Parliamentary sovereignty is an ancient concept central to the functioning of the constitution of the United Kingdom but which is also not fully defined and has long been debated. Since the subordination of the monarchy under parliament, and the increasingly democratic methods of parliamentary government, there have been the questions of whether parliament holds a supreme ability to legislate and whether or not it should.
Parliamentary sovereignty is a description of the extent to which the Parliament of the United Kingdom has absolute and unlimited power. It is framed in terms of the extent of authority that parliament holds, and whether there are any sorts of law that it cannot pass.[1] In other countries, a written constitution often binds the parliament to act in a certain way, but there is no codified constitution in the United Kingdom.[1] In the United Kingdom, parliament is central to the institutions of state. The concept is exclusive to the UK Parliament and therefore does not extend to the Scottish Parliament, the Senedd and the Northern Ireland Assembly.[2]
The traditional view put forward by A. V. Dicey is that parliament had the power to make any law except any law that bound its successors. Formally speaking however, the present state that is the UK is descended from the international Treaty of Union between England and Scotland in 1706/7 which led to the creation of the "Kingdom of Great Britain". It is clear that the terms of that Treaty stated that certain of its provisions could not be altered, for example the separate existence of the Scottish legal system,[3] and formally, these restrictions are a continuing limitation on the sovereignty of the UK Parliament. This has also been reconsidered by constitutional theorists including Sir William Wade and Trevor Allan in light of the European Communities Act 1972 and other provisions relating to membership of the European Union, and the position of the Human Rights Act 1998 and any attempts to make this or other legislation entrenched.[citation needed] These issues remain contested, although the United Kingdom has since ceased membership of the European Union and is no longer subject to its treaties.
The terms "parliamentary sovereignty" and "parliamentary supremacy" are often used interchangeably. The term "sovereignty" implies a similarity to the question of national sovereignty.[4] While writer John Austin and others have looked to combine parliamentary and national sovereignty, this view is not universally held. Whichever term is used, it relates to the existence or non-existence of limits on parliament's power in its legislative role.[4] Although the House of Commons' dominance over the other two components of Parliament (the King and the House of Lords) is well attested, "parliamentary sovereignty" refers to their joint power.[5] All legislation receives royal assent from the King, and almost all is passed with the support of the House of Lords.[6]
The Statute of Proclamations of 1539 gave the king wide powers to legislate without reference to, or approval from, Parliament. At the same time, it recognised the common law, existing statutory provisions, and excluded the breach of royal proclamations from the death penalty.[7] It was repealed in 1547, but Queen Mary and Queen Elizabeth both relied on royal proclamations. A review by Chief JusticeEdward Coke in 1610, the Case of Proclamations, established that Parliament had the sole right to legislate, but the Crown could enforce it.[7] The concept of parliamentary sovereignty was central to the English Civil War: Royalists argued that power was held by the king, and delegated to Parliament, a view which was challenged by the Parliamentarians.[7] The issue of taxation was a significant power struggle between Parliament and the king during the Stuart period. If Parliament had the ability to withhold funds from the monarch, then it could prevail. Direct taxation had been a matter for Parliament from the reign of Edward I, but indirect taxation continued to be a matter for the king.[8]
Royal powers were finally removed by the Bill of Rights 1689.[8] The Bill of Rights also removed the ability of the Crown to dispense with (ignore or suspend) legislation and statutes. Such a right had culminated in James II's Declaration of Indulgence of 1687, which had ushered in the Glorious Revolution.[9] That led the Earl of Shaftesbury to declare in 1689, "The Parliament of England is that supreme and absolute power, which gives life and motion to the English government".[10] The Act of Settlement of 1700 removed royal power over the judiciary and defined a vote of both houses as the sole method of removing a judge.[11]
Core theory
It was the view of A. V. Dicey, writing in the early twentieth century, that Parliament had "the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament". He refers to "England" but his view held for the other nations of the United Kingdom, with slightly different details.[11] This view however side-steps the issue of the limitations formally placed on Parliament when the United Kingdom was first established in 1706/7 and the English and Scottish Parliaments surrendered, or perhaps more correctly pooled, their sovereignty into the new state.
