영국헌법의 변화: 웨스터민스터 의회는 여전히 주권자인가?

The primary rule of the UK constitution is that its Parliament in London is the absolute sovereign of the whole country: the UK courts cannot declare any statute or Act of the Parliament unconstitutional or void because the UK has no written constitution which will impose some restraint on the law-making power of the Parliament. This is the very principle of the Supremacy(or Sovereignty) of the Parliament. Here, the Parliament, or officially "the Queen in Parliament", is composed of three parts: the Queen, the House of Lords and the House of Commons. Theoretically speaking, the Queen is still supreme in the sense that no bill that has passed through the two Houses cannot be a statute or an Act until it has received the royal assent. However, there is a constitutional convention that the Queen refrains from refusing to sign any bill finally put upon her official desk: although as such not a constitutional 'rule', this has not been broken for a long time, and nobody thinks of the possibility that the Queen might break it. However, although apparently looking stubborn, the Sovereign of Westminster is responding in a flexibly way to the changing realities inside and outside the country. As long as there is no change in the political realities on the European Continent, the UK won't think of leaving the European Communities or the European Union. And in sofar as the "European Communities Act 1972" (as amended) continues to exist, the UK judges will apply the EC law even if it conflicts with the UK law(which has been made by the sovereign), and ask the European Court about the questions concerning the validity and/or interpretation of the EC legal provisions they face in the course of hearing: this is the so-called preliminary reference procedure. As far as the judicial review and interpretation of the EC law is concerned, the European Court is the supreme court of the UK. "The Human Rights Act 1998" is another judicial innovation. The UK was the first country to ratify the European Human Rights Convention of 1950 but had not incorporate it into the domestic law of the UK until recently, which means that citizens and people could not rely on the Convention before the UK courts. The Act of 1998, now, enables the common people of the UK to sue the public authorities when they think they have suffered from the violation of the European Human Rights Convention by such authorities. However, a line was drawn at the power of the UK courts: they are only empowered to declare incompatibility, not invalidity, when they are satisfied that the UK legislation in question is incompatible with the Convention rights; such a judicial declaration of incompatibility “does not affect the validity, continuing operation or enforcemet” of the legislation in question and “is not binding on the parties to the proceedings in which it is made.” It remains basically the discretion of the Parliament to remedy such incompatibilities. Thus, the core of the principle of the Parliamentary Supremacy has not been touched. The Parliament, -to wit, the sovereign of the UK, is legally able to abrogate the two Acts, and if such a thing happens, the UK courts will have no alternative but to return to the "ancient regime." But such political dramas won't happen insofar as the political developments within the UK and on the European Continent don't stop.