This essay examines the influence of the incorporation of the Lisbon Treaty to the UK law on one of the fundamental principles of the UK constitutional system – the doctrine of parliamentary sovereignty (also called supremacy). The essay is divided in three main sections. The first explores the doctrine of parliamentary sovereignty and defines its meaning. Then it focuses on the accession of the UK to the European Communities in 1973 and its impact on the principle. Finally, the British regulations incorporating the Lisbon Treaty to the UK law are analysed.
The doctrine of parliamentary sovereignty (or supremacy) is one of the fundamental principles of the constitution of the United Kingdom. For some academics it is even the most important one. It is the doctrine of parliamentary sovereignty which explains why there is no codified constitution in the UK. If British Parliament is sovereign, then the constitution and law is what the Parliament enacts. The doctrine was first described by academics in the 19th century. However, in the post-war UK history, especially the latest history, the principle of parliamentary sovereignty has been put under strain as a result of some of the constitutional reforms enacted by Labour governments in 1970s and at the turn of the 20th century. Going back to 1970s the major constitutional implications had the British entry into the European Communities.
The purpose of this essay is to analyse the impact of incorporating the Lisbon Treaty to the UK legal system on the doctrine of parliamentary sovereignty. Therefore, the first section defines and explores the constitutional principle of parliamentary sovereignty; the second describes in short the challenges for the doctrine caused by the accession of the UK to the European Communities; finally, before summarising and concluding with some future reflections, the essay focuses on the incorporation of the Lisbon Treaty to the British legal system and its impact on the doctrine. All the other reforms which placed the doctrine under strain, especially those enacted by Tony Blair’s government in late 1990s and early 2000s, are intentionally omitted, because they go beyond the aim of the essay and have little influence on the final deductions.
The British doctrine of parliamentary sovereignty is a very complex one. Therefore, it is essential to explain in the first place the meaning of basic terms such as ‘sovereign’ and ‘sovereignty’, and then the concept of ‘parliamentary sovereignty’. According to Merriam-Webster Dictionary a term ‘sovereign’ refers to a person “that exercises supreme authority within a limited sphere”. Originally this term denoted a monarch or a ruler. However, the meaning of ‘sovereign’ evolved in the Age of Enlightenment, when philosophers like Thomas Hobbes, John Locke, and Jean-Jacques Rousseau elaborated the ‘social contract’ theory. According to this theory the people were considered to be the legitimate sovereign, but they contracted their sovereignty to a ruler in return for his maintaining their safety. Hence, if the ruler failed to do this, the people were released from their obligation to obey him. According to the Penguin Dictionary of Politics (Robertson, 1986: 305) ‘sovereignty’:
“means the right to own and control some area of the world. It has nowadays nothing to do with monarchy […]. Its basic meaning is legitimate rule, as opposed to actual power.”
In democracies the understanding of the sovereignty is often connected with the rule of the people, thus one can talk about the sovereignty of the people. Although these two terms defined in that way are quite easy to understand, problems arise when an institution is designated as a sovereign instead of an individual or the people. This is because an institution such as parliament needs to be precisely defined. It is necessary to specify rules of working, nominating members and determining what is to count as a correct procedure or valid enactment. This view has been supported in the work of Bogdanor (2009: 280). He also states that “Parliament is sovereign only when it acts in a certain manner prescribed by the rules” (Bogdanor 2009: 280–281). But what does it mean that Parliament is sovereign?
Probably the first person who described the sovereignty of Parliament as one of the fundamental features of the constitution of the UK was a British constitutional lawyer Albert Venn Dicey. In his book, An Introduction to the Study of the Law of the Constitution, Dicey (1959: 40) explains that the principle of parliamentary sovereignty means that Parliament has:
“the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament”
The first implication of Dicey’s definition is that the courts cannot overrule the legislation of Parliament. The second implication is that no Parliament of the day can pass laws that future Parliaments cannot change. For Dicey (1959: 39) the doctrine of parliamentary sovereignty was “from a legal point of view the dominant characteristic of our political institutions”. Dicey’s understanding of this principle was, therefore, similar to that what is called the ‘rule of recognition’ and consequently made it the most important part of the British constitution; the rule which simply identifies other rules.