There are at least three suggested sources for this sovereignty. The first is sovereignty by Act of Parliament itself. One response, put forward by John Salmond was to reject this idea: he believed that "no statute can confer this power on Parliament for this would be to assume and act on the very power that is to be conferred". An alternative is to see sovereignty conferred by way of the repeated and unchallenged use of sovereignty through the promulgation of laws by Parliament.[12] The second possible source are the courts, that in enforcing all Acts of Parliament without exception, they have conferred sovereignty upon Parliament.[12] The third alternative is the complex relationship between all parts of government, and their historical development. This is then assumed to be continuous and the basis for the future. However, if sovereignty was built up over time, "freezing" it at the current time seems to run contrary to that.[13]
A group of individuals cannot hold sovereignty, only the institution of Parliament; determining what does and does not constitute an Act of Parliament is important. This is considered a "manner and form" requirement.[14] In the absence of a written constitution, it is a matter for the common law to make this determination.[14] The court does not consider any procedural defects of the bill if they are present; this is called the "enrolled Act" doctrine.[14] For example, the case of Pickin v British Railways Board was dismissed because it relied on the standing order process not having been fulfilled.[15]
However, the status of the Regency Acts is not so clear. In them, a regent acting during the infancy, incapacitation or absence of the monarch can assent to bills but cannot do so if they relate to changing the nature of monarchical inheritance or amending the Protestant Religion and Presbyterian Church Act 1707, which protected that church in Scotland.[16] If a regent did assent to a bill of these kinds, it may not be held to be a valid law even if it gained the approval of both houses and royal assent.[16]
Parliament may also make changes which impact successor parliaments as to their method of election and their constituent parts. For example, the Reform Act 1832 radically altered the distribution of MPs and subsequent parliaments followed the new rules. However, it remains open to any successor to legislate again to change these requirements, protecting its sovereignty. Similarly, only a reconstituted House of Lords could pass a bill reversing the changes of the House of Lords Act 1999 if its consent were required (unless the Parliament Acts were used).[17] However, the whole system of government could be abolished, and the next parliament would not be bound if it were not considered a successor.[18]
(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression " enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.[20]
Although not stated specifically (or even directly acknowledged by politicians) in the 1972 Act the principle of EU Law (previously Community Law) having primacy over the domestic laws of the member states also applied to the United Kingdom.
“Fact No 3: The British Parliament in Westminister retains the final right to repeal the Act that took us into the Common Market on 1 January 1973. Thus our continued membership will depend on the continuing assent of Parliament
A few days following the outcome of the referendum in which the United Kingdom had confirmed its continued membership “Yes” of the communities in a interview for the Daily Telegraph the then Ulster Unionist (UUP) MP for South DownEnoch Powell confirmed this assessment within the pamphlet on Parliament's role in the future of British EC membership: [21]
‘Never again by the necessity of an axiom, will an Englishman live for his country or die for his country: The country for which people live and die was obsolete and we have abolished it. Or not quite yet. No, not yet. The referendum is not a “verdict” after which the prisoner is hanged forthwith. It is no more than provisional … This will be so as long Parliament can alter or undo whatever that or any other Parliament has done. Hence those Golden words in the Government's Referendum pamphlet: “Our continued membership would depend on the continuing assent of Parliament”.’
The case of R v. Secretary of State for Transport ex parte Factortame is considered decisive as to the superiority of EU law over British law. It judged that the Merchant Shipping Act 1988 and section 21 of the Crown Proceedings Act 1947 (which prevented an injunction against the Crown) should be disapplied. Alongside R v Employment Secretary, ex parte EOC, these two cases establish that any national legislation, coming into force before or after the European Communities Act 1972, cannot be applied by British courts if it contradicts Community law.[22]
The Factortame case was considered to be revolutionary by Sir William Wade, who cited in particular Lord Bridge's statement that "there is nothing in any way novel in according supremacy to rules of Community law in areas to which they apply and to insist that... national courts must not be prohibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy", which Wade characterises a clear statement that parliament can bind its successors and is therefore a very significant break from traditional thinking.[23]Trevor Allan, argued, however, that the change in rule was accepted by the existing order because of strong legal reasons. Since legal reasons existed, the House of Lords had, instead, determined what the current system suggested under new circumstances and so no revolution had occurred.[24]
Section 18 of the European Union Act 2011 declared that EU law is directly applicable only through the European Communities Act or another act fulfilling the same role.
18. Status of EU law dependent on continuing statutory basis
Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.
