Limitations on parliamentary sovereignty

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The UK Parliament enacts a new measure called the Public Order Stability Act 2024, which imposes broad restrictions on public assemblies near sensitive government facilities. A coalition of civil rights groups alleges that the Act disproportionately limits freedom of expression under the European Convention on Human Rights (ECHR) and may also be at odds with certain retained EU obligations affecting Northern Ireland. The government contends that parliamentary sovereignty allows Parliament to legislate without constraint, irrespective of international or retained EU obligations. Opponents of the Act argue that the Human Rights Act 1998 requires the courts to interpret or challenge legislation that conflicts with ECHR protections. A judicial review has been launched to determine whether the courts can disapply the Act or issue any declarations regarding its compatibility with higher legal principles.


Which of the following statements best reflects the courts’ likely approach when considering the Act’s effect under parliamentary sovereignty?

Introduction

Parliamentary sovereignty is a fundamental aspect of the United Kingdom's constitutional framework, giving Parliament the supreme legal authority to enact, amend, or repeal any law. Under this doctrine, Parliament's legislative power is unrestricted by any higher legal constraints. This principle, articulated by constitutional theorists like A.V. Dicey, holds that no body, including the courts, can question the validity of Parliament's legislation. However, various legal developments have introduced significant limitations to this sovereignty. Analyzing these constraints is essential for understanding the current constitutional framework and for the application of law in contexts relevant to the SQE1 FLK1 exam.

Historical Foundations of Parliamentary Sovereignty

Parliamentary sovereignty, as stated by legal scholars such as A.V. Dicey, establishes that Parliament holds the ultimate legislative authority in the United Kingdom. This means Parliament can enact or repeal any law, and no other institution can override or set aside its legislation. The roots of this principle trace back to key events like the Glorious Revolution of 1688 and the passing of the Bill of Rights in 1689, which cemented the supremacy of Parliament over the monarchy.

In the early 17th century, cases like Dr. Bonham's Case (1610) hinted at the idea that common law could potentially override parliamentary statutes. However, this notion did not gain traction, and the supremacy of Parliament remained unchallenged. By the time of Pickin v British Railways Board [1974], it was firmly established that the courts lacked authority to question the validity of an Act of Parliament.

Limitations Imposed by EU Law

Before Brexit

For several decades, the UK's membership in the European Union introduced a new dimension to the concept of parliamentary sovereignty. EU law, by virtue of treaties and the European Communities Act 1972, held supremacy over domestic UK legislation in areas of competence. This meant that, in cases of conflict between UK law and EU law, EU law would prevail.

A landmark case illustrating this is R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991]. In this case, the House of Lords accepted that it had the authority to disapply an Act of Parliament that was inconsistent with EU law. Lord Bridge notably remarked that the supremacy of EU law had been acknowledged at the time the UK joined the European Community.

After Brexit

With the UK's departure from the EU, one might assume that parliamentary sovereignty has been fully restored. However, the reality is more complex. The European Union (Withdrawal) Act 2018 retained a significant body of EU law within domestic law, known as "retained EU law." Additionally, the Withdrawal Agreement and subsequent arrangements, such as the Trade and Cooperation Agreement, impose certain obligations on the UK that may limit parliamentary discretion.

Furthermore, the Northern Ireland Protocol, part of the Withdrawal Agreement, means that certain EU laws continue to apply in Northern Ireland to avoid a hard border with the Republic of Ireland. This creates a complex legal situation where, in some areas, EU law still has effect within the UK.

Just as a ship changing its flag might still carry cargo from its previous voyage, the UK, after Brexit, continues to be influenced by EU laws that have been integrated into its legal system. These retained laws continue to shape legislation and judicial decisions, showing that the departure from the EU did not entirely remove limitations on parliamentary sovereignty.

Impact of the Human Rights Act 1998

The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law, introducing another layer of limitation on parliamentary sovereignty. Under the HRA, courts are required to interpret legislation, as far as possible, in a way that is compatible with the rights set out in the ECHR.

Section 3 of the HRA mandates this interpretative obligation, and if a court finds that a piece of legislation is incompatible with ECHR rights, it can issue a declaration of incompatibility under Section 4. This does not invalidate the legislation but places significant pressure on Parliament to amend the law to comply with human rights standards.