Although it is still strongly believed that the sovereignty of Parliament is the central principle of the British constitution, many theorists argue that British and every other legal system is based on more than one fundamental principle and it is hard to grade them. For instance Barber (2000: 137) claims that “the English legal system possesses multiple unranked sources of legal power” and “that neither Kelsen's Grundnorm nor Hart's rule of recognition can be accepted as universal truths of legal systems”. One of the other crucial principles of the British constitution is the rule of law (Garnett & Lynch, 2009: 118). This principle consists of ‘two sovereignties’ (Bradley, 2004: 27). The first one is the sovereignty of Parliament and the second is the sovereignty of the courts. However, the former refers to ‘law making’, and the latter to ‘interpreting and applying the law’. Therefore, both courts and Parliament must coexist and it makes the principle of parliamentary sovereignty much more complicated. The quotation below illustrates it perfectly:
“the sovereignty of Parliament can be said to be based upon decisions of the courts in applying Acts of Parliament” (Bradley, 2004: 29)
The relation between the courts and Parliament will be brought up again in the part considering the accession of the UK to the European Communities and its impact on the doctrine of parliamentary sovereignty. Another vital issue which also has to be considered is the present-day perception of the parliamentary sovereignty. Both Bradley (2004: 58) and Bogdanor (2009: 283) distinguished the form and the substance of parliamentary sovereignty. In other words they divided the understanding of the parliamentary sovereignty into theoretical (form) and practical (substance). Nonetheless, it is essential to mention here about another famous British constitutional lawyer – Sir Ivor Jennings and his thoughts. He agreed with Dicey that the Parliament can enact legislation dealing with any subject (Jennings, 1959: 170) and that the legislation of the Parliament is superior to the jurisdiction of the courts (Jennings, 1959: 254). However, Jennings (1959: 170) claimed also that the supremacy of the Parliament exists only in theory, because it “is a legal fiction and legal fiction can assume anything”. To prove this he gave a famous example that:
“if Parliament enacted that all men should be women, they would be women so far as the law is concerned” (Jennings, 1959: 170).
This case shows that there is a disagreement between academics about the existence of the doctrine of parliamentary sovereignty in practice. For that reason, during the following sections only the theoretical aspect of the doctrine will be analysed.
The British government by virtue of the Royal Prerogative has power to enter into international treaties that bind the state. However, the doctrine of parliamentary sovereignty implies that no alteration of the rights of British citizens and all the other individuals within the UK can be done without the Parliament’s consent. These rights can be altered only by Acts of Parliament. For that reason, if the UK does not want to be in breach of its international obligations, the Parliament has to incorporate international law into UK law by enacting Acts. (Bradley, 2004: 41–42)
In 1972 the Parliament enacted the European Communities Act which incorporated the Community law into the British legal system. By doing this the Parliament incorporated also two revolutionary principles – the principle of direct effect and the principle of supremacy. The first one means that Community law1 is capable of conferring rights and duties directly on the individuals and national courts are obliged to interpret all legislation in compliance with the Community law. This doctrine was established by the decision of the European Court of Justice in Van Gend en Loos case in 1963. The supremacy of Community law was, on the other hand, established in 1964 by the decision of the ECJ in Costa v. ENEL case. It refers to the fact that Community law is superior to national laws. In other words, Community law takes precedence in the case of conflict with provisions of national law. Moreover, this is regardless the time when these provisions were made, so Community acts are superior even to those national acts which were enacted later. (Page, 2004: 37–38)
These two principles have had a great impact on the doctrine of parliamentary sovereignty. As it was mentioned before, one of the implications of parliament sovereignty is that the courts cannot overrule the legislation of Parliament. The accession of the UK to the European Communities has changed this. Although the Parliament voluntarily enacted the ECA 1972, the principle of parliamentary sovereignty has been put under strain. Since then the British courts have the power to review Acts of Parliament on grounds of incompatibility with Community/EU law (Page, 2004: 48–54). It was also said that the doctrine of parliamentary sovereignty implies that no Parliament of the day can pass laws that future Parliaments cannot change. Since the UK entered into the EC, every newly-elected Parliament is bound by the provisions of Community/EU law and has to obey all of those provisions.
Nevertheless, the defenders of the doctrine of parliamentary sovereignty claim that those limitations are voluntary and temporary, because theoretically the Parliament can at any time decide to withdraw from the EU. Furthermore, they emphasise the fact that all the new sources of primary EU legislation, especially the Treaties, have to be incorporated by Acts of Parliament. In other words, the UK will not be bound by a new Treaty until the Parliament wishes to approve it by enacting a particular Act.