Parliament legislated in 2018 to repeal the 1972 Act,[26] and in 2020 the United Kingdom ceased to be a member of the EU in accordance with and by virtue of that Act (albeit amended by further legislation of Parliament), demonstrating both that the previous Parliament (of 1972) had not bound its successor with respect to leaving the EU and also confirmed following the Parliamentary deadlock and the outcome of the 2019 general election the late Harold Wilson’s government view and Enoch Powell’s endorsement that the United Kingdom’s membership of the EU was dependent on the continuing assent of Parliament.
All provisions of the 1972 Act were repealed on 31 January 2020 at 2300 GMT although a amendment in the European Union (Withdrawal Agreement) Act 2020 saved the effect of the 1972 Act until the end of the implementation period which came to an end on 31 December 2020 at 2300 GMT.
Some jurists have suggested that the Acts of Union 1707 place limits on parliamentary sovereignty and its application to Scotland. Although no Scottish court has yet openly questioned the validity of an Act of Parliament, certain judges have raised the possibility. Thus, in MacCormick v. Lord Advocate, the Lord President (Lord Cooper) stated that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law", and that legislation contrary to the Act of Union would not necessarily be regarded as constitutionally valid.[27][28][29] Also, in Gibson v Lord Advocate, Lord Keith was circumspect about how Scottish courts would deal with an Act, which would substantially alter or negate the essential provisions of the 1707 Act, such as the abolition of the Court of Session or the Church of Scotland or the substitution of English law for Scots law.[30]
The establishment of the Scottish Parliament in 1998 has implications for parliamentary supremacy. For example, although nuclear power is not within its competence, the Scottish government successfully blocked the wishes of the UK government to establish new nuclear power stations in Scotland using control over planning applications which is devolved.[31][relevant?] While it remains theoretically possible to dissolve the Scottish Parliament, in practice such a change would be politically difficult.[citation needed]
Development
Parliament Acts
The accepted rule is that the bill must be signed by both Houses of Parliament and be granted royal assent,[14] unless the Parliament Act procedure has been properly enacted.[16] The Parliament Acts create a system of passing a bill without the consent of the Lords. That system does not however, extend to private or local bills, nor bills extending the length of a parliament beyond five years.[16] However, despite the granting of the Speaker's Certificate, certifying the act to be valid, the validity of an act passed under the Parliament Acts may still be challenged in the courts.[16] In Jackson v Attorney General, the judges decided by a seven-to-two majority that an Act that extended the life of a parliament would be considered invalid by the courts if it had been passed under the Parliament Act procedure.[32]
Human Rights Act
The Human Rights Act 1998 confirmed the UK's commitment to the European Convention on Human Rights.[22] In a white paper, the government expressed that "to make provision in the Bill for the courts to set aside Acts of Parliament would confer on the judiciary a general power over the decisions of Parliament which under our present constitutional arrangements they do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament".[33] According to the theory that a parliament cannot bind its successors, any form of a Bill of Rights cannot be entrenched, and a subsequent parliament could repeal the act.[22] In the government's words, "[It is our tradition] to allow any Act of Parliament to be amended or repealed by a subsequent Act of Parliament."[33] However, it would have been possible to apply human rights rules to previous (rather than future) legislation.[22] The government also confirmed that it had no plans to devise a special [entrenchment] arrangement for the bill.[33]
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. —Human Rights Act 1988, s. 3.
