In Defence of Liberty

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On the EU: Sovereignty

On-the-EU-Sovereignty-Maurice.jpg

Is our Parliament sovereign? (Edited: Maurice)

Sovereignty is typically considered central to the debate over Britain’s membership of the European Union.

Alexander ‘Boris’ Johnson, the London Mayor and Conservative MP for Uxbridge and South Ruislip, said announcing his support for the Leave campaign [1]:

And when people talk about sovereignty, this is not something that is possessed by politicians. Sovereignty is people’s ability, the ability of the public to control their lives, and to make sure that they elect are able to pass the laws that matter to them. And the trouble is, with Europe, that that is being very greatly eroded. You are seeing it more and more over employment, over border controls, over human rights, over all sorts of stuff.

David Cameron, the Prime Minister, had sought to put the sovereignty of the House of Commons “beyond doubt” [2].

Parliamentary sovereignty

The question arises to what is meant by parliamentary sovereignty. Carl Gardner of Head of Legal writes lucidly on this matter, noting the distinction of political sovereignty, by which is meant the general right of any nation to be recognised as a state [3]. In the constitutional doctrine, Parliamentary sovereignty means:

Parliamentary sovereignty is a much more specific doctrine in our constitutional law. It means there are no legal limits on the power of Parliament at Westminster to make law in our legal system; Parliament has unlimited legislative competence.

This is typically associated with Professor Albert Venn Dicey, who wrote in his book, Introduction to the Study of Law of the Constitution [4]:

Parliament means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the “King in Parliament”, and constitute Parliament.

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

A law may, for our present purpose, be defined as “any rule which will be enforced by the Courts”. The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts. The same principle, looked at from its negative side, may be thus states: There is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the Courts in contravention of an Act of Parliament. Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation.

The Dicey doctrine

Fully expressed, the Dicey doctrine of Parliamentary sovereignty has two principal components: the unlimited capacity of Parliament to legislate; and that no other body — including courts — can override Parliament’s laws.

As Carl Gardner recognises, this radical idea is genuinely meant: Parliament can make any law it chooses. Parliament’s legislative capacity are neither limited by time nor space, nor do international bodies or laws constrain Parliament.

In recent times, the 2005 case of Hirst v. the United Kingdom found that the uniform ban on convicted prisoners being able to vote breached Article 3 of Protocol 1 to the European Convention on Human Rights, as found by the European Court of Human Rights [5]. The case of Greens and M.T. v. the United Kingdom resulted in a demand to produce compliant legislation on prisoner votes [6]. This resulted in a Draft Voting Eligibility (Prisoners) Bill, which has been acknowledged by the government, but not voted upon [7]. It is over a decade since the European Court of Human Rights ruled on Hirst v the United Kingdom, and all convicted prisoners are still unable to vote.

Parliament is not restricted by the laws of time either. Ex post facto laws, or retroactive legislation, may be frowned upon — disallowed by the European Court of Human Rights, no less — but are nonetheless permitted. The War Crimes Act 1991 confers the jurisdiction on courts in the United Kingdom to try people for war crimes committed in Nazi Germany or other Nazi-occupied territories during the Second World War, where those people were not British citizens at the time, but have become British citizens at a later date [8].

Retrospective amendments on taxation laws have been used multiple times, usually to collect dues from previously-legal tax avoidance schemes. As the BBC reported [9]:

It made the types of arrangements entered into by Mr Huitson illegal – not just for the future, but for the past as well.

Section 58 of the Finance Act in 2008 said that the change was to be “treated as always having had effect”.

The War Crimes 1991 also shows that Parliament is unbound by space too, meaning Parliament can legislate, no matter where an act takes place. The Sexual Offences Act 2003 punishes sexual offences by United Kingdom nationals committed outside of the United Kingdom, with courts obliged to treat the case as if it occurred within our borders [10].

These people can then be tried by our courts, and such legislation is a common alternative to extradition treaties with other nations.

Constitutions

Power may be legally constrained in other legislatures. The written constitution of the United States limited the power of the Congress. The famous First Amendment reads [11]:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The central question is that, given British membership of the European Union, whether British sovereignty has been diminished. Laws of the European Union do not have effect within the United Kingdom by their own right, but only take legal effect due to Section 2(1) of the European Communities Act 1972 [12]:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.

The reason that, in the R (Factortame Ltd) v Secretary of State for Transport case, the Merchant Shipping Act was dis-applied by UK courts was that Parliament willed this incorporation of EU law [13]. Parliament can amend or repeal the 1972 Act if it so wishes, and there would be undoubtedly be a clash with the Court of Justice of the EU.

Parliament is sovereign, but Britain has chosen to engage in supra-national decision-making, of which the EU is just one example. The question is whether power is over-centralised in the EU, or if it is properly distributed between levels of control.

References

[1] Johnson, B., 2016. Boris Johnson: I will be advocating Vote Leave… or whatever the team is called. The Spectator. Available from: http://blogs.spectator.co.uk/2016/02/boris-johnson-i-will-be-advocating-vote-leave-or-whatever-the-team-is-called/ [Accessed: 28th February 2016]

[2] Mason, R., and Watt, N., 2016. EU deal: Cameron vows to put Commons sovereignty ‘beyond doubt’. Available from: http://www.theguardian.com/politics/2016/feb/03/eu-deal-david-cameron-uk-parliament-sovereignty-beyond-doubt-boris-johnson [Accessed: 28th February 2016]

[3] Gardner, C., 2016. What is Parliamentary sovereignty, anyway? Head of Legal. Available from: http://www.headoflegal.com/2016/02/23/what-is-parliamentary-sovereignty-anyway/ [Accessed: 28th February 2016]

[4] Dicey, A. V., 1915. Introduction to the Study of the Law of the Constitution. Online Library of Liberty. Available from: http://oll.libertyfund.org/titles/1714 [Accessed: 28th February 2016]

[5] ECHR, 2005. Case of Hirst v. the United Kingdom (No. 2). Available from: http://hudoc.echr.coe.int/eng?i=001-70442#{“itemid”:[“001-70442”]} [Accessed: 28th February 2016]

[6] ECHR, 2010. Case of Greens and M.T. v. the United Kingdom. Available from: http://hudoc.echr.coe.int/eng?i=001-101853#{“itemid”:[“001-101853”]} [Accessed: 28th February 2016]

[7] Parliament, 2014. Draft Voting Eligibility (Prisoners) Bill. Available from: http://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-voting-eligibility-prisoners-bill/ [Accessed: 28th February 2016]

[8] UK Legislation, 2005. War Crimes Act 1991. National Archives. Available from: http://www.legislation.gov.uk/ukpga/1991/13 [Accessed: 28th February 2016]

[9] BBC, 2010. Will retrospective taxes affect us all? Available from: http://news.bbc.co.uk/1/hi/business/8496921.stm [Accessed: 28th February 2016]

[10] UK Legislation, 2005. Sexual Crimes Act 2003. National Archives. Available from: http://www.legislation.gov.uk/ukpga/2003/42/part/1/crossheading/offences-outside-the-united-kingdom [Accessed: 28th February 2016]

[11] CULS, 2004. First Amendment. Available from: https://www.law.cornell.edu/constitution/first_amendment [Accessed: 28th February 2016]

[12] UK Legislation, 2005. European Communities Act 1972. Available from: http://www.legislation.gov.uk/ukpga/1972/68/section/2 [Accessed: 28th February 2016]

[13] EUR-Lex, 2005. The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others. Available from: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61989CJ0213 [Accessed: 28th February 2016]

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This entry was posted on March 16, 2016 by in European Politics and tagged , , .
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