Parliamentary sovereignty is a theory of the UK Constitution, which makes parliament the ultimate legal authority that can generate or terminate any law. Questions have been raised as to whether parliament has the supreme ability to legislate, or other bodies should also contribute to this endeavor. Any law that restricts courts from prevailing over it is outdated in the contemporary world. Since UK is a key member of the EU, it should allow the EU law to influence its political sovereignty. Parliamentary sovereignty has been rendered obsolete by the superiority of European Union, as well as the UK’s statutory law that recognizes human rights, as this concept is a constitutional remnant.
Is Parliamentary Sovereignty Obsolete?
The concept of parliamentary sovereignty is build on the assumption that parliament is dominated by the executive, and the parliamentary sovereignty is in effect “taken to mean the wishes of the government of the day” (Dicey, 2013, p. xxi). In this model, the power is being separated into two: legal sovereignty and political autonomy. Courts have no jurisdiction to claim statuses invalid. The parliament has the capacity to alter all constitutional laws, except the parliament doctrine. According to Goldworthy, the doctrine of parliamentary sovereignty was developed through consensus, thus, it can only be modified through consensus of the people (Bogdanor, 2012, p. 181).
Parliamentary sovereignty has been subjected to criticism unlimited law making supremacy. UK Parliamentary sovereignty is creating a substantive due process, as it depicts that the country is yet to renounce its powers to the EU. Several lawyers, as well as political scientists, have maintained that as long as the UK continues to be a member of the EU, laws made by the UK parliament must allow the greater supremacy of EU define the authority (Judge, 2014). The European Court of Justice (ECJ) has the power to apply judicial review over the UK law. Thus, the parliamentary sovereignty should embrace the superiority of the EU law in its domestic rulings.
The rulings proposed by parliamentary sovereignty are quite different from the principles of normal European democracy. The idea of a “normal” European democracy should not be compared to the Westminster model, which has fallen short of the European norm. The desire to create the European democracy means rejecting parliamentary sovereignty with its crown sanctions and domineering executive, in support of a more continental approach (Bulmer, 2011, p. 43). The rise of a constitutionalism, both in global and regional scale, has transcended national boundaries, creating an authority on the national legal system that had remained entrenched in the pre-modern sovereignty standards.
In recent times, the UK has implemented a common law on human rights, where judiciary has taken the responsibility of providing protection on human rights. To avoid breaching the law, the judicial review introduced the substance of international human rights standards. The international human rights treaties have underlined this development, particularly the ECHR, which advocates for domestic judges to apply European human rights law to the domestic legal context (Hillebrecht, 2012). Recognition of European human rights, as indicated in the Human Rights Act (HRA) of 1998, illustrates superiority of EU law over national law.
However, parliamentary sovereignty is still fundamental in the UK constitution as it assists in the interpretation of statutes. In any liberal democracy, the rule of law is vital in directing citizens on obeying the rules. According to Goldsworthy (2011), the principle of parliamentary sovereignty co-exists with constitutional conventions that necessitate Parliament to “comply with many principles of political morality, including the rule of law” (p. 59). The British constitution is fundamentally unwritten, and the written part incorporates laws passed by Parliament, thus, to guarantee the growth and the constitution, Parliament should be sovereign to facilitate the implementation of laws that demonstrate the changing socio-economic needs of the UK citizens.
UK is one of the EU member states, thus, should not allow parliamentary sovereignty restrict its relationship with other EU members. Parliamentary sovereignty has been overtaken by time, as domestic courts have embraced European doctrine in making their rules. A time has come for the UK to acknowledge that parliamentary sovereignty is outdated, and embrace the new concept of constitutionalism advocated by EU. By enacting the HRA, the UK portrayed its doctrine of parliamentary sovereignty redundant (Goldsworthy, 2011). A consensual democracy that is founded on proportional representation, balancing of power between the parliament and the executive, as well as decentralization, is essential on all counts.
Bogdanor, V. (2012). Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty. Oxford Journal of Legal Studies, 32(1), 179-195.
Bulmer, W. E., & Scotland. (2011). A new model constitution for Scotland: Making democracy work in an independent state. Edinburgh: Luath Press.
Dicey, A. V. (2013). Law of the constitution. S.l.: Oxford University Press.
Goldsworthy, J. D. (2010). Parliamentary sovereignty: Contemporary debates. Cambridge: Cambridge University Press.
Hillebrecht, C. (2012). Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights. Human Rights Review, 13(3), 279-301. doi:10.1007/s12142-012-0227-1