‘Is Parliament sovereign?
We seem to be hearing a lot about ‘Parliamentary sovereignty’ nowadays
A large number of our pitiful MPs constantly pronounce on the ‘sovereignty of Parliament’ at every opportunity in their desire to block and reverse the expressed will of the people. Yet everyone knows that EU law is supreme whilst we remain members.
EU regulations and decisions and some Directives (if not implemented by the deadline for Brexit) have a direct effect on our law, bypassing any scrutiny by our legislature. Directives must be translated and implemented into our domestic law. How can our Parliament claim to be sovereign when it has to follow the directions of a foreign power?
The existence of Parliament depends on it being sovereign. It is ‘The Queen in Parliament’. The sovereignty of the people is vested into (i.e. loaned) to elected representatives of the people to act on their behalf. It has unlimited power, thus ‘control’ by the people is exerted by periodic elections. Well, that’s the theory anyway.
How Parliament has constrained itself
As noted above, Parliament has unlimited power. It can only be constrained by itself. Therein lies the answer as we look back to the increasing contortions and sophistry used since we were taken into the EEC and the famous ‘no loss of essential sovereignty’ to claim that Parliament is sovereign.
Going back to the European Communities Act 1972 (ECA), which only passed by 8 votes, the bottom line was that the constraints on Parliament’s power that the Act brought about were voluntary, temporary and retractable. Therefore Parliament was still sovereign as we could leave at any time and repeal the legislation.
At each new Treaty, Maastricht, Amsterdam, Nice, and Lisbon, more contortions came to ‘protect’ the so-called sovereignty of Parliament, the essence of its existence. Some by ratification clauses in the Treaties, others by Acts of Parliament culminating in the European Union Act 2011. The question that one has to ask, is whether these are merely authorisation mechanisms or maintenance of ‘control’ and the ability to exercise sovereignty?
Theoretically and technically, Parliament is able to pass any law even if it does not comply with EU law as long as it clearly states so, so Parliament is sovereign. OR IS IT?
The fishy business of EU law
Back in 1991, there was the Factortame case which demonstrates the Catch 22 position that we now find ourselves in. 95 Spanish fishing vessels, formerly registered as ‘British,’ were not able to comply with the new re-registration requirement of predominantly British ownership contained in the Merchant Shipping Act 1988. This was because they were managed and controlled from Spain. They challenged the Act on the basis of breach of the EC treaty (discrimination by nationality).
Following an ECJ ruling — that the UK lost, no surprise — the Lords ruled that parts of the Act must be set aside, despite the Act being passed by our ‘sovereign’ Parliament. Lord Bridges famously stated that “whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary”. Thus the paradox was maintained. Parliament was ‘still’ sovereign whilst accepting the supremacy of EU law.
Does it sound like Parliament is sovereign to you?
Does it sound like Parliament is sovereign to you? Reality indicates otherwise, despite the legalistic contortions and sophistry to persuade us otherwise. If Parliament has ‘voluntarily’ ceded lawmaking sovereignty to the EU (eg Factortame), the key function of Parliament, what is left of Parliamentary sovereignty? The only thing that remains is the vested sovereignty of the people. And this was clearly exercised on 23rd June 2016.
One thing is clear. On our exit from the EU and the repeal of the European Communities Act 1972, Parliament will again become ‘fully’ sovereign. It really is bewildering to see MPs protecting the sovereignty that they have ‘voluntarily’ ceded to a foreign power, yet resisting and fighting the source of their remaining sovereignty that still exists — that temporarily transferred from the people. Anyone might think that they are afraid of being responsible and accountable or just not up to the job.
The current claims that Parliament is sovereign is an illusion masked by legalistic contortions to maintain the facade.
Is it deliberate deception?
If this is deliberate deception, to what end? The answer may lie in the most vociferous devotees who claim that Parliament is currently sovereign. They all appear to be those that want to remain in the EU and are resisting the restoration of ‘temporary’ ceded powers.