Critically discuss the doctrine of Parliamentary Sovereignty by reference to relevant case law

In countries with a written constitution, it is the codified constitution document which is the pinnacle of their legal systems and it is that which bestows legal validity on other laws. However, this is not the same with the UK- a country which has an uncodified constitution. It is instead, the principle of parliamentary sovereignty (PS) which functions at the apex of the legal system. It means that Parliament is the only supreme legal authority that can create or end any laws in the UK. Political constitutionalists believe that this principle ensures democratic legitimacy of laws and thus should continue to be the ‘centrepiece’ of the British constitution. I will first examine the limitations placed on the doctrine of parliamentary sovereignty. The state membership of the EU has meant that certain EU institutions have law-making powers. They do this by regulations (directly applicable measures to achieve objective legal standards in all member states) and directives (member states have discretion as to how to achieve the result). This indicates that the power stated to lie solely with Parliament has been compromised with the state’s EU membership. Costa v Enel gives authority to the proposition that where there is a conflict between national and EU law, it will be EU law which will be applied. This was before the UK joined the EU. Therefore, the rights conferred on individuals by EU law, even if they are wider than statutory rights in member states, can directly be pleaded in national courts. Macarthy’s v Smith illustrates that the courts will depart from the traditional literal approach to statutory interpretation if the statute is in conflict with EU law to avoid conflicts. This compromises the doctrine of Parliamentary sovereignty because Factortame is another key case. It involved deciding whether the Merchant Shipping Act 1988 is incompatible with the EU law about freedom of establishment. Whilst the matter was referred to CJEU, the issue of whether Factortame and others could apply for interim relief against the Crown and also prevent the operation of the Act. The Court of Appeal held that they could not as statutes could not be ‘disapplied’. This decision was reversed by the CJEU, reasoning on the basis that as community law takes precedence over national law, all rights (even if temporary) should be protected. This can be seen as a shift from the traditional view of PS. On the other hand, Parliamentary sovereignty has been recognised time and time again by the courts. In British Railways Board v Pickin, it was emphasised that the courts could not look at the way the legislation in question was passed to consider the allegation of procedural impropriety made by the respondent. Nonetheless, in R (Jackson) v Attorney- General, the courts were prepared to consider the legislative procedure. However, the courts justified that this was a justiciable matter in contending that this was on the basis of the correct interpretation of the 1911 Act and so was not in breach of Bill of Rights 1689. Furthermore, another illustration of the principle of parliamentary sovereignty being absolute is by The Burmah Oil case which demonstrates the superiority of statutory provisions over prerogative powers. In the case, British Army blew up the oil stocks of the company and the company later sought compensation from the Crown. The House of Lords ruled that compensation had to be paid. However, the War damages Act 1965 was passed to reverse this decision and protect the Crown from paying compensation. This illustrates how the statute has powers to take property without compensation but the prerogative does not. In conclusion, in my opinion, although it can be seen as if UK is becoming detached from the orthodox view of PS due to its EU membership, this is not entirely the case. Constitutional academic William Wade rightly suggested that it is far-fetched to state that the Factortame judgement amounted to a ‘revolution’. The courts were prepared to ‘disapply’ the statutory provision because they were authorised to do so by the ECA ‘72- an act of parliament. Therefore, they are still following PS- which is absolute. (Sorry, exam questions for Law A Levels are quite long and require essays so I have tried to condense the answer as much as I could but could not make it one/two paragraphs long!)