty is the still current EU membership and consequently, the HumanRights Act 1998 that comes along with it. The United Kingdom, joined the European union in 1973.However, before the United Kingdom joined, there was a law put in place by theEuropean Court of justice that EU look took priority over any law that anindividual member would make Reference. Membership into the EUsignifies its recognition that EU law is supreme and binding. This was firsthighlighted in the cause of Costav Enel5 inwhich the European Court of Justice was declares ascendancy of EU law in allMember States and they had restricted their sovereignty upon membership.Furthermore, in the case of R(Factortame Ltd) v Secretary of state forTransport, the House of Lords accepted the supremacy of EU law and disappliedthe Merchants Shipping Act 1988, a domestic law that conflicted with EUlaw.

  This was a case of high controversyas both the Court of Appeal and House of Lords held that the no national courtwas obliged to suspend an Act of Parliament, although the outcome of the casedemonstrates the supremacy of EU law over domestic law.Although Previous cases such as Thoburn vs Sunderland City Council have shownthat parliament can repeal or amend the 1972 European Communities Act. This did however causeissues within the court as to whether the Weights and Measure Act 1985 act showedinconsistency. This can be argued however with the membership of the EU resultingin the enforcement of the Human Rights Act 1998, which signifies that parliament have the right tomake or unmake any law it desires, on the basis that the law complies with theHuman Rights Act. This demonstrates that with the introduction of thisAct, parliamentary sovereignty is not being applied, as it should by A.V Diceysdefinition.

Furthermore, the act limits actions of future parliaments withregards to certain decisions based on previous doctrine. An  example of this could be, the re-introductionof execution that would be overruled by the Act in regard to Article 2, whichimposes on obligation on the State to protect a right to life.6However, this contradicts the notion of parliamentary sovereignty in which noperson or body should be able to restrict the decisions of Parliament. Thus,the UK’s decision to join the EU resulted in severe limitations to parliamentarysovereignty and its place in constitutional law being replaced by EU provisionsthat are constantly being introduced. Devolution in the UK has alsoproposed restrictions on parliamentary sovereignty being the fundamental rulein constitutional law. As a result of devolution, various legislative andadministrative powers have been transferred to political units in NorthernIreland, Scotland and Wales, which reflect the increased public support forself-governing in these states.  Forexample, the recent referendum in Scotland for independence demonstrates thepublic opinion for independence.

With the high ‘yes’ turn out, (44.7%)7highlights that political times are changing and more individuals desiredevolution from the UK and consequently, nationalism. Additionally, NorthernIreland has over the years, contributed to a growing threat to parliamentarysovereignty. After the Northern Ireland Temporary Provisions Act 1972,8Westminster dissolved the government however devolution was returned in 2007under the Northern Ireland Act. Moreover, its position today has evolved tosome extent, with Westminster permitting devolved powers over policing andjustice to the executive.9  The devolution of Wales, although not asextensive as Northern Ireland and Scotland, still demonstrates hindrance on theposition parliamentary sovereignty.

This was demonstrated with the introductionof the Government of Wales Act 2006, which highlighted a separation of powersbetween the executive and legislative branches of the assembly. However, parliamentarysovereignty does have a distinct presence in Wales, as measures of the NationalAssembly must be approved by Westminster. Therefore, the devolution of Scotland, Northern Ireland and Walesexposes the dissolving position of parliamentary sovereignty in the UK today,that suggests that with time, and political change this fundamental law isincreasingly hard to uphold.

 In argument to the fact thatParliament sovereignty has hindered as not having the same effect it once did,the Miller case argues the point that the power of parliament against theexecutive, with the judiciary of supreme court holding the decision that the executivealone cannot trigger the process of leaving the EU. The court made clear thatconsulting parliament alone was merely not enough and that for the trigger tobe in place, it must be done within statute. That government cannot as suchmake decisions and that it must go through parliament.  The approach that parliamentary sovereigntystill remains as accurate as it once did is one of great debate. In theory, itshould function as this due to the historical and political significance itupholds in addition to the stability that it contributes, but Dicey’straditional definition was struggling to maintain. However, in reality,although he increasing presence of the rule of law and EU provisions inaddition to the ever-changing political notion of devolution in Scotland,Northern Ireland and Wales demonstrates the undermining position ofparliamentary sovereignty in the UK’s constitution today, the case of Millerbrought back to life Dicey’s tradition of Parliamentary sovereignty and withthe UK in progression of leaving the EU, the legislative power will be awokenas the UK becomes one.

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