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'the Doctrine of Parliamentary Sovereignty Has Been Undermined by Numerous Factors'.

By harrisonjdr Feb 25, 2013 1527 Words
Sovereignty is the principle of absolute and unlimited power, implying either supreme legal authority (legal sovereignty) or unchallengeable political power (political sovereignty). It is absolutely clear that the doctrine of Parliamentary sovereignty has been undermined by numerous factors. However, other people happen to disagree with me. J.S. Mills says that “Parliament can do anything except turn a man into a woman”. This quote shows that J.S. Mills does not think that the doctrine of Parliamentary sovereignty has been undermined by numerous factors. Parliament sovereignty is based on four conditions. The absence of a codified constitution is the absence of a higher law. The supremacy of statue law over other forms of law- Acts of Parliament outrank common law, case law, and so on. The absence of rival legislatures, no other bodies have independent law-making powers. And no Parliament can bind its successors- Parliament cannot make laws that cannot be unnamed. A codified constitution is a constitution in which key constitutional provisions are collected together within a single legal document, popularly known as a written constitution or the constitution. There are advantages and disadvantages to a codified constitution.

The growth of a mass electorate
When the principle of parliamentary sovereignty was established, less than 5% of the adult male population and no women had the right to vote. Today, virtually all adults aged 18 and over have this right. As a result, the House of Commons is now elected by popular vote. So where does sovereignty lie now? Is it with Parliament or with the electorate? It can be argued in either way, but there is a strong case suggesting that sovereignty does not actually lie with Parliament anymore. In a sense, if more voters turn up to the ballot box, the less sovereignty Parliament actually has.

The Party System
The growth of a mass electorate in the late 19th century led to the development of the party system. This, in turn, altered the balance of power between Parliament and the executive. Since the government is now generally formed from the largest party in the House of Commons, it can usually rely on its majority to secure parliamentary approval for its proposals. Most laws are, therefore, proposed not by Parliament but the government. This therefore is able to indicate to us that Parliamentary sovereignty is limited.

Other Parliamentary Pressure
There have been occasions when powerful pressure groups outside Parliament have been able to frustrate attempts by Parliament to introduce new laws. In the 1970s, for example, trade unions forced Parliament to amend the 1971 Industrial Relations Act and in the late 1980s extra-parliamentary action forced the government to replace the poll tax with the council tax. These examples suggest that, in practice, the principle of parliamentary sovereignty is limited.

International Relations
The UK has, at various times, committed itself to international agreements and treaties which place upon it certain Obligations. For example, in 1949 the UK joined NATO and, as a result, handed over some control over defence policy and foreign policy. Theoretically, of course, commitments like this do not infringe parliamentary sovereignty since Parliament could decide to ignore or cancel its commitments. But, in practice, the political, and often economic, consequences of so doing make such actions unlikely- the more so with the increasingly global nature of political and economic events and relationships. This is able to portray to us that Parliament sovereignty is affected and it is not shown in International agreements and treaties.

It can be argued that the use of referendums limits parliamentary sovereignty since important decisions are made by the electorate and not Parliament. An example of a referendum would be the 2011 referendum on whether we should change to the Alternative voting system for the General elections. This information is able to display to us that seeing as Parliament do not make the important decisions, then it is assumed that Parliament sovereignty is limited.

EU Membership
Membership of the European Union continues to raise important questions about the limitations on the sovereignty of the UK parliament. Under the terms of membership, Britain is a member of the EU for eternity. EU law is binding on all member states and, therefore, takes precedence over British domestic law. The UK Parliament can express its disapproval in the case of amendments to the Treaty of Rome, the founding treaty signed by all members of the EU, other than that EU legislation will always become law within the UK, even British Parliament completely disagrees with it thinks about it. The 1986 Single European Act and the Maastricht Treaty can be seen as reducing UK sovereignty since they extended the range of policy areas on which the EU can legislate. But Parliament could agree to repeal previous legislation and withdraw from the EU even though there would be enormous economic and political consequences if they did this. If this was the case, it would demonstrate that parliamentary sovereignty still exists. This information can display that Parliament sovereignty does not exist here however that could change if we withdraw from the EU because it is able to show us that they still have the power Parliament claims to have.

1998 Human Rights Act
There were worries that some features of the European Convention on Human Rights into British law with the 1998 Human Rights Act would further weaken parliamentary sovereignty. The Human Rights Act incorporated the rights set out in the European Convention on Human Rights into UK statue law. All new legislation must be compatible with these rights and the British courts decide cases brought under ECHR. Parliamentary sovereignty is preserved by the Act because the courts cannot automatically strike down laws. If legislation is found to be incompatible with the ECHR, it is for Parliament to decide whether to either amend the law or launch and appeal. A law deemed contrary to human rights will lack moral authority and will be subject to further legal challenge. “There had been 20 declarations of incompatibility by 2006, six of which were overturned on appeal”. This evidence is able to show us that Parliamentary sovereignty is eroding and that the Human Rights Act is just making it erode even faster. Parliament is not, and has never been, politically sovereign. Parliament has the legal right to make amend or unmake any law it wishes, but not always the political ability to do so. A simple example would be that Parliament could, in theory, abolish elections, but this would be likely to result in widespread public protests, if not popular rebellion. There has been a shift from parliamentary sovereignty to popular sovereignty. Evidence of the growth of popular sovereignty can be seen, for example, in the wider use of referendums, the establishment of popularly elected devolved assemblies and in more clearly defined citizen’s rights, particularly through the Human Rights Act.

Pressure Groups
Another example of how parliamentary sovereignty has been undermined is that although Parliament can still make, amend or abolish any law it wishes – legal sovereignty. It cannot always pass it, showing the lack of political sovereignty. For example if Parliament decided they wanted to abolish elections, in theory they could, but at the expense of large scale public protest and popular rebellion. This highlights how parliamentary sovereignty is being undermined as even if Parliament passes a new law of this kind, the scale of public protest, mainly from pressure groups.

Blackstone also thinks that Parliament sovereignty has not been undermined by numerous factors. “What Parliament doth, no power on earth can undo”. This quote is able to portray to us that Blackstone thinks that Parliament can do anything that it wants and that no force could stop it. Parliament sovereignty is without doubt, the most important principle of the UK constitution, but it is also its most controversial. Parliament sovereignty is based on four conditions. The absence of a codified constitution is the absence of a higher law. The supremacy of statue law over other forms of law- Acts of Parliament outrank common law, case law, and so on. The absence of rival legislatures, no other bodies have independent law-making powers. And no Parliament can bind its successors- Parliament cannot make laws that cannot be unnamed.

Overall, the doctrine of Parliamentary sovereignty has been undermined by numerous factors. It has been undermined by the growth of the mass electorate, referendums, the current party system that we have at the moment, extra-parliamentary pressure, International agreements and treaties, membership of the EU and the Human Rights Act of 1998, also by large and powerful pressure groups. It’s clear that there is still some parliamentary sovereignty today however it is getting more ambiguous as the days go on. Parliament sovereignty is the key part of the UK constitution and it allows parliament to do anything it wants. Other figures do happen to disagree about Parliament sovereignty for example: J.S. Mills and Blackstone, but that still does not change the fact that parliament sovereignty is not what it used to be. So to conclude, it is clear to see that the doctrine of Parliamentary sovereignty has been undermined by numerous factors.

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