As it was stated before the rights of individuals within the UK can be altered only by Acts of Parliament. Therefore, the Parliament had to enact an Act which incorporated the provisions of Lisbon Treaty to the UK law, so that these provisions are in force with regard to British territory. That is why in June 2008 the Parliament enacted the European Union (Amendment) Act 2008.
Taking the doctrine of parliamentary sovereignty into consideration, especially two clauses of that Act should be analyzed. These are clause 5 and clause 6. Clause 5 imposed new requirements for prior parliamentary authorization before the Government ratifies a treaty amending the founding Treaties of the EU. However, it applies only to the amendments made under the “ordinary revision procedure”. On the other hand, clause 6 imposed parliamentary control over the Government’s capacity to agree to amendments made under the “simplified revision procedure” or the passerelles (House of Lords, 2008: 10–15).
The term passerelle in general is a term used in the jargon of the EU and describes a category of provisions which permit alterations to the Treaties’ arrangements without invoking an ordinary procedure of their amendments. However, according to Nowak-Far (2010: 1–2) the Lisbon Treaty “has significantly expanded the scope of application of this specific formula and made it clear”. In the case of the revision of founding Treaties, the decision-making process in Council of the EU normally requires unanimity. Nevertheless, simplified revision procedure and passerelles allow in some cases a shift from unanimity to qualified majority voting. This shift makes it much easier to amend the founding Treaties. Hence, the British legislator tried to include in clause 6 all new provisions which allow a move from unanimity to qualified majority voting in the Council of the EU, so that the Parliament could control the Government in these cases (House of Lords, 2008: 14).
Both clauses are crucial for maintaining the principle of parliamentary sovereignty. At least from the legal point of view. The fact that the Government has to seek parliamentary authorization before ratifying any future changes to the founding Treaties makes it clear that the sovereign power theoretically belongs to the whole Parliament, whose legislation is the highest law in the UK. One can call into question this claim arguing that according to the principle of supremacy of EU law, it takes priority over any inconsistent national law. Nevertheless, the Lisbon Treaty introduced an important provision that explicitly confirms the right of Member States to withdraw from the EU (Article 50 TEU). This provision emphasizes the argument that UK remains bound by the EU law as long as the Parliament wishes to remain in the EU. Therefore, it can be stated that the incorporation of the Lisbon Treaty to the UK law have not put the doctrine of parliamentary sovereignty under additional strain and in theory this doctrine still prevails in the national law of the UK.
Another important issue is the Charter of Fundamental Rights of the European Union and the Protocol 7 (which provides for the application of the Charter to the UK and Poland). Article 6 TEU, as amended by the Lisbon Treaty, made the Charter legally binding. Hence, not only the European Court of Justice, but also national courts have to refer to the rights and principles included in the Charter while interpreting legislation. Many British and Polish politicians were afraid of the fact that the Charter was going to bound Member States with some ‘new rights’. In the UK, they also thought that it can additionally endanger the doctrine of parliamentary sovereignty. That is why the Protocol 7 arose as a kind of opt-out from the Charter. However, many academics and lawyers proved that in fact, the Charter is not innovative, does not create ‘new rights’ and just codifies existing ones, and the Protocol 7 merely clarifies the application of the Charter or even repeats the reservations included in Article 6 TEU (House of Lords, 2008: 20–23).
The place of the principle of parliamentary sovereignty in the UK has, in practice, definitely changed after accession to the European Communities. Although further amendments of the founding Treaties and integration processes undoubtedly have, from a practical point of view, bound the principle to a greater degree. Nevertheless, this fundamental principle, at least in theory, is still far from erosion. It is really hard to question the argument about withdrawal from the EU and the Parliament’s free will in deciding whether the UK should stay in the EU or not. It is true that Parliament, in practice, is not omnipotent and cannot do whatever it wants. But has it ever been omnipotent from that point of view? After all, according to Sir Jennings (1959: 170) “the supremacy of parliament is a legal fiction” and Parliament “cannot in fact change the course of nature” or “do all sorts of things”. The changes related to European integration and globalisation processes which influenced the UK political and constitutional system merely prove Jennings’ claim.
Marek Garlicki is a MA European Studies student at the Faculty of Journalism and Political Science, University of Warsaw, Krakowskie Przedmieście 26/28, 00–927 Warszawa, Poland. Email: firstname.lastname@example.org