Parliamentary Sovereignty

It remains a first principle of our constitutional practice of fairness that fantan in enacting primary legislation is sovereign. sevensary reign has been pendant though non departed from in different ways by our adoption of the integrity of the European juncture by the European Communities exercise 1972 and by the Human Rights proceeding 1998. Per Lord Justice Laws, R (MISICK) v secretarial assistant of State for Foreign and Commonwealth Affairs 2010 EWCA Civ 1549 Evaluate this line of reasoning with reference to appropriate legal authorities.In bon ton to evaluate this producement it is authorised to at a lower placestand what fantanary sovereignty is and how it relates to European gist justice with the human action of the European Communities entertain on 1972 and the Human Rights move 1998. The doctrine of parliamentary sovereignty means that fantan is the supreme Law maker of the UK, hence Parliament is free to make or unmake any(prenominal) fair play i t wishes with the exception that it cannot limit its admit power or bind itself when it receives to future legislation.This dictates that every(prenominal) courts must uphold legislation laid down by Parliament. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that Parliament has the right to make or unmake any law any(prenominal) and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament The principle of parliamentary sovereignty was derived from the fundamental doctrines of the Magna Carta, c every for of Rights and the Bill of Rights.Unlike many other countries the UK has no written constitution pith that it is flexible to be interpreted in the courts however the judge sees fit. The doctrine of parliamentary supremacy is pass offly in conflict with the full erudition of the community law in the UK. However, many things act so as to m ake parliamentary supremacy delusive, since international treaty obligations mean that authoritative(prenominal) legislation would never be uncluttered. The Treaty of Rome does not state that EU law is to feature precedence over domestic law.However, the ECJ in the case of Costa v ENEL stated that process States are dancing to detect EU law. This is reflected in the European Communities Act 1972, s 2(1) which provides that rights, powers and obligations under the Treaties are, without further enactment, to be given legal effect in member States. Accordingly, promptly applicable and directly effective EU law would take precedence over domestic law and if domestic law conflicted with EU law, domestic law would need to be changed. The European Communities Act 1972 s. (1)4 directly imposes pabulum of the Treaties, together with EU Regulations and other directly applicable European law, whether they were passed before or after the UK joined the European Union. It also invalidate s breathing domestic law wherever the two conflict and thereby the precedent is directly valid. Membership of the European Union is derogation from parliamentary sovereignty since every last(predicate) of the European Unions powers ply from Parliaments sovereignty through the original act, and therefore Parliament retains crowning(prenominal) sovereignty.There is a contain retention of parliamentary sovereignty in many theaters of European concern, since the UK has limited powers to fit penalties for breach of European Union law, and since the option is often left adequate to(p) in directives not to implement parts of the directive. It would appear that the doctrine of Parliament supremacy has been significantly qualified by the UK social station of the community. If absolute supremacy no longer exists, it could be restored by repealing European Community Act 1972.But the practical reality is that a new legal order has been created, in which the community law has supremac y over national law. The European Union was accused by Lord Denning of interfering with Parliament sovereignty in the absence of express authority by the EC Treaty. However the UK membership and the European Union guide together caused a significant area of legislative power to pass to EU. This does not mean that it is permanent further if the UK decided to leave the European Union, then Parliament could exercise its ultimate sovereign authority by Act of Parliament and epeal the European Communities Act 1972, whereby the provisions of the EU Treaties would no longer have effect in domestic law. If the supremacy within the European Community of Community law over the national law of member states was not always inborn in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United ground joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 w as entirely voluntary. European Union Law challenges the concept of Parliamentary reign.The European Union also has the doctrine of supremacy which means all member states must adhere to European Union laws as contend to their own national laws. This may have restrained Parliamentary Sovereignty in the UK upon its entry to the European Union in 1972. In order to comply with the European Court of Justice the UK Parliament enacted the European Communities Act 1972 and the Human Rights Act 1998. Lord Denning stated that signing the treaty was just the first step as Community law could not be implemented merely by signing a Treaty of Accession.Parliament passed the European Community Act 1972, which came into force on inaugural January 1973, whereby Community law become applicable in the UK. It is an essential aspect of sovereignty that all states should have supreme control over their internal affairs, subject to the recognised limitation imposed by international law. Parliamentar y approval is not required for EU legislation that is binding in the UK, which again jeopardises the UK sovereignty. The major(ip) case