Summary Of The Parliaments Authority

Summary Of The Parliaments Authority

     Parliament is supreme, “Parliament has...the right to make or unmake any law whatever” [1] . It is important to note that when Parliament is refereed to, it encompasses the Houses of Lords and Commons and the Queen, not just the commons, as neither has authority without the other [2] . Sir Coke shows how wide ranging and absolute the powers of Parliament are, “it hath uncontrollable authority in the making,confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws”, he then shows that Parliament that these powers span over all matters, “matters of all possible denomination, ecclesiastical or temporal, civil, military, maritime or criminal”. [3] This lengthy quote is proof of how “transcendent and absolute” [4] Parliament's authority is.

     Thus is no limit to parliament's legislative authority or the scope of it, and therefore the job of the courts is to uphold and adhere to Parliament's will no matter what Parliament's will may be. Lord Reid said in Madzimbamuto v Lardner-Burke, “If Parliament chose to do any of them [immoral things], the courts could not hold the Act of Parliament invalid”. [5] Thus it does not matter what Parliament enact, all that matters is that it was enacted by Parliament, and if that is satisfied not even the courts can question the statute.

     An example of just how far Parliament will take this doctrine is shown in the example of the Septennial Act. Here in 1715 Parliament extended Parliament's life between elections from three years to seven years, thus extending its own life by four years, just to avoid an election close to the Jacobean uprising in Scotland. There was substantive criticism of this Act at the time, being described as “a direct usurpation of the rights of the people” [6] , for the reason that the Parliament at that time had been voted in under the assumption that they would serve for 3 years. However this has no impact on the fact that Parliament “can make or unmake any law” [7] , and this law proves it.

     The enactment of the Septennial Act thus portrays Parliament's supremacy not as the result of a fundamental commitment to democracy, but as a means of exercising a despotic power over the citizenry. And in the legal sense of supremacy this would perhaps be the case as Dicey affirms “from a legal point of view, Parliament is neither the agent...nor the trustee” [8] of the electorate. This is the view of the legal supremacy of Parliament alone, without assessing the other factors, namely political factors.

     Political sovereignty then lies in the electorate, for this is the reason that Parliament will not pass an unjust and unfair law, as “the authority...even of a despot, depends on the readiness of his subjects...to obey” [9] . Due to the expansion of the franchise and the regularity of the elections over the last one hundred years, the will and voice of the electorate is so strong that in political terms Parliament cannot ignore it. Therefore parliament's legal supremacy is linked to the political supremacy of the electorate, and is dependent upon it.

     Parliament's legal supremacy no longer derives on the whole from history and its victory over the crown, but it now comes from the electorate. It is “a constitutional principle acquired before the advent of democracy yet one which might be said to be the most democratic" [10] . The will of the people is exercised now through Parliament, the justification and need for Parliament's legal supremacy within the last century has been to allow the will of the people to be enacted successfully without barriers. Parliamentary legal supremacy is useless and ineffective without the democratic support of the people, and the people are powerless without Parliament.

     This political supremacy of the electorate through a representative democracy manifests itself constitutionally in the rule of law. “Democracy lies at the heart of the concept of the rule of law” said Lord Bingham [11] . A dictator who rules benevolently, yet has no democratic constraints to his power would not comply with the rule of law, because “as a quid pro quo [for obeying the dictator's laws], the citizen should have a say in the laws by which he is...bound. [12] ” This puts democracy on a constitutional basis as well as a political one, furthermore many aspects of a liberal democracy are seen in Dicey's conception of the Rule of Law, such as equality before the law and a prohibition on retrospective punishment. [13] 

     This substantive view of the rule of law goes against Raz's views on a formal rule of law, where “a non-democratic legal system, based on the denial of human rights...may conform to the rule of law” so long as the formal requirements are fulfilled. [14] The expansion of the rule of law in judicial review is shown by cases such as Pierson [15] ,where despite having discretion to determine the minimum sentence for a prisoner, the Home Secretary was held to have offended the rule of law by increasing the sentence having given an indication that it would be lowered.

     Despite this extension it does not modify Parliament's supremacy, in Lord Bingham's view Parliament can “legislate so as to infringe any human right” [16] , backed up by Lord Diplock judicially; “if the terms of the legislation are clear and unambiguous, they must be given effect to” [17] . Thus despite the rule of law including liberal democratic ideas such as no punishment without law [18] , Parliamentary supremacy is intact.

     However the judiciary have shown a willingness to subvert Parliamentary supremacy should the need arise recently, perhaps inspired by the increasing strength of the rule of law through judicial review. “The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law” [19] . This striking obiter comment from Baroness Hale shows that the judiciary may be prepared to not enforce an Act of Parliament, were Parliament to subvert the rule of law in some way.