Section 3 of the Human Rights Act 1998 requires UK courts to practice "reading down" in order to apply national law consistently with the European Convention on Human Rights. "Reading down" is a practice in law, by which the judge first assumes that a law complies with the constitution, and thereafter finds an interpretation of the law which is "sufficiently narrow" so as to be constitutional [34][35]. It is usually practiced on laws which are written in extremely broad or all-encompassing ways [36][37]. The principle of reading down aims to preserve parliamentary sovereignty by minimizing conflicts between UK law and the ECHR, without allowing the courts to strike down primary legislation.[38] Legislation can be found to be incompatible, if reading down is impossible or would effectively change the legislation itself.[39] In that case, the court will issue a "declaration of incompatibility," which is non-binding upon parliament by the doctrine of parliamentary sovereignty.[40] However, legislation declared incompatible is almost always amended by parliament.[41]
Jackson v Attorney General
In Jackson v Attorney General, the appellants questioned the validity of the Parliament Act 1949. There were various arguments put forward by the appellants who were represented by Sir Sydney Kentridge QC. All nine judges accepted that the court had jurisdiction to consider whether the 1949 Act was valid.[32] They looked to distinguish the case from that of Pickin v British Railways Board, where the unequivocal belief of the judges had been that "the courts in this country have no power to declare enacted law to be invalid". The judges believed that whereas Pickin had challenged the inner workings of Parliament, which a court could not do, Jackson questioned the interpretation of a statute.[42]
R. v. Chaytor
The UK Supreme Court on 1 December 2010, in the Chaytor judgment, gave her first ruling on the parliamentary system. Approaching the procedural privilege of exclusivity and absolute pre-eminence of the chamber as a judge of its internal affairs (exclusive cognisance), the judges dated back to 1812 to refute the belief that the judge cannot examine in court fact happened within the House walls and to refute the belief that the contempt of Parliament is always and in any case the only way to face issues raised by the conduct of third parties not belonging to the Houses.[43]
(1) It is recognised that the Parliament of the United Kingdom is sovereign.
(2) In particular, its sovereignty subsists notwithstanding—
(a) directly applicable or directly effective EU law continuing to be recognised and available in domestic law by virtue of section 1A or 1B of the European Union (Withdrawal) Act 2018 (savings of existing law for the implementation period),
(b) section 7A of that Act (other directly applicable or directly effective aspects of the withdrawal agreement),
(c) section 7B of that Act (deemed direct applicability or direct effect in relation to the EEA EFTA separation agreement and the Swiss citizens’ rights agreement), and
(d) section 7C of that Act (interpretation of law relating to the withdrawal agreement (other than the implementation period), the EEA EFTA separation agreement and the Swiss citizens’ rights agreement).
(3) Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom. [44]
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, and may also legislate for the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster in London. Parliament possesses legislative supremacy and thereby holds ultimate power over all other political bodies in the United Kingdom and the Overseas Territories. While Parliament is bicameral, it has three parts: the sovereign, the House of Lords, and the House of Commons. The three parts acting together to legislate may be described as the King-in-Parliament. The Crown normally acts on the advice of the prime minister, and the powers of the House of Lords are limited to only delaying legislation; thus power is de facto vested in the House of Commons.
The Bill of Rights 1689 is an Act of the Parliament of England that set out certain basic civil rights and clarified who would be next to inherit the Crown. It remains a crucial statute in English constitutional law.
The European Communities Act 1972, also known as the ECA 1972, was an act of the Parliament of the United Kingdom which made legal provision for the accession of the United Kingdom as a member state to the three European Communities (EC) – the European Economic Community, European Atomic Energy Community (Euratom), and the European Coal and Steel Community ; the EEC and ECSC subsequently became the European Union.
The Scotland Act 1998 is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government. It was one of the most significant constitutional pieces of legislation to be passed by the UK Parliament between the passing of the European Communities Act in 1972 and the European Union (Withdrawal) Act in 2018 and is the most significant piece of legislation to affect Scotland since the Acts of Union in 1707 which ratified the Treaty of Union and led to the disbandment of the Parliament of Scotland.
Thoburn v Sunderland City Council is a UK constitutional and administrative law case, concerning the interaction of EU law and an Act of Parliament. It is important for its recognition of the supremacy of EU law and the basis for that recognition. Though the earlier Factortame had also referred to Parliament's voluntary acceptance of the supremacy of EU law, Thoburn put less stress on the jurisprudence of the ECJ and more on the domestic acceptance of such supremacy; Lord Justice Laws suggested there was a hierarchy of "constitutional statutes" that Parliament could only expressly repeal, and so were immune from implied repeal.
R (Jackson) v Attorney General [2005] UKHL 56 is a House of Lords case noted for containing obiter comments by the judiciary acting in their official capacity suggesting that there may be limits to parliamentary sovereignty, the orthodox position being that it is unlimited in the United Kingdom.
The primacy of European Union law is a legal principle establishing precedence of European Union law over conflicting national laws of EU member states.
An Act of Parliament in the United Kingdom is primary legislation passed by the UK Parliament in Westminster, London.
The constitution of the United Kingdom comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no official attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched.