that encapsulates this is Factortame, by enacting the Merchant Shipping Act 1988, Parliament breached European law.In this case the compatibility was challenged. The Factortame decision marks a clear, if not important, that constitutional loss from the tralatitious view of parliamentary sovereignty. Since Factortame, UK law now recognises that Community institutions have the right to make decisions and issue regulations which may override legislation by Parliament. The Human Rights Act 1998 was introduced in order to comply with the European convening of Human Rights so that national law was more compatible with European Union law and to protect Parliamentary sovereignty. It first came into force on 2 October 2000.TheHuman Rights Actempowers courtsto read legislation in such a way as to give effect to the European linguistic rule onHuman Rights . Article 46 of the European Convention on Human Rights states that the government must abide by and must follow final decisions of the European Court of Human Rights. Actions of UK judges are limited by a constitutional compromise developed over centuries, period European judges have been given enormous power. Although Parliament could pass legislation today withdrawing Britain from the EU and Community law would cease to accommodate at the national level.The Human Rights Act 1998 seems only to go so far where Parliament is concerned as is shown with the relatively new anti-terrorism laws. S. 2(1) of the HRA makes it clear these laws are tranquilize to be interpreted by the courts in their own way. A court or tribunal determining a fountainhead which has arisen in connection with a Convention right must take into account any judgment, declaration or advisory opinion of the European Court of Human Rights (b) decision of the Commission etc. . henever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the transactions in which that question has arisen. Ever since the UK joined the EU in 1972, the EU has played an increasing role in Britain, and as a get out has had an impact on the UK sovereignty. Therefore distinctly any Community law would prevail over UK legislation passed before 1972, as this is uncontroversial and accords with the usanceal doctrine of parliamentary sovereignty. However, the doctrine depends largely on the obedience by the judiciary to the doctrine of implied repeal. So the issue arises as s. (4), which declares that any future enactment to be passed must be applied subject to the provisions of the ECA 1972. Therefore since Dicey defines sovereignty as continuing , it would seem that s. 2(4) is clearly an attempt by parliament, contrary to the very principle of the UKs constitutional, to stop dead the doctrine of implied repeal and consequently, bind its successors. As membership of the European U nion is derogation from Parliamentary Sovereignty in practice, all of the European Unions powers flow from Parliaments original Act and therefore surely Parliament retains ultimate supreme.Lord Denning stated that if the UK chose to take back complete supremacy it could advantageously do so by leaving the European Union. If the time should come when our Parliament deliberately passes an Actwith the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have scene that it would be the duty of our courts to follow the statute of our Parliament. This could create problems for the UK in certain areas, both economically and politically.The UK now having been a member state for nigh 30 years has to take the economic growth and other absolute aspects with the negative aspects of being a member state, one being a lesser sense of Parliamentary sovereignty. As stated by Margaret Thatcher It i s a myth that our membership of the Community will suffocate national tradition and culture. Are the Germans any less German for being in the Community, or the French any less French? Of course they are not References House of Commons European scrutiny committee. (2010). The EU Bill and Parliamentary sovereignty. functional http//www. ublications. parliament. uk/pa/cm201011/cmselect/cmeuleg/633/633i. pdf European Communities Act 1972. Available http//www. legislation. gov. uk/ukpga/1972/68/ atom/1. determination accessed1st March 2012 Human Rights Act 1998. Available http//www. legislation. gov. uk/ukpga/1998/42/ contents. Last accessed1st March 2012 Brazier, R. (). APPENDIX 1 THE PARLIAMENT ACTS. Available http//www. publications. parliament. uk/pa/ld200506/ldselect/ldconst/141/14104. htm. Last accessed 1st March 2012 Wagner, A. (2011). Does parliamentary sovereignty still reign supreme?. Available http//www. guardian. o. uk/law/2011/jan/27/supreme-court-parliamentary-sovereignt y. Last accessed 1st March 2012. (2011). Imprisoned by a Doctrine The Modern defense force of Parliamentary Sovereignty. Available http//ojls. oxfordjournals. org/content/early/2011/10/19/ojls. gqr027. abstract. Last accessed 1st March 2012 R v Secretary of State for transfer of training ex parte Factortame (No. 2) 1991 1 AC 603 Flaminio Costa v ENEL1964 ECR 585 (6/64) &8212&8212&8212&8212&8212&8212&8212&8212&8212&8212&8212&8212&8212&8212 1 . Dicey, A. V. 1982 1914. induction TO THE STUDY OF THE LAW OF THE CONSTITUTION. 8th ed. Indianapolis Liberty Fund 2 .Flaminio Costa v ENEL1964 ECR 585 (6/64) 3 . http//www. legislation. gov. uk/ukpga/1972/68/section/1 4 . Lord Denningin Bulmer Ltd v J. Bollinger (1974) 5 . R v Secretary of State for Transport ex p Factortame (No. 2) 1991 1 AC 603 6 . Martin, E. Oxford Dictionary of Law (2002), 5th Edition, Oxford University Press, Press, Pg 469 7 . http//www. legislation. gov. uk/ukpga/1988/12/contents 8 . http//www. legislation. gov. uk/ukpga/1998/42/contents 9 . Human Rights Act 1998, http//www. legislation. gov. uk/ukpga/1998/42/contents 10 . Lord Denning