Introduction principle of implied repeal does not apply to

Introduction

Parliamentary sovereignty is an authority of binding laws within the legal system, which consists of the House of Commons, the House of Lords and the Crown. Parliament can make or unmake any laws and courts do not have any power over its legislation. However, parliamentary sovereignty has been constrained, especially since the UK has become a member of the European Union in 1973. Therefore, although the UK Parliament is supreme and sovereign in many situations, the fact that the European Union law dominates the UK’s national law restrains in a way the power of Parliament in the law making process.

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Main Body

Parliamentary Sovereignty is absolute – A.V Dicey

Parliament can make or unmake any laws

It is widely perceived that Parliament is the absolute legal body that determines the UK law, as there is no written constitution. The jurist and constitutional theorist A.V Dicey states that Parliament is ‘pure and absolute’, as it can make, enact or repeal any laws. This is supported in Cheney v Conn, where it was held that courts are bound to follow the Acts of Parliament rather than the International Treaties. The sovereignty of the UK Parliament is further supported in R v Secretary of State for the Home Department, ex parte Simms and O’Brien, where Lord Hoffman suggests that ‘Parliamentary Sovereignty means that Parliament can, if it chooses legislate contrary to fundamental principles of Human Rights’. However, the UK Parliament must face the political costs that may arise due to its decisions, as the principle of legality suggests.

Parliament cannot be bound by its predecessors or bind its successors

Moreover, Parliamentary Sovereignty, as Dicey states, derives from the fact that Parliament cannot be bound by a previous Parliament or bind a future Parliament. The supremacy of Parliament is obvious in the doctrine of implied repeal, where judges are bound to follow the latest Parliament legislation with no reference to older statutes. In Vauxhall Estates v Minister of Health, it was held that the latest 1925 Housing Act prevails the Acquisition of Land Act in 1919. However, the principle of implied repeal does not apply to constitutional statutes, because Parliament must use express words to repeal, as stated in Thoburn v Sunderland City Council. This approach is further developed in HS2 v Secretary of State for Transport, where it was made clear that if two constitutional statutes are inconsistent, then courts must assume that there is no presumption of implied repeal.

 

Nobody can doubt the validity of an Act of Parliament

Finally, Dicey suggests that nobody can doubt the validity of an Act of Parliament. He establishes the legislative supremacy of Parliament and defines the constitutional history of the UK about the way it is governed and connected to the identity of the UK. In British Railways Board v Pickin, Lord Reid suggests that ‘the function of the Court is to construe and apply the enactments of Parliament’, implying that courts should not look behind the words of Parliament and must not doubt the validity of Acts. Moreover, the supreme role of the UK Parliament is emphasized in Jackson v Attorney-General, where it was held that the power of the UK Parliament is unlimited. 

Limits on Parliamentary Sovereignty

European Communities Act 1972

However, it can be argued that Parliamentary Sovereignty is limited due to the entrance of the UK in the European Union. If European and domestic law are inconsistent, then the European law prevails, as stated in Van Gend en Loos. Moreover, the primacy of the European Union law is emphasized in Costa v ENEL, where the European Court of Justice held that Community law must take precedence over inconsistent national law, without further enactment by the UK Parliament. In addition, in International Handelgesellschaft, it was held that Community law should even override constitutional laws enacted by Member States. The way national law adapts to Community law is evident in Macarthy’s v Smith, where Lord Denning suggests that the EU law is part of the UK’s constitution.

The primacy of Community law is further developed in Factortame, where European Union law overrides national law in the event of an irresolvable conflict. The House of Lords held that the European Communities Act prevailed the Merchant Shipping Act that was enacted at a later date. The Merchant Shipping Act was established by the UK government to prevent foreigners registering their vessels in the UK and thus having the same privileges as local fishermen. However, this Act could not be enforced, as it was contradicted with the European law. Therefore, as Parliament must legislate consistently with Community law, Parliamentary Sovereignty is restricted.

Human Rights Act 1998

Parliamentary Sovereignty may be constrained due to the Human Rights Act 1998. The Human Rights Act suggests that national legislation should be consistent with the European Convention on Human Rights. In R (Anderson) v Secretary of State for the Home Department, the House of Lords suggested that the actions of the Home Secretary were incompatible with the Human Rights Act, as he was a member of the government and not of the court. He should not have the power to fix the tariff of life imprisonment for the conviction of murder and thus s.29 of the Crime Act 1997 was incompatible with Article 6 on the European Convention on Human Rights. Therefore, the Human Rights Act could constrain the sovereignty of Parliament to some extent, where statutes are incompatible with the Human Rights Act.

Parliamentary Sovereignty and the European Union

Nevertheless, it is considered that Parliament can still remain the sovereign legal body for the creation of UK laws in the British constitution. The fact that the UK has decided to leave from the European Union, through the process of Brexit, suggests that the European law will no longer override the UK law. According to Article 50 of the Treaty on EU, any member of the European Union could withdraw with its own constitutional requirements. As stated in Miller, the UK Parliament and not the government should have the power to trigger Article 50 for the exit of the UK from the European Union, emphasizing in this way the supremacy of the UK Parliament.

Conclusion

Overall, the doctrine of Parliamentary Sovereignty has been limited to some extent, as the UK must now legislate consistently with the European law since it is a member of the European Union. However, the fact that the UK has decided to withdraw from the European Union suggests that the European law will no longer prevail in the UK and that Parliament will remain the fundamental body in the UK constitution. Nevertheless, considering that the UK remains a member of the European Union, the UK Parliament will not have complete authority over the British constitution, as its decisions and actions should be consistent with the legislation in the European Union.