Talk:Parliamentary sovereignty

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does the principle of parliamentary sovereignty survive accession yo europe?

In both theory and practice, it does not - the European Communities Act of 1972 states that EU (then EC) law overrides UK law when the two are in contradiction. Thus, the UK parliament does not have parliamentary sovereignty. --Oldak Quill 13:16, 8 Jan 2005 (UTC)
This is wrong in theory and practice, and a little ignorant. In theory, why is it not still the case that the UK can pass a law removing the EC Act 1972? The courts have said, the only requirement is that it be made explicit that the Act should be removed in full, and governments can't pick and choose. Lord Denning said in Macarthys Ltd v Smith [1979] 3 All ER 325:
"If the time should come when our Parliament deliberately passes an Act - with 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 … it would be the duty of our courts to follow the statute of our Parliament. I do not however envisage any such situation … Unless there is such an intentional and express repudiation of the Treaty, it is our duty to give priority to the Treaty."
In practice, I see no reason why the people, and their representatives in a sovereign parliament, cannot decide they want to diverge in the way outlined. But, as Denning says, it's probably pretty unlikely, because the EU is quite a good thing for Britain, unless you're into counterfactual scaremongering. Wikidea 10:29, 11 March 2007 (UTC)

Actually, I would argue that opposite. EU law is superior to UK law, but the UK Parliament *could* repeal the European Communities Act. This is in contrast to say the Canada Act or Australia Act. -- Roadrunner 13:23, 8 Jan 2005 (UTC)

I think the UK parliament could easily repeal the Canada or Australia Acts - but these would not be recognised by the Canadian or Australian courts, of course. Morwen - Talk 07:17, 16 Mar 2005 (UTC)

i disagree in fact i believe that uk parliament coluld not easily repeal the canada or australia acts

I agree with Morwen - it's similar to the idea that the UK Parliament could validly pass an act banning smoking in Paris, but this law would be neither enforceable, nor politically viable Echo_park00 10:07, 4 Apr 2006 (UTC)

Further to what I just said - check Lord Reids dicta in Madzimbamuto v Lardner-Burke at [1969] 1 AC 645 if you have access to it in any form - this can be used as a basis for an arguement that Parliament can repeal previous attempts to restrict itself. And British Coal Corporation v The King supports my previous statement that as a matter of abstract law, the Canada or Australia Acts couldbe repealed - but not in practice Echo park00 13:28, 5 April 2006 (UTC)

Contents

[edit] Things to mention

  • Can Parliament amend entrenched parts of the Act of Union? Apparently, yes.
  • Has Parliament ever tried to bind a successor apart from this? What happened?
  • To what extent is Parliament allowed to modify itself or make constitutional changes? Even if Parliament is not allowed to enact law that a successor cannot repeal, can it alter the constitution of the successor to require 2/3 majority to repeal, etc?
  • What other countries have this doctrine? Has it existed historically anywhere?
  • The devolution section needs de-stressing and the European and Human Rights parts need emphasising. Morwen - Talk 07:17, 16 Mar 2005 (UTC)

I believe (but am no law student) it applies in Australia and at least historically to the Australian states and territories. The Victorian Constitution, for instance, written prior to federation, claims that the Victorian Parliament has absolute power. I don't know if it ultimately lost this when it became a part of the Commonwealth (of Australia), and by the sounds of it no-one is sure because no-one's tested it (the preamble calls australia an indisoluble union, but that's the Preamble, not legally binding). Nevertheless, an act was passed by the Commonwealth Government in the last few years that Australian flag couldn't be changed except by referrendum: Whether the High Court would allow that to be repealed, and the flag to be changed, without referrendum is a different issue altogether. Probably it'd be politically very sensitive if anyone tried. OTOH, Considering that the Australian Constitution was accepted by referrendum, and can only be changed by referrendum, maybe the Parliament is not sovereign, but the people. Also, the High Court of Australia has judicial review capabilities similar to the US Surpreme Court's. Does this affect Parliamentary supremacy? I don't know. I'm not a High Court Judge. 203.82.183.147 08:30, 28 Mar 2005 (UTC)

  • Can Parliament amend entrenched parts of the Act of Union?

There is no concept of entrenchment in the UK constitution.

