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The doctrine of the sovereignty of the parliament is a unique provision in the constitution of the United Kingdom (U.K). A clear stipulation of the principle can be drawn from the assertion by Dicey that the Acts of the U.K.’s parliament are the supreme law of the land.1 Even though the statement has been termed as conservative and overtaken by time, to date the parliament has remained to be the only organ that makes laws to govern the other arms of government.2
However, the traditional understanding of the parliament’s sovereignty as defined by Dicey has been subject to intense pressure from interpretations of acts passed in the parliament, use of precedent cases and the legal provisions of the European Union (EU) that in effect are binding to all member states. As such, the notion that the sovereignty of the parliament is ‘clear cut’ as dictated by Dicey seems to have been overtaken by some decisions made by judges. This paper delves into whether parliament sovereignty in the U.K. is being undermined by the judges by exploring areas and cases where there is particular interaction between the roles of the courts and that of the parliament. A case in point is the use of statutory interpretation and precedence and the implication of the Human Rights Act of 1998.
Definition of Parliament Sovereignty
Parliament sovereignty connotes that only the legislature has the power to make laws that bind the executive and judicial bodies.3 Despite the provisions of the common law in which the constitution remains supreme and the courts have the autonomy to make interpretations of the constitution; this legal aspect is contrasted in the U.K’s parliament sovereignty. This implies that courts cannot overrule the legislation passed in the parliament and that it is the only parliament that can change the laws.4 Further, it shows that an Act of parliament is absolute to the courts but not absolute to the parliament.5 A parliament can always amend legislations it makes; thus, it has the sole mandate to make and unmake any law and no other body should take that mandate from it.
The ‘clear cut’ role of the parliament is imperative in upholding the doctrine of power separation because it creates a system in which the keystone of the law is vested on the Westminster Parliament.6 This is very important as it cuts a clear direction of the political institutions and ensures that there is a clear mandate of each institution in relation to the law of the land.7 This is especially the case when it comes to the relationship between the judiciary and the legislation; hence, the ruling to uphold the supremacy of parliament in case of Burmah Oil v Lord Advocate.8 The effect created is that courts have no legal mandate to question or overrule acts of parliament unless the laid down procedures for passing the statutes were not adhered to.9 For example in the case Edinburgh & Dalkeith Railway Co. v Wauchope, the ruling by Campbell upheld the doctrine of separation of power and recognized the supremacy of the parliament; hence, avoided the possibility of legal antagonism between the parliament and the court.10
Making Laws through Interpretation and Precedent
As deduced from the definition of the sovereignty of the parliament, it is clear that the lack of the codified constitution in the U.K. has given the emphasis on the doctrine of the parliamentary supremacy. However, law scholars hold the view that absolutist description of the law has been overtaken by time; in fact, there is a legal lacuna due to the nature of the law in which judges have the mandate to make interpretation to statutes and use precedent cases in their determinations. The use of the precedent by judges to some extent is considered as usurping the sovereign powers of the parliament. For instance, in cases such as murder and negligence, judges use examples of past cases as legal principles to deal with similar cases. Some legal determinations of the higher courts become precedent in the lower courts.
Also, judges can make decisions in situations where there appear to be no precedence or any guiding rule; therefore, they use their own discretion which in most cases is void of the statutory provisions. In such instances, judges decide not on precedence but on principle.11 In the case A.G v Butterwort, Lord Denning stated “It may be in the books, but if this be so all I can say is that the sooner we make the better”.12 The statement shows the application of discretion by judges to solve issues by creating laws, i.e. on principle to decide complex cases that their nature was not foreseen by the parliament.
Similarly, judges make laws through the interpretation of statutory laws. Even though this is a common trend where the legislature makes the law and the judges interpret it, there are instances where such legislations are ambiguous and it is upon the judges to make interpretations.13 Therefore, to some extent, the judges make interpretations that in effect are laws. It is also important to note that as time change, new interpretations of the law are required and judges have to play a creative role in interpreting the laws.14 In the case Aredale NHS v Bland, the petitioner questioned whether it was lawful to end the artificial feeding and drugs supply to Mr. Bland.
Stopping the supply would have resulted in immediate death. The members of the House of Lords found out the case raised social and moral issues that were not covered in the related acts of parliament.15 Even though it was the mandate of the parliament to decide the case or make legislations to address the new challenge, the court made a decision in interest of Mr. Bland. In doing so the judge not only contributed in the interpretation of the law but was involved in the legal development of the law. However, it is worth noting that this is not an absolute provision in which judges can make laws at the behest of their convenience, a lot of caution is applied as there are limitation as dictated in the doctrine of separation of powers. The case of Aredale NHS v Bland is an example of instances where the judges have leaned to the mandate of making laws through interpretation.
There are limitations to the extent in which the judges can make laws either through the interpretation or precedence. Lord Steyn noted, “There is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which is has not previously been authoritatively laid down that such law is applicable”16.
