Are laws only valid if enacted by a sovereign power?

Question

Are laws only valid if enacted by a sovereign power?

Answer

Typically, within the UK, legislation must be enacted by a sovereign power i.e. Parliament. However, there are a number of circumstances in which many scholars argue that law is being created without its direct enactment by Parliament. Below are three examples of such situations.

Scots Law

There has been debate as to whether Parliamentary legislation would in fact be able to repeal the Union Act 1707 which provides Scotland with its constitution or ‘Scots Law’. Although it was conceded by the Lord Advocate in MacCormick v Lord Advocate, that an Act of Parliament could not change/alter certain parts of the Union Act. It was ultimately decided that domestic courts were not in any position to rule on such matters. The Parliamentary Sovereignty issue that arises here, is that if an Act were created that directly conflicted with fundamental parts of the Act of Union, could it be found to be constitutionally incompatible?

Devolution of Power

The UK Parliament has also bestowed power on other bodies to create primary legislation. These bodies are known as devolved powers; an example would include the Welsh Assembly (Government of Wales Act 1998/2006). Their powers are limited by the Act of Parliament that provides them with their regulatory framework. As mentioned above, there are limits and controls on devolved power, however, as long as the law created remains within the framework provided, direct Parliamentary approval is not needed.

The Human Rights Act 1988

The Human Rights Act when introduced by Parliament, permitted the European Convention on Human Rights to directly influence domestic law. When a situation arises in a court where legislation enacted by Parliament is relied upon that contradicts with the ECHR (or precedent set in the ECtHR) a judge is permitted to make a ‘declaration of incompatibility’. Such a declaration does not allow the direct overruling of the legislation in question, it permits the ECtHR to review the case and potentially declare the legislation incompatible. If declared incompatible it is often the case that Parliament will amend the law in question, as to better suit the precedent set in the ruling.

References

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended)

Government of Wales Act 1998

Government of Wales Act 2006

MacCormick v Lord Advocate 1953 SC 396

Union Act 1707

The Human Rights Act 1988