  • Has Parliament ever tried to bind a successor apart from this? What happened?

No Parliament can bind its successor.

  • To what extent is Parliament allowed to modify itself or make constitutional changes? Even if Parliament is not allowed to enact law that a successor cannot repeal, can it alter the constitution of the successor to require 2/3 majority to repeal, etc?

Parliament could in theory do anything, completely abridge civil rights for example. I don't know where the concept of 50% for a majority comes from, but it must be ancient. Parliament could pass a statue requiring a 2/3 majority, but it could never prevent a successor repealing the statue.

  • What other countries have this doctrine? Has it existed historically anywhere?

Not sure, but I would imagine many Commonwealth/Westminster system countries do. Deus Ex 14:58, 13 Jun 2005 (UTC)

This point about altering the constitution of a successor is quite interesting, actually. You say that a parliament could not prevent its successor from repealing a statute that defined passage of a bill as occuring only when a two-thirds majority was achieved, but presumably it would take a two-thirds majority to enact the repeal! If this is true, a parliament could presumably insist on a unanimous vote for all future legislation, and its successor would only be able to repeal this by acting unanimously. I'd be interested to see more incorporated into the article about what various scholars have said about the precise implications of the presumed inability of a parliament to bind its successor. 86.136.6.239 18:08, 12 April 2006 (UTC)

Parliamentary supremacy has also existed historicaly in parts of scandinavia

[edit] parliamentary sovereignty

i want to know if parliamentary soveignty still exist in the uk or not and also how the concept of parliamentary sovereignty has been eroded by the devolusion of powers to regional assemblies

Some not-too-bright kid trying to get us to do his homework, eh? --Breadandcheese 12:17, 24 January 2006 (UTC)

[edit] Church of Scotland

While Parliament has granted independence to the CofS in religious affairs, does this mean its sovereignty has been restricted in any meaningful way? Does the 1921 Act not simply prohibit government and judicial interference?

I'm of the opinion (without actually seeking the Act in question) that it could be repealed and therefore is no restriction on sovereignty whatsoever. --Breadandcheese 12:18, 24 January 2006 (UTC)

[edit] Development of English Parliamentary Concept of Sovreignty

Wonder if anyone thinks this should be expanded. No mention is made of the Bill of Rights in England, which displaced the earlier mutings by the judiciary in Dr Bonham's Case (1610) and the Case of Proclamations (1611) that the primacy of statute law was not certain.

Echo_park00 10:13, 4 Apr 2006 (UTC)

[edit] Statute of Westminster

"Following the Balfour Declaration, the Statute of Westminster 1931 established a status of legislative equality between the self-governing dominions of the British Empire and the United Kingdom, and provided that Acts passed by the UK Parliament would not apply in the dominions without a dominion's express consent."

This is how the Statute of Westminster is often described, but if you look at the article Statute of Westminster 1931, you'll see that the precise formulation of this change may need qualifying if we're being accurate (or pedantic, perhaps). The Statute says:

"No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof."

Notwithstanding what others above have said about the unenforceability of legislation affecting e.g. Australia, it looks as if this could be interpreted to mean that Parliament could indeed pass a law extending to such a country, provided only that it was unilaterally declared in the relevant act that it had been requested and consented to, regardless of the real wishes of whichever unfortunate former colony was being legislated for. Am I right? 86.136.6.239 18:08, 12 April 2006 (UTC)

Correct as far as the Statute of Westminister, but this power to pass laws even at the request of the local parliament was removed in the 1980's by the Canada Act and the Australia Acts 24.206.109.229 22:31, 28 September 2006 (UTC)
However, the Canada Act (and presumably the Australia Acts) is itself an Act of the UK Parliament, and could be repealed by that Parliament. If you want to talk about political-practical limitations on parliamentary sovereignty, though, that's probably the most extreme hypothetical I could think of.--Rumplefurskin 20:49, 31 May 2007 (UTC)
Acts of Parliament, just like any other law, relies on the respect of those executing and interpreting it. So, yeah, presumably Parliament could enact legislation that referse specifically to some internal detail in Australia. But what would the point be? Who's going to execute that law in Australia? sebmol 05:04, 13 April 2006 (UTC)

