Parliamentary Sovereignty

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"It remains a first principle of our constitutional law that Parliament in enacting primary legislation is sovereign. Parliamentary sovereignty has been qualified though not departed from in different ways by our adoption of the law of the European Union through the European Communities Act 1972 and by the Human Rights Act 1998.”

Per Lord Justice Laws, R (MISICK) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 1549

Evaluate this statement with reference to appropriate legal authorities.

In order to evaluate this statement it is important to understand what Parliamentary sovereignty is and how it relates to European Union law with the enactment of the European Communities Act 1972 and the Human Rights Act 1998.

The doctrine of parliamentary sovereignty means that Parliament is the supreme Law maker of the UK, hence Parliament is free to make or unmake any law it wishes with the exception that it cannot limit its own power or bind itself when it comes to future legislation. This dictates that all courts must uphold legislation laid down by Parliament.

“ The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that "Parliament" has "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”

The principle of Parliamentary sovereignty was derived from the fundamental doctrines of the Magna Carta, Petition of Rights and the Bill of Rights. Unlike many other countries the UK has no written constitution meaning that it is flexible to be interpreted in the courts however the judge sees fit. The doctrine of Parliamentary supremacy is clearly in conflict with the full recognition of the community law in the UK. However, many things act so as to make parliamentary supremacy delusive, since international treaty obligations mean that certain legislation would never be passed.

The Treaty of Rome does not state that EU law is to take precedence over domestic law. However, the ECJ in the case of Costa v ENEL stated that member States are bound to follow EU law. This is reflected in the European Communities Act 1972, s 2(1) which provides that rights, powers and obligations under the Treaties are, without further enactment, to be given legal effect in member States. Accordingly, directly applicable and directly effective EU law would take precedence over domestic law and if domestic law conflicted with EU law, domestic law would need to be changed. The European Communities Act 1972 s.2(1)4 directly imposes provisions of the Treaties, together with EU Regulations and other directly applicable European law, whether they were passed before or after the UK joined the European Union. It also invalidates existing domestic law wherever the two conflict and thereby the former is directly valid. Membership of the European Union is derogation from parliamentary sovereignty since all of the European Union’s powers flow from Parliament's sovereignty through the original act, and therefore Parliament retains ultimate sovereignty. There is a limited retention of parliamentary sovereignty in many areas of European concern, since the UK has limited powers to determine penalties for breach of European Union law, and since the option is often left open in directives not to implement parts of the directive.

It would appear that the doctrine of Parliament supremacy has been significantly qualified by the UK membership of the community. If absolute supremacy no longer exists, it could be restored by repealing European Community Act 1972. But the practical reality is that a new legal order has been created, in which the community law has supremacy over national law.

The European Union was accused by Lord Denning of interfering with Parliament sovereignty in the absence of express authority by the EC Treaty. However the UK membership...
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