Essay Example on Growing impact of the rule of law on parliamentary Sovereignty

A declaration of incompatibility could indicate that a Convention right has been breached and a UK citizen may have recourse through the European Court of Human Rights This may possibly urge Parliament to amend the legislation as it would be politically undesirable to be perceived as breaching protected human rights However since its enactment only 29 declarations of incompatibility were made The courts instead prefers to make use of s 4 of the HRA 1998 and interpret legislation instead of encroaching on the principle of parliamentary sovereignty The HRA 1998 has potentially made it more difficult for Parliament to enact legislation inconsistent with Convention rights Ministers must now declare whether the Bill being proposed accords with Convention rights and to provide an explanation if it does not However as per Lord Hoffman parliamentary sovereignty means that Parliament can legislate contrary to fundamental principles of human rights if it so wishes The Criminal Justice Act 2003 which restricted the right to trial by jury and allows complex fraud cases to heard alone by the judge is evidence that Parliament is still able to legislate contrary to the HRA 1998 albeit with more difficulty The Act has to a certain extent compromised the principle as there may be a political cost to breaching Convention rights and while the significance of the rule of the rule of law and separation of powers are enhanced parliamentary sovereignty is ultimately reaffirmed through the courts inability to strike down legislation and Parliament s ability to repeal the HRA 1998 The European Communities Act 1972 ECA has had a significant constitutional impact on the UK as it conferred rights onto UK citizens and subjects domestic law to EU law The nature of EU law has prompted varying divisions between academics over its impact on parliamentary sovereignty where some consider that UK membership into the EU has extinguished parliamentary sovereignty However it must be noted that 

Parliament surrendered supremacy to the EU only in exclusive competences areas As stated in Miller the ECA is the only form of legislation which Parliament has conferred precedence through its legislative ability Therefore limitations on parliamentary sovereignty only applies to these exclusive competence areas and as these limitations are self imposed it can be repealed Wade considers the ECA 1972 as a constitutional revolution which bound Parliament which is contrary to the traditional understanding of parliamentary sovereignty This proves to be inaccurate as the ECA 1972 is in process of being repealed as a result of Brexit The Miller case proved to be of significant constitutional importance as it reaffirmed the fundamental significance of parliamentary sovereignty The majority and dissentients had differing understandings of the nature of EU law The majority considered UK to be a dualist state where the ECA 1972 acts like a conduit pipe and EU law becomes an independent source of domestic law While Lord Reed dissenting perceived EU law as distinct from domestic law but is given legal effect While there is disagreement over the nature of EU law which affects their judgments in relation to the use of prerogative power they agree that EU law is given effect as a result of parliamentary sovereignty and it thus remains the fundamental principle which underlines the British Constitution The majority judgment then further reinforces the fundamentality of the principle where it required an Act of Parliament to trigger Article 50 in order to withdraw from the EU over the use prerogative powers The self imposed limitation is a deviation from the traditional understanding of parliamentary sovereignty but the government still required the authorisation of Parliament before it could alter the constitutional laws of the UK which highlight the ongoing relevance of the principle It is evident that the traditional omnipotent Parliament is constrained by political factors the growing importance of the rule of law and self imposed limitations as is observed through the enactment of ECA 1972 the HRA 1998 and other statutes While these constitutional developments have challenged parliament s unlimited legislative powers the UK constitution continues to legislate on the basis of parliamentary sovereignty proving that to a certain extent the Division court was accurate to say it was the most fundamental principle although the understanding of the principle differs from the traditional Diceyan conception judges have highlighted the growing impact of the rule of law on parliamentary sovereignty it is as Elliott suggests it would be a very brave judge who would actually go through with the threats made or hinted in Jackson If the courts were to actually reject an Act of Parliament it would be akin to a revolution which would complete alter constitutional practice 