[edit] theoretical viewpoints

does anyone else think it would be worthwhile to insert some information in relation to differing viewpoints on parliamentary sovereignty in the UK - Dicey, Wade, Jennings, with examples from case law? Could lend some new light to this topic. Echo park00 21:52, 31 May 2006 (UTC)

Add away. I went to a talk the other day by Vernon Bogdanor - he thinks we are due a constitutional crisis, as a result of which either the supremacy of Parliament (i.e Parliament can do what it likes) will have to give way to the rule of law (i.e. the judges will be able to tell Parliament that it can't do certain things - like break EU law, or breach the European Convention on Human Rights), creating effectively entrenched constitutional rights, or vice versa.[1] -- ALoan (Talk) 23:09, 31 May 2006 (UTC)

The European and British Courts have the authority to declare incompatibility or to annul a law only because of an Act of Parliament, the European Communities Act 1972 which can be repealed by Parliament. Thus, Parliament theoretically remains (almost) entirely sovereign. There are a few sub-national entities in the world which *could* legally secede and become sovereign states. (The recent secession of Montenegro from its union with Serbia is an example.) By the same argument above, that means that these entities are also "theoretically sovereign" before secession? --131.215.155.154 05:08, 15 August 2006 (UTC)

[edit] Examples

The intro mentions New Zealand, but the rest of the article does not mention it. Finland is mentioned in the main article, but not in the intro. What's up with that? Mdotley 21:44, 21 August 2006 (UTC)

[edit] Rule of Law

I removed this (added by User:Ruth Baillie) from the article because it looks suspiciously like WP:OR. Reproduced below in case anyone can salvage it. --EdC 22:54, 18 December 2006 (UTC)

(Parliamentary supremacy as a concept is logically flawed. Its legislative supremacy is a doctrine established in case law not in parliamentary statutes, therefore the authority for the authority of statutes comes in fact from common law, making that particular doctrine of case law authoritative over the statutes drawn up by parliament. The existence of the common law doctrine of parliamentary supremacy proves that parliament is not infact supreme. Parliament cannot rationally legislate so as to give itself parliamentary supremacy because the rationale and justification of any such statute would be both circular and dangerous. If parliament could assert its supremacy on the authority that it thinks it is supreme what is to stop any rival body asserting the same thing. Being common law also weakens it as common law is subject to gradual change, parliamentary supremacy as a doctrine became much more clear following the civil war to reflect the changing political reality, if the political reality changes again so could the doctrine and its interpretation and application in the courts. So Parliamentary Supremacy was never a technical reality but a fiction employed by the courts, nevertheless this fiction approximates to a reality in practical terms. While the courts treat parliamentary statute as the highest form of law the situation is effectively that of parliamentary legislative supremacy.)
===Rule Of Law and Parliamentary Supremacy===
The central doctrine of the Rule of Law would appear at first to contradict with parliamentary supremacy, but Rule of Law in its barest form is essential for the doctrine of parliamentary supremacy. For ministers to be unable to act outside the powers given to them by parliament affirms the supremacy of parliament over the tyranny of government. Without the necessity for the executive to act within the scope of the rule of law parliamentary supremacy becomes superfluous. Raz’s conception that that the judiciary should be independent, that laws should not apply retrospectively and that laws should be relatively stable and clear produces no contradictions with the concept of parliament as supreme legislative body, it is only when the rule of law takes on a substantive form that such a conflict occurs.

It's not OR, it seems to be a rather strongly worded version of the 'Manner and Form' theory Jennings expounded in The Law and The Constitution. It was more of a critiqe of the orthodox dicean theory though than a statement that the entire concept of Parliamentary Soverignty is logically flawed. —Preceding unsigned comment added by 213.48.73.89 (talk) 00:45, 25 April 2008 (UTC)

[edit] Worldwide view?

What other countries have a concept of parliamentary sovereignty? Most do not, since they have entrenched constitutional provisions that cannot be altered unilaterally. The intro says that it applies in "some parliamentary democracies". Surely it is going to have a limited number of entries, since it doesn't make much sense to list all the countries that don't have a concept of parliamentary sovereignty. Aaronrp 19:30, 1 February 2007 (UTC)