Law should be clear and explicit, but this is not always the case due to use of ambiguous phases or broad terms. Statutory interpretation entails the process in which the courts interpret and apply legislation. Statutory interpretation gives the judges the autonomy to develop laws in line with the intentions of the parliament.17 The statutory interpretation makes it possible for judges to deal with situations that the parliament had not foreseen. Besides, the statutory interpretations are crucial as they provide decisions that relate to regional directives that could create legal crisis if a clear judgment is not made, for example in the case Pickstone v Freemans Plc.18
The European Union and Human Rights Convention has had an effect on the domestic that has blurred the sovereignty of the UK’s Parliament. The statutory interpretation by judges of the Convention mirrors the provisions of the Human Rights Act of 1988. The Act gives the judges in the European Union a legal obligation to make interpretations of the law that uphold the Community’s law.19 Therefore, this can result in making some Acts of parliament null if they violate the Convention. This is because the European Union dictates that the community’s law is supreme in the U.K.
Even though this does not annul the law or acts passed by the U.K’s parliament, it gives the judges the power to make the parliament repeal the law where it is deemed to be offending community’s law.20 Section 4 of the Human Rights Act of 1988 allows the judges to interpret the law beyond the conventional domestic law.21 This implies that a judge can read an act not based on the intention of the parliament but in a way that it is deemed conventional with Convention rights. There is the concern that in light of the HRA of 1998 and the Convention, judiciary had become impermissibly creative to an extent that judges are amending legislations instead of interpreting them.22
It is important to note that in the light of the HRA Section 4, it only gives a new way in which judges can interpret legislations but does not enshrine any provision for striking down any form of legislation. This provides the balance that is required as provided in the doctrine of power separation in the U.K. which limits the powers of the judges.23 This brings in the importance of repeal as established in the R (Anderson) v Secretary.24 Despite these cases in which interpretation was maintained in the confines of the parliaments supremacy, in the case Regina v A (No 2) there were arguments by Lord Steyn that there was the need for the judiciary to be ‘radical’ in interpreting the laws in order to find a legislation compatible with the rights as outlined in the convention.25 26
EU law is held supreme by all its member states, therefore, which denotes that in rulings where a case takes the dimension of regional instead of the domestic inclination, judges rely on the EU legislation which is considered victorious. For instance in the Factortame litigation which has been defined as a clear precedence, the judgment upheld the supremacy of EU law over that of its member; in essence , this subordinated the Acts of parliament in the U.K.27 The case has been used as precedence in other rulings such as Costa vs ENEL.28 The essence of the cases is that they convey rights based on the European Union and Human Rights Convention which signify that the Sovereignty of the Parliament has been watered down by regional treaties and the changing time.29 However, the powers of the judges in the use of precedence in the light of the regional treaties is only limited to cases that go beyond domestic law. Therefore, judges still have to abide by the statutory provisions of the supreme parliament when addressing domestic matters.
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Is It Good for Judges to Make Law?
The rightful role of judges is to interpret the law neutrally as per the intentions and the meaning envisioned by the framer of the law.30 Even though judges can use their discretion to creatively interpret laws and in principle make laws, this should be limited only to ambiguous cases and in instances where there is no convenience of repeal. Allowing judges to make laws is tantamount to judicial activism in which personal preference is used in making rulings.31 It is important that in any common law jurisdiction, rule of law is realized through separation of powers. This protects the integrity of the law of the land. Therefore, it is my opinion that judges should stick to the text of the law as passed by the parliament. Therefore, very little power should be allowed where convenience of repeal is not contextually possible at the time of the case.
It is evident that the sovereignty of the parliament is the basis of the basis of the doctrine of separation of power that is critical in ensuring sanity in the political institutions. It gives the parliament the sole mandate to make laws. In cases where ambiguity in the statutes occurs, the judges have the legal mandate to interpret the law as per the intentions of the parliament. However, in some complex circumstances, judges have had to make laws by interpretation and use of precedence in principle which has been seen as usurping the powers of the parliament. It is also evident that the sovereignty of the parliament has been blurred when cases are of regional nature and the provisions of the EU law make it victorious of that of member states. Nevertheless, in the domestic circles, status quo should be maintained; judges should avoid judicial activism as it negates neutrality that should exist between the government arms.
A-G v Butterworth  1 QB 696 252 (AG) Airedale N.H.S. Trust v Bland  AC 789 (HL)
Bellamy Richard, ‘Political Constitutionalism and the Human Rights Act’ (2011) 9 IJCL 1.
Benwell Richard and Oonagh Gay,‘The Separation of Powers’ (2011) 15 PCC.
Burmah Oil Company Ltd v Lord Advocate  AC 75.
Dicey Albert, The Law of Constitution (Liberty Fund Inc 2000).
Elliot Mark, ‘United Kingdom Bicameralism, sovereignty, and the unwritten Constitution’ (2007) 5 IJCL 2.
