Doctrine of Parliamentary Sovereignty in UK

For almost three hundred years, the concept of Parliamentary Sovereignty has been central to the
British constitution. It's crucial to learning the ins and outs of British politics. The concept is that
Parliament is the ultimate authority on legal matters and can pass whatever legislation it pleases
without fear of legal repercussions. Its laws are generally immune to judicial overturning. British
constitutional law places great emphasis on parliamentary sovereignty (www.parliament.uk).

When the United Kingdom became a member of the European Community in 1972, it and its
residents became subject to those regulations. In the event of a country's accession to the
European Union, all Community Law becomes directly relevant, or incorporated into, its
domestic law. Community law derives primarily from the principles outlined in the Articles of
the European Union Treaty. The accompanying regulations, directives, and decisions elaborate
on the concepts introduced in the Articles. These aid member states in determining whether or
not adjustments are necessary to bring their legislation into conformity with Community law.

The EU treaty states that laws can be implemented immediately under Article 249. As a result,
directives are incorporated into UK legislation without the need for parliamentary approval. The
desired outcomes of member state directives are enforceable under international law, but the
specifics of how those outcomes should be achieved are left to the discretion of individual
countries. Any and all parties, from individual citizens to entire nations, that are directly or
indirectly affected by a decision must adhere to it in full. Direct enforcement is an important
element. Any citizen of a member state may employ those provisions of Community law that
have been incorporated into the national law of that state in a national court.

To prevent conflicts between UK law and Community law, the European Communities Act of
1972 was enacted to grant Community legislation independent legal force. All rights, powers,
liabilities, obligations, and restrictions "established or emerging under the Treaties shall be
recognised and available in law, and shall be enforced, allowed, or followed accordingly," as
stated in Section 2(1) of the Act. This clause provides that an act of legislation is presumed to be
directly enforceable in the UK if it must enter into force immediately due to the EC Treaties.
This means that the United Kingdom does not need to enact a new act of incorporation in order
to implement any of the rules, regulations, or directives of the EC Treaty that have direct effects
under EC law. The direct effect principle is included into UK law in section 2(1). Legislation
from the European Union (EU) now directly applies in the United Kingdom according to the
European Communities Act of 1972. Without further ado, the law of England shall be applied to
any rights or obligations established by the Treaty. According to Lord Denning (H.P. Bulmer Ltd
v. J. Bollinger SA).

The British have made the "acceptance that Community law comes first" quite easily (Craig &
De Burca 2003, 301). Clearly, the fundamental constitutional principle of Parliamentary
sovereignty has been the most crucial element preventing the UK from recognising that EC law
is the most vital. Parliamentary sovereignty, in its purest form, is the belief that Parliament can
bind itself in the future in no way it sees fit. This fundamental concept made it challenging for
the United Kingdom to grant full legislative power to the institutions of the European
Community. Lord Denning concurred in Shields v. E. Coomes (Holdings) Ltd that Community
law is paramount. He stated that it was apparent that Parliament's "manifest intention" in passing
the European Communities Act of 1972 was to adhere to the principles of direct effect and
supremacy. (at 461). As far as he is concerned, the European Court of Justice should settle the
problem if national legislation are ambiguous or inconsistent with EC law.

The first major conflict between national law and Community law to be addressed before
domestic courts was in Macarthys v. Smith. The EC Treaty is not only an effective tool for
determining the proper application of our legislation, but it is also binding under international
law. If it turns out that our laws are inadequate or conflict with Community Law because they
were written incorrectly, we must give Community Law precedence (Lord Denning at 329). Case
history shows that Spanish fishing interests challenged the constitutionality of the Merchant
Shipping Act of 1988 under the guise of R v. Transport Secretary ex p. Factortame. This
demonstrates the superiority of Community law over inconsistent national statutes. The Act
defined "British fishing vessels" narrowly so that foreign interests wouldn't be able to benefit
from the UK's fishing quota. The Act was ineffective in British courts. Before the United
Kingdom had joined the Community, Lord Bridge had declared that Community law trumped
that of individual member states (Bradley & Ewing 2007, 72). Almost everyone acknowledges
that national courts must adhere to EC law and that EC law has precedence over national law.
The Human Rights Act of 1998, on the other hand, cannot make this claim. ("HRA 1998").