An example of the HRA in action is the case of Ghaidan v Godin-Mendoza [2004], where the House of Lords used Section 3 to interpret the Rent Act 1977 in a way that extended tenancy rights to same-sex partners, aligning domestic law with the ECHR's prohibition of discrimination.

The Human Rights Act functions like a lens through which courts view legislation. When examining statutes, judges look through this lens to ensure clarity and alignment with fundamental rights, adjusting interpretations to prevent infringement. This interpretative process can significantly limit the ways in which Parliament's laws are applied.

International Law and Dualism

The UK's approach to international law is characterized by a dualist system. This means that international treaties and obligations do not automatically become part of domestic law; they require specific incorporation through legislation. Despite this separation, international law still exerts an influence on parliamentary sovereignty.

Courts may use international law as an interpretative aid, aiming to construe domestic statutes in a manner consistent with the UK's international obligations. In R v Secretary of State for the Home Department, ex parte Brind [1991], the House of Lords acknowledged that, where possible, legislation should be interpreted to be consistent with international commitments.

Moreover, principles of customary international law, which emerge from the consistent practice of states out of a sense of legal obligation, can be directly applied by domestic courts. This was seen in cases like R v Jones (Margaret) [2006], where the House of Lords considered the application of customary international law in the context of criminal law.

International law operates much like an undercurrent beneath the surface of domestic legislation, subtly guiding interpretations and influencing decisions even when not explicitly incorporated. Thus, parliamentary sovereignty is tempered by the need to consider international norms and obligations.

Judicial Interpretation and Constitutional Principles

In recent years, the judiciary has played a more active role in shaping constitutional principles that can act as constraints on parliamentary sovereignty. Some judges have suggested that there may be fundamental constitutional norms that even Parliament cannot override.

In R (Jackson) v Attorney General [2005], several Law Lords contemplated the possibility of limits to parliamentary sovereignty in the face of extreme legislation. Lord Hope stated that "the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based."

Similarly, in AXA General Insurance Ltd v HM Advocate [2011], Lord Hope implied that the courts might have the authority to strike down legislation that violates fundamental rights or constitutional principles.

The judiciary acts like an umpire in the constitutional arena, ensuring that even when Parliament changes the rules, fundamental principles of fairness and justice are upheld. While these judicial views have not led to legislation being invalidated, they indicate a potential shift towards recognizing certain restrictions on Parliament imposed by the rule of law and constitutional principles.

Illustrative Examples

Example 1: Environmental Legislation

Suppose Parliament enacts a law that significantly relaxes environmental regulations, potentially conflicting with international agreements like the Paris Agreement on climate change.

Analysis:

While Parliament has the authority to pass such legislation, practical constraints emerge. International obligations create expectations and diplomatic pressures that may deter Parliament from enacting laws that blatantly ignore international agreements. Courts may also interpret the legislation in a manner that minimizes conflict with international commitments, if possible.

Example 2: Surveillance Legislation

Consider legislation that expands surveillance powers for national security purposes, raising concerns about the right to privacy under the ECHR.

Analysis:

Under the Human Rights Act 1998, courts would interpret the new legislation through the lens of the ECHR. If the expanded surveillance powers infringe on Article 8 rights (right to respect for private and family life), courts may issue a declaration of incompatibility, prompting Parliament to revisit the legislation.

Example 3: Trade Agreements

Post-Brexit, Parliament seeks to enter into new trade agreements that require changes to domestic law.

Analysis:

While Parliament can legislate to implement trade agreements, the terms of these agreements may impose constraints. Obligations to align with international standards or to allow certain imports may limit Parliament's freedom to legislate in contrary ways. Additionally, failure to comply with international trade obligations could result in disputes or sanctions.

Conclusion

Limitations on parliamentary sovereignty arise from multiple sources, interacting in complex ways that reshape the traditional understanding of absolute legislative authority. The incorporation of EU law, even after Brexit, the Human Rights Act 1998, international obligations, and evolving judicial views collectively impose significant constraints on Parliament. Key cases such as Factortame and Ghaidan v Godin-Mendoza illustrate how courts have managed these limitations, sometimes setting aside or reinterpreting legislation to align with higher principles or obligations.

Comprehending these limitations is necessary for any analysis of UK constitutional law. The interplay between parliamentary sovereignty and these constraints demonstrates the dynamic nature of constitutional principles and the importance of considering not just the letter of the law, but the broader context in which it operates.

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