Finch Emily and Fafinski Stefan, Legal Skills (5th edn, OUP 2015).
Flaminio Costa v ENEL (Case 6/64)  ECR 585.
Gordon Michael, ‘The Conceptual Foundations of Parliamentary Sovereignty: Reconsidering Jennings and Wade’ (2009) PL 519-520.
Hanson Sharon, Learning Legal Skills and Reasoning (4th edn, Routledge 2016).
Kellerman Miles, ‘UK Membership in the European Union: Undermining Parliamentary Sovereignty?’ (2011) Student Pulse 3.
Kermit Roosevelt and Richard Garnett, ‘Judicial Activism and Its Critics’ (2006)155 U. Penn 112.
Martin Jacqueline, The English Legal System, (3rd Ed. Hodder & Stoughton 2002)
Maunsell v Olins  AC 373 (HL).
Partington Martin, Introduction to English Legal system 2016-2017 (OUP 2016).
Pickstone v Freemans plc  AC 66 (HL).
Praxton Michael, ‘The Concept of Legislation: Jackson v Her Majesty’s Attorney General’ (2006) 69 MLJ.
R (Anderson) v Home Secretary  UKHL 46 (HL) R.
R (Jackson) v Attorney General  1 AC 302,  (Lord Steyn).
R v Secretary of State for Transport, ex parte Factortame  2 AC 603 (HL).
Regina v A  UKHL 25;  1 AC 45.-16.
Regina v A (No 2) (HL(E))  1 AC 68,  (Lord Steyn).
Rivlin Geoaffrey, First Steps in the Law (7th edn, OUP 2015).
Sales Philip, ‘Judges and Legislature: Values into Law’ (2012) CLJ 294.
Slorach Scott, Embley Judith, Goodchild Peter and Shepard Catherine, Legal System & Skills (2nd edn. OUP 2015).
Turpin Colin and Tomkins, Adams, British Government and the Constitution: Text and Materials (6 edn, CUP 2007).
Wilson Steve, Rutherford Helen, Storey Toney, and Wortley Natalie, English Legal System (2nd edn, OUP 2016).
Webley Lisa, Legal Writing (4th edn, Routlegge 2015).
Young Alison, Parliamentary Sovereignty and the Human Rights Act (Bloomsbury Publishing 2008).
- Albert Dicey, the Law of Constitution (Liberty Fund Inc 2000).
- Colin Turpin and Adam Tomkins, the British government and the constitution: text and materials(6 edn, CUP 2007)
- Steve Wilson, Helen Rutherford, Toney Storey and Natalie Wortley, English Legal System (2nd edn, OUP 2016)
- Mark Elliot, ‘United KingdomBicameralism, sovereignty, and the unwritten Constitution’ (2007) 5 IJCL 2
- Geoffrey Rivlin, First Steps in the Law (7th edn, OUP 2015)
- Martin Partington, Introduction to English Legal system 2016-2017 (OUP 2016)
- Lisa Webley, Legal Writing (4th edn, Routlegge 2015)
-  AC 75
- Sharon Hanson, Learning Legal Skills and Reasoning (4th edn, Routledge 2016)
- Richard Benwell and Gay Oonagh, ‘The Separation of Powers’ (2011) 15 PCC
- Michael Plaxton, ‘The Concept of Legislation: Jackson v Her Majesty’s Attorney General’ (2006) 69 MLJ 2.
-  1 QB 696 252 (AG)
- Colin Turpin and Adam Tomkins, the British government and the constitution: text and m
- Scott Slorach, Judith Embley, Peter Goodchild and Catherine Shepard, Legal System & Skills (2nd edn. OUP 2015).
-  AC 789 (HL)
- (No 2) (HL(E))  1 AC 68, 
-  AC 373 (HL)
-  AC 66 (HL)
- Michael Gordon, ‘The Conceptual Foundations of Parliamentary Sovereignty: Reconsidering Jennings and Wade’ (2009) PL 519-520.
- Miles Kellerman, ‘UK Membership in the European Union: Undermining Parliamentary Sovereignty?’ (2011) Student Pulse 3.
-  UKHL 25;  1 AC 45
- Richard Bellamy, ‘Political Constitutionalism and the Human Rights Act’ (2011) 9 IJCL 1.
- Alison Young, Parliamentary Sovereignty and the Human Rights Act (Bloomsbury Publishing 2008).
-  UKHL 46 (HL)
- (HL(E))  1 AC 68, .
- 2006] 1 AC 302, 
-  2 AC 603 (HL).
-  ECR 585
- Jacqueline Martin, The English Legal System, (3rd Ed. Hodder & Stoughton 2002)
- Philip Sales ‘Judges and Legislature: Values into Law’ (2012) CLJ 294.
- Roosevelt Kermit and Garnett Richard, ‘Judicial Activism and Its Critics’ (2006)155 U. Penn 112