Is Parliament still sovereign Essay Example

parliamentary sovereignty grants legislative supremacy to Parliament.

The status of legislation is equal due to the impossibility of a parliament binding future ones. Laws concerning animal welfare are on the same level as those that result in significant constitutional changes, which some experts believe should be considered higher law in practice. Although parliament has the legal right to repeal the Scotland Land Act of 1998, doing so would be politically unacceptable against the wishes of Scottish Parliament and people. Four major challenges to parliamentary sovereignty include EU membership and the establishment of the Human Rights Act.

Traditional parliamentary sovereignty faces significant challenges from Devolution, Referendums, and Britain's membership in the European Union. In 1972, the European Communities Act granted legal authority to subsequent community law (now referred to as EU law) in the UK. Any domestic legislation that conflicts with it is considered ineffective, giving EU law precedence over national law.

In case of a conflict, EU law takes precedence over British law, as exemplified by the Factortame case in 1990/91. This led to the nullification of the Merchant Shipping Act 1998, which restricted foreign fishing boats from operating in UK waters and was deemed incompatible with Community law6. Despite this recognition of EU law's superiority by British courts, parliamentary sovereignty remains unaffected8. Parliament retains the authority to revoke the European Communities Act 1972; however, this may entail political hurdles such as negotiating withdrawal terms. Furthermore, the Human Rights Act1 stays in force.

The state's potential for abuse of power is prevented by the rule of law. However, until the Human Rights Act 1998, this prevention lacked the constitutional protection found in other liberal democracies. The UK statute

law now includes the rights outlined in Articles 2 to 12 and Article 14 of the European Convention on Human Rights (ECHR). Therefore, all new legislation must be deemed compatible with these rights by government lawyers, and British courts handle cases brought under ECHR. Parliamentary sovereignty is technically maintained, as courts cannot automatically invalidate laws. If legislation is incompatible with ECHR, it is parliament's decision to either amend the law through a fast track process or appeal. Despite this, parliament's hands are often tied as laws contradicting human rights lack moral authority and are open to further legal challenge.

Other areas show evidence of judicial apprehension regarding the state of power, with an increase in the incidence of judges ruling that ministers acted unlawfully through judicial review. From 2009, Parliament's sovereignty will remain preserved, as an independent Supreme Court takes over the judicial role of the House of Lords; however, it will not have the authority to nullify acts of Parliament.

The court may need to provide further clarity on the meaning and limitations of devolution within the UK. Devolution pertains to various policy areas wherein the Westminster government no longer legislates that applies to the entirety of the United Kingdom. Instead, primary legislative authority lies with the Scottish parliament and Northern Ireland Assembly, which are responsible for creating legislation on devolved concerns such as education. Wales also receives primary legislative power from Westminster, although the Welsh Assembly is responsible for secondary legislation. While Westminster has relinquished its right to legislate on devolved concerns, it still holds ultimate legislative supremacy and reserves authority over matters such as the UK economy, social security, and the constitution.

Despite possessing the authority to eliminate devolved Assemblies and determine Scottish, Welsh, and Northern Irish matters, opposition from the public and elite would make it challenging for the UK Parliament to do so. While cordial relations exist between UK and devolved administrations, tension may arise due to the new Scottish National Party minority government in Edinburgh. Referendums have grown increasingly popular for significant constitutional issues, with a solitary UK-wide referendum held in 1975 that favored remaining in the European community. Scotland, Wales, and Northern Ireland's respective nations approved their devolved assemblies through referendums. The Blair administration suggested but abandoned potential referendums on the European single currency and EU constitution after deciding not to join the euro and receiving unfavorable feedback on the constitution from France and the Netherlands.