The British Parliament was once supreme. Discuss with reference to Britain’s membership of the EU and its obligations to the ECHR.
It has been suggested that the British Parliament was once supreme (or sovereign) but that its supremacy has been eroded as a result of Britain’s membership of the EU and its signature of the ECHR. In order to examine this proposition, it is necessary to consider the origins or traditional doctrine of Parliamentary supremacy and differing theories of supremacy. This essay will also consider evidence that Parliamentary sovereignty has suffered severe trammelling due to obligations arising from membership of the EU by enumerating the specific issue of partial entrenchment. The essay will also consider Britain’s signature of the ECHR in the same light.
The origin of Parliamentary sovereignty began with the reduction in the King’s prerogative powers which brought about a correlative rise in the sovereignty of Parliament. From 1688, the supremacy of Parliament over the Crown was established and from this time the prerogative powers of the Crown continued, abolished or curtailed as Parliament determined. Diplock LJ stated in BBC v Johns (1965) that no new prerogative powers may be claimed by the Crown. The traditional doctrine of Parliamentary sovereignty as put forward by A.V Dicey includes firstly, the notion that the legislative ability of the UK Parliament is unlimited, in the sense that its powers to make laws on any subject matter are not open to any challenge. An example is Parliament’s ability to legislate on altering its term of office. Under the Parliament Act of 1694, the life of Parliament was limited to three years, fearing the effects of an election; Parliament passed the Septennial Act, extending the life of Parliament to seven years. The Septennial Act under a written constitution such as the United States would be legally invalid. However, Dicey argued ‘Parliament made a legal though unprecedented use of its powers’. Parliament may also grant independence to dependent states or colonies as with the Nigeria Independence Act 1960 and the Zimbabwe Independence Act 1979.
The second notion put forward by Dicey says Parliament cannot be restricted by a predecessor or restrict the power of a future Parliament (successor). However, Parliament could otherwise suffer a limitation of its powers as stated by TRS Allan ‘Parliament in 1972 accomplished the impossible and (to a degree) bound its successors’. The statement made by Allan assumes that apart from the effect of accession to the European Communities, no departure from this traditional doctrine is possible. Thirdly, Dicey opines that no one may question the validity of an act of Parliament. In Pickin v British Railways Board (1974), the opinion of Lord Reid represents the correct contemporary judicial view on the authority of statute where it appeared clearly settled that the notion of finding an Act of Parliament invalid could be said to be obsolete. This lack of legal restraint has both a positive and negative aspect. It means while Parliament can legislate on any subject, it cannot bind successive Parliaments. If it could, then clearly each successive Parliament would not be free to legislate on any matter. Thus where there is inconsistency between a subsequent and a former statute, the latter statute impliedly repeals the earlier one to the extent of its inconsistency with the former as derived from Ellen Street Estates v Minister of Health (1934) where Maughan LJ held that Parliament cannot bind itself to the form of future enactments. However, in AG for New South Wales v Trethowan (1932), the Privy Council upheld the requirement of a referendum before a Bill to abolish the Upper House was presented for the royal assent. An example is s.1 of the Northern Ireland Act 1998 which provides that Northern Island will not cease to be part of Her Majesty’s dominions without conducting a poll in Northern...
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