1.The orthodox view of parliamentary sovereignty
To define parliamentary sovereignty does not seem too complicated when it is assessed in isolation. Only in connection with other constitutional principles difficult tensions arise. The orthodox view of parliamentary sovereignty is simply that only parliament has the right to make or unmake law and that no other institution can challenge that right. This also includes the rule that parliament cannot bind its successors. Parliament can follow its own procedural rules as it wishes and court cannot examine the procedure by which legislation has been passed (enrolled bill rule). 2.Conflicts with national institutions
This orthodox view has been challenged in the times in the context of judicial review and academic thought. In 2004 the case R. (Jackson) v. Attorney General raised important questions of the scope of parliamentary sovereignty. One aspect of the case is that the Attorney General, arguing for the government, accepted that the judges had jurisdiction over a procedural question and through that over the question whether the act was a valid statue. That clearly stands in conflict with the traditional enrolled bill rule which says that the courts cannot examine the procedure in which a piece of legislation has passed. Another important issue of the Jackson case is that even though the judges held that the Hunting Act was an Act of Parliament they did not hold that it was an Act of the sovereign Parliament. The reasoning behind that is that the Parliament Acts of 1911 and 1949 enabled the House of Commons and the Crown to enact laws as primary legislation but they at the same expressly conferred limitations (particularly the exclusion of the right to prolong the lifetime of Parliament).
Thus the Parliament, consisting of the House of Commons and the Crown has not ‘the right to make or unmake any law whatever’ and is not the sovereign Parliament in the sense of the orthodox definition anymore. A majority of judges even said obiter that Parliament could not extend its lifetime beyond five years, even if the 1911 Act was to be expressly repealed and the extension bill then passed. That leads to the question if there are basic constitutional rules that parliament simply cannot change. Lord Steyn and Lord Woolf held that the courts might have to revisit the principle of parliamentary sovereignty, if Parliament sought ‘to abolish judicial review of flagrant abuse of power by government or even the role of the ordinary courts in standing between the executive and citizens’. In such an event, the court might have to ‘qualify’ the supremacy of Parliament, ‘a principle established on a different hypothesis of constitutionalism’.
3.EC Act 1972
The biggest challenge for parliamentary sovereignty clearly comes from the implications of the 1972 EC Act. Section 2 of the EC Act obliges the UK courts to give effect to Union law. That does not mean that the British courts have the power to strike down legislation but they have the power to set aside British law in a particular case and apply Union law instead. Tensions arose in the past in a number of cases in which Westminster legislated against Union law. Good examples of it are the Factortame cases in which Parliament finally had to accept the supremacy of EU (then EC) law. However, the question of whether the traditional rule that no parliament can bind its successors is still valid was not expressly answered until the Thoburn case.
The case made it clear that there exists a hierarchy of norms, in which those Acts affecting “the legal relationship between citizen and State” or “fundamental constitutional rights” form a special and superior category known as “constitutional statutes” . These Acts can only be expressly repealed by Parliament and are therefore immune from the doctrine of implied repeal. That means that indeed parliament is not bound by former parliament decisions. But the procedural requirements for enacting legislation are now higher. If parliament wished to enact a piece of legislation that is inconsistent with Union law then it would have to expressly repeal Union law. However, the question of how UK courts would react has not reached any British court yet. A court could in the end decide that EU law in the case of conflict is always supreme unless parliament repeals the 1972 EC Act and withdraws its membership from the EU.
Conflicts between the rule of law and parliamentary sovereignty also arise in the context of human rights protection. That is not surprising since it is the very idea of human rights to limit governmental power and protect minorities. The 1998 Human Rights Act (HRA) incorporates parts of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its protocols into British law. However, with certain provisions the HRA seeks to maintain the principle of Parliamentary sovereignty. Firstly, Westminster Parliament is excluded from the rule laid down in section 6 (1) HRA that all public authorities have to act in way which is compatible with the Convention. Secondly, British courts must interpret legislation – so far as possible – in a way that it gives effect to Convention rights but they cannot, in contrast to other legal systems in Europe , strike down legislation because it is incompatible with a Convention right. British courts can in that event only make a non binding declaration of incompatibility.
However, parliament is bound to follow the decisions of the European Court of Human Rights (ECtHR) in Strasbourg. This fact has created a lot of political tension and public perception of Strasbourg ruling is very negative . The tensions now have culminated in the cases on prisoners’ right to vote in which the UK lost and the deadline to implement the judgement is running out on 22th November 2012. Parliament seems to use the case as a political reason to question the supremacy of the Strasbourg court. Since a few years politicians and also a few academics advocated for a British Bill of Rights that would substitute the HRA and some even claim that a withdraw from the ECHR is necessary in order to re-establish the sovereignty of parliament. 4.Conclusion
The orthodox view on parliamentary sovereignty is in many ways in conflict with the modern view of the rule of law. Giving away some of its power to the EU and being under the jurisdiction of the ECtHR the Westminster Parliament has clearly limited its sovereignty. However, it should be forgotten that Westminster chose to do so voluntarily and it is of course free to withdraw from the EU treaties or the ECHR.