Scots law is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law, it is one of the three legal systems of the United Kingdom. Scots law recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Legislation affecting Scotland and Scots law is passed by the Scottish Parliament on all areas of devolved responsibility, and the United Kingdom Parliament on reserved matters. Some legislation passed by the pre-1707 Parliament of Scotland is still also valid.
The European Union Act 2011, was an Act of the Parliament of the United Kingdom, requiring a referendum be held on amendments of the Treaty on European Union or the Treaty on the Functioning of the European Union.
The concept of the separation of powers has been applied to the United Kingdom and the nature of its executive, judicial and legislative functions. Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution.
Section 3 of the Human Rights Act 1998 is a provision of the United Kingdom's Human Rights Act 1998 that requires courts to interpret both primary and subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act 1998. This interpretation goes far beyond normal statutory interpretation, and includes past and future legislation, therefore preventing the Human Rights Act from being impliedly repealed by subsequent contradictory legislation.
Sections 4 and 10 of the Human Rights Act 1998 are provisions that enable the Human Rights Act 1998 to take effect in the United Kingdom. Section 4 allows courts to issue a declaration of incompatibility where it is impossible to use section 3 to interpret primary or subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act. In these cases, interpretation to comply may conflict with legislative intent. It is considered a measure of last resort. A range of superior courts can issue a declaration of incompatibility.
The rule of law is one of the longest established common law fundamental principles of the governance of the United Kingdom, dating to Magna Carta of 1215, particularly jurisprudence following its late 13th century re-drafting. At a minimum, it subjects an otherwise absolute monarch (executive) and all free people within its jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland, to legal doctrines known as the general principles of law. It has evolved to work only alongside equal application of the law to all free people 'equality before the law' and within the framework of the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly what it entails beyond this and the way that different aspects of the rule of law principle are applied, depends on the specific situation and era.
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.
The European Union (Withdrawal) Act 2018 is an Act of the Parliament of the United Kingdom to repeal the European Communities Act 1972, and for parliamentary approval to be required for any withdrawal agreement negotiated between the Government of the United Kingdom and the European Union. Initially proposed as the Great Repeal Bill, its passage through both Houses of Parliament was completed on 20 June 2018 and it became law by Royal Assent on 26 June.
R (Miller) v Secretary of State for Exiting the European Union is a United Kingdom constitutional law case decided by the United Kingdom Supreme Court on 24 January 2017, which ruled that the British Government might not initiate withdrawal from the European Union by formal notification to the Council of the European Union as prescribed by Article 50 of the Treaty on European Union without an Act of Parliament giving the government Parliament's permission to do so. Two days later, the government responded by bringing to Parliament the European Union Act 2017 for first reading in the House of Commons on 26 January 2017. The case is informally referred to as "the Miller case" or "Miller I".
The European Union Act 2017 was an Act of the Parliament of the United Kingdom to empower the Prime Minister to give to the Council of the European Union the formal notice – required by Article 50 of the Treaty on European Union – for starting negotiations for the United Kingdom's withdrawal from the European Union. It was passed following the result of the 2016 United Kingdom European Union membership referendum held on 23 June in which 51.9% of voters voted to leave the European Union.
The European Union Act 2020 is an act of the Parliament of the United Kingdom that makes legal provision for ratifying the Brexit Withdrawal Agreement and incorporating it into the domestic law of the United Kingdom. It is the most significant constitutional piece of legislation to be passed by Parliament of the Second Johnson ministry. The Withdrawal Agreement was the result of Brexit negotiations.
↑ Bradley, A W; Ewing, K D (2007). "Parliamentary Supremacy". Constitutional and Administrative Law. Pearson Education Limited. ISBN978-1-4058-1207-8. p. 73.
↑ Nussberger, Angelika (30 May 2020). "Implementation of the convention in different constitutional settings". The European Court of Human Rights (Elements of International Law). Oxford University Press. ISBN978-0198849643. pp. 120-121.
Bradley, A. W.; Ewing, K. D. (2007). Constitutional and Administrative Law (14ed.). Harlow, United Kingdom: Longman. ISBN978-1-4058-1207-8.
Bradley, Anthony (26 July 2007). "The Sovereignty of Parliament: Form or Substance?". In Jowell, Jeffrey; Oliver, Dawn (eds.). The Changing Constitution (6ed.). Oxford: Oxford University Press. ISBN978-0-19-920511-0.
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