Since the courts have yet to disapply an Act of Parliament outright it is reasonable to infer that this revolution has not occurred and parliamentary sovereignty remains the most fundamental principle The enactment of the Human Rights Act 1998 HRA is also evidence of UK s inclination towards a more substantive rule of law While it is argued that the rule of law is irreconcilable with the sovereignty of parliament the HRA 1998 represents a compromise between the two principles where parliamentary sovereignty is preserved The act has increased the role of the judiciary where the courts must interpret legislation in accordance with Convention Rights and are able to make declarations of incompatibility if an Act of Parliament is considered incompatible with Convention rights But parliamentary sovereignty is retained through s 4 6 which explicitly states that a declaration of incompatibility does not render the act void or changed It is ultimately up to Parliament to decide whether to act upon the declaration made A declaration of incompatibility could indicate that a Convention right has been breached and a UK citizen may have recourse through the European Court of Human Rights This may possibly urge Parliament to amend the legislation as it would be politically undesirable to be perceived as breaching protected human rights However since its enactment only 29 declarations of incompatibility were made The courts instead prefers to make use of s 4 of the HRA 1998 and interpret legislation instead of encroaching on the principle of parliamentary sovereignty The HRA 1998 has potentially made it more difficult for Parliament to enact legislation inconsistent with Convention rights Ministers must now declare whether the Bill being proposed accords with Convention rights and to provide an explanation if it does not However as per Lord Hoffman parliamentary sovereignty means that Parliament can legislate contrary to fundamental principles of human rights if it so wishes The Criminal Justice Act 2003 which restricted the right to trial by jury and allows complex fraud cases to heard alone by the judge is evidence that Parliament is still able to legislate contrary to the HRA 1998 albeit with more difficulty The Act has to a certain extent compromised the principle as there may be a political cost to breaching Convention rights and while the significance of the rule of the rule of law and separation of powers are enhanced parliamentary sovereignty is ultimately reaffirmed through the courts inability to strike down legislation and Parliament s ability to repeal the HRA 1998 The European Communities Act 1972 ECA has had a significant constitutional impact on the UK as it conferred rights onto 

UK citizens and subjects domestic law to EU law The nature of EU law has prompted varying divisions between academics over its impact on parliamentary sovereignty where some consider that UK membership into the EU has extinguished parliamentary sovereignty However it must be noted that Parliament surrendered supremacy to the EU only in exclusive competences areas As stated in Miller the ECA is the only form of legislation which Parliament has conferred precedence through its legislative ability Therefore limitations on parliamentary sovereignty only applies to these exclusive competence areas and as these limitations are self imposed it can be repealed Wade considers the ECA 1972 as a constitutional revolution which bound Parliament which is contrary to the traditional understanding of parliamentary sovereignty This proves to be inaccurate as the ECA 1972 is in process of being repealed as a result of Brexit The Miller case proved to be of significant constitutional importance as it reaffirmed the fundamental significance of parliamentary sovereignty The majority and dissentients had differing understandings of the nature of EU law The majority considered UK to be a dualist state where the ECA 1972 acts like a conduit pipe and EU law becomes an independent source of domestic law While Lord Reed dissenting perceived EU law as distinct from domestic law but is given legal effect While there is disagreement over the nature of EU law which affects their judgments in relation to the use of prerogative power they agree that EU law is given effect as a result of parliamentary sovereignty and it thus remains the fundamental principle which underlines the British Constitution The majority judgment then further reinforces the fundamentality of the principle where it required an Act of Parliament to trigger Article 50 in order to withdraw from the EU over the use prerogative powers The self imposed limitation is a deviation from the traditional understanding of parliamentary sovereignty but the government still required the authorisation of Parliament before it could alter the constitutional laws of the UK which highlight the ongoing relevance of the principle It is evident that the traditional omnipotent Parliament is constrained by political factors the growing importance of the rule of law and self imposed limitations as is observed through the enactment of ECA 1972 the HRA 1998 and other statutes While these constitutional developments have challenged parliament s unlimited legislative powers the UK constitution continues to legislate on the basis of parliamentary sovereignty proving that to a certain extent the Division court was accurate to say it was the most fundamental principle although the understanding of the principle differs from the traditional Diceyan conception