In October 2000, following the implementation of the HRA 1998, the courts recognised the
European Convention on Human Rights as a legally binding document (from now on, "the
Convention") the ability to do more with less effort. Parliament's authority must be safeguarded,
but so must the rights of the people. That's why the law was passed, after all (Ames 2003). The
Human Rights Act of 1998 did not make the European Convention a part of domestic law or
elevate its position in domestic law like the European Communities Act of 1972 did. As a result,
the Act served to safeguard legislative authority, and in cases where domestic law and
Convention rights appeared to be at odds with one another, domestic law would prevail (Epstein
& Foster, 2009). It is not within the jurisdiction of the courts to strike down main laws under the
Human Rights Act of 1998 if they cannot be understood or read so as to be compatible with
rights granted by the Convention. Parliamentary sovereignty grants the legislature the power to
enact any laws it deems appropriate, including those that restrict individual liberties.

However, the Act has simplified the government's obligations under the Convention and
provided individuals with a more expedient and accessible means of exercising their Convention
rights than by appealing to the European Court of Human Rights in Strasbourg. U.K. courts are
required to consider Convention precedent and principles under section 2 of the Human Rights
Act of 1998. To the degree practicable, primary law must be interpreted and given effect in a
way that is consistent with Convention rights, as stated in Section 3. In sections 6-8, the
Convention establishes a general obligation on public authorities not to interfere with
Convention rights and allows individuals whose rights have been violated to seek direct
remedies. In contrast, the Act states that it "does not modify the legality, continuing operation, or
enforcement of any incompatible primary law" in Section 3(2)(b), which indicates that no court
has the authority to strike down any primary legislation, which are essentially Acts of
Parliament. This means that the European Convention on Human Rights guarantees are not
binding in the United Kingdom, and that Parliament has the authority to adopt primary
legislation that violate these guarantees under the Human Rights Act of 1998.

If a court is unable to determine an interpretation of a law that is consistent with the Convention,
it can find out what went wrong by declaring a violation has occurred. According to the Human
Rights Act of 1998 (HRA 1998), the court must uphold laws that are at odds with the Convention
on the Rights of Persons with Disabilities even if there is no possible means to make them
compatible with the Convention. The executive branch can proclaim an incompatibility, but the
legislature must approve new legislation to fix it (Section 4). Publicly stating this would put
pressure on the administration and parliament to promptly amend the relevant law. Laws that
don't mesh well with others will remain in existence unless and until they are modified by law.
Parliamentary Sovereignty is preserved by the ability of Parliament to eliminate the
incompatibility. If a law is to pass through Parliament, the Minister responsible must certify in
writing that the bill's provisions are consistent with Convention rights, as required by Section 19
of the Human Rights Act of 1998. Alternatively, the Minister may decide to proceed with the
Bill notwithstanding the fact that it violates Convention rights.

There is a case called H v. Mental Health Review Tribunal. A groundbreaking "declaration of

incompatibility" between N&E London Region and the Court of Appeal was issued. The Court
of Appeal ruled that the Mental Health Act of 1983 violated Articles 5(1) and 5(4) of the
Convention. This was due to the fact that the burden of proof had been shifted from the
government to the detainee, which is the conventionally incorrect order of things.

Parliament's authority to enact laws without EU input is constrained by the European

Communities Act of 1972. When British laws conflict with international human rights treaties,
the Human Rights Act of 1998 "preserves Parliament's sovereignty" to ensure that British laws
always take precedence. (Taken from Hoffman and Rowe, 2006, p.