     If the judiciary can set aside an act of Parliament as Baroness Hale suggests, would it be an undemocratic modification to supremacy? “Democracy cannot provide a strong justification for judicial review” [20] . An Act of Parliament is in theory democratic, having been enacted and voted on by the representatives of the people, therefore the only body with the democratic legitimacy to reject an Act are the people of the country through Parliament. Judges are unelected, and therefore have no democratic legitimacy when it comes to legislation. However democracy can be “reinforced by judicial review” [21] , as suggested by Baroness Hale above. The judiciary will only ignore Parliament's supremacy should Parliament act in a fundamentally undemocratic way, as a government's democratic legitimacy “cannot justify...right to abolish fundamental freedoms” [22] , in this view the judiciary is the guardian of democracy as there are certain rights which cannot be at the disposal of governments [23] . The main problem with this argument, apart from again the judiciary being unelected, is that of quis custodiet ipsos custodes,who would ensure that the judiciary act correctly? In theory with Parliament the electorate are the ones who ensure that Parliament do not exceed their power. Therefore if the judiciary do extend their powers, it would be undemocratic.

     The extension of judicial review would not be a modification to supremacy brought on by Parliament itself, however recently Parliament has modified its supremacy itself, yet not irreversibly. Devolution is one such example of this; in 1998 Parliament delegated powers downwards to the Scottish Parliament and the Welsh and Northern Irish assemblies. This gave those bodies legislative competence is respect to their country. This is a slight modification to supremacy, as “the Government stated that it would not “normally” legislate with regard to devolved matters” [24] . This shows a self imposed limit on power, however it is merely a political limitation and has no legal force, as shown by the Scotland Act which does “not affect the power of the Parliament of the United Kingdom to make laws for Scotland. [25] ”. Devolution involved no “irrevocable surrender of parliamentary sovereignty” [26] , yet remains a modification, politically at least if not legally.

     In the case of devolution, instead of power being by Parliamen given to the judiciary, or to European bodies which lack democratic legimacy, power here is being transferred “downwards” to other elected bodies. This modification was fundamentally democratic in inspiration, Lord Bingham states that devolution was “prompted” by the view that the individual countries within the Union “should have increased responsibility for managing their own affairs” [27] . The white paper regarding Scottish devolution also acknowledged the democratic nature of devolution, stressing that it responds “to the wishes of the people of Scotland for a greater say in their affairs”, and that it “can only strengthen democracy” [28] 

     The only potentially undemocratic point devolution brings up is it highlights the West Lothian Question, the problem that England has no devolved power and is run by the Parliament of the whole of the UK, allowing Scottish MPs to vote on laws that affect England. This lacuna could be filled with a devolved assembly for England or regional assemblies, yet there is little support for this it seems, with the Northern England devolution referendum being rejected by 77% of the voters.

     Lord Steyn stated in Jackson that the Human Rights Act (HRA) “created a new legal order” because of which “the doctrine of the supremacy of Parliament...can now be seen as out of place". [29] These comments are wrong, the HRA was designed to accommodate Parliament's supremacy, a court has no invalidatory powers against inconsistent legislation, but it can give a “declaration of incompatibility” [30] . However this merely has political effect. This “provides an elegant model of how to retain sovereignty while giving weight to fundamental rights”. Parliament can legislate against the HRA, but the Act makes it more difficult for Parliament to do so. Clearly the HRA is democratic in inspiration, as well as upholding the supremacy of Parliament, the white paper stated that it would allow Parliament to protect “the rights which are at the heart of a parliamentary democracy [31] ”. It also upholds cardinal rights of a liberal democracy, such as the “right to a fair trial” [32] and the right to “free elections” [33] 

     The most significant modification to Parliament's supremacy is due to the UK's membership in the European Union, as of the 1972 European Communities Act (ECA). The ECA states all Community law subject to direct effect “are without further enactment to be give legal effect...in the United Kingdom” [34] . The European Court has made it clear that Community law is supreme over domestic law. “It cannot “be overridden by domestic legal provisions” [35] and furthermore national courts must “apply Community law in its entirety” and “set aside...national law which may conflict with it” [36] . Although Parliament is able to repeal the ECA, currently Parliament's supremacy is limited by the European Community, and the courts will uphold the supremacy of EC law [37] 

     There are great democratic lacunas within the structure of the EU. The executive of the European Union is the Commission which is compromised of 27 commissioners nominated by their national governments. Although the European Parliament can veto the appointment of the Commission, it cannot veto individual commissioners. Thus the Commission has a lack of accountability and representation to the people of Europe. The impetus for the creation of legislation comes from this body too, further distancing the population from the legislative process. The only directly democratic body in the EU is the European Parliament, which has increased powers in the Lisbon treaty, the co decision procedure has been extended to new policy areas. Despite this, the EU was not undemocratic in inspiration, it's purpose is that of an economic body, designed to enhance trade between members. Therefore by criticising its democracy, perhaps a mistake is being made as to the nature of the EU.

     In conclusion; from the increase of representative democracy in the past one century Parliament's Supremacy no longer derives from the power it fought the Crown for in the past, it now comes from the people, who hold political supremacy. The only justification now for Parliament's supremacy is that it is the best way for the people's will to be realised. In addition to this some of the modifications to Parliament's supremacy have not been undemocratic, devolution allows for better accountability and representation, and the HRA protects democratic civil liberties. And furthermore Parliament is still supreme, it can still legislate as it wishes. The EU is the only substantial block on Parliament's power, and also the most undemocratic too due to the structure of the EU. However the EU in inspiration was an economic body, we must not superimpose democratic legitimacy where it was not intended. Additionally the Lisbon Treaty should increase the democracy of the EU and give national governments more of a say. Finally the most important point is that Parliament is free to repeal any limit on its supremacy it has created, Parliament is supreme.