Parliamentary Supremacy Sovereignty of Parliament in the United Kingdom

Parliamentary Supremacy or Sovereignty of Parliament in the United Kingdom 

Parliamentary Supremacy

Parliamentary sovereignty or the Sovereignty of Parliament, also Parliamentary supremacy, is the concept in the constitutional law of Westminster system that the Parliament has absolute sovereignty. This means it is supreme to all other governmental institutions including the monarch acting alone. This contrasts for example, with the situation in the United States, where the supreme court can rule legislation unconstitutional. The principle of parliamentary sovereignty originated in the United Kingdom in the 17th and 18th centuries during which time parliament asserted the right to name and depose a monarch. In 1648, Henry Herbert who was the 2nd Earl of Pembroke, famously commented while a member of the House of Lords said that "Parliament can do anything but makes man a woman and a woman a man." Parliamentary supremacy essentially takes its origin with the Bill of Rights 1689.

The phrase 'parliamentary supremacy' is generally used to mean the absence of any legal restraint on the legislative power of the United Kingdom. The expression positively means that the Queen, the House of Lords and the House of Commons can pass, amend, or repeal laws to any extent and there are no fundamental laws with which Parliament cannot interfere. Negatively, it means that there does not exist in any part of the British Empire any person or body of persons, executive, legislative or judicial which can pronounce void any enactment, passed by the British Parliament on the ground of such enactment being opposed to the constitution on any ground whatever, except, of course, it being repealed by the parliament itself. Parliamentary Sovereignty is thought to be the main principle of the British Constitution. In other words, Parliament holds the supreme authority in the UK.

AV Dicey wrote that Parliament "has under the British Constitution, 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 set aside or override the legislation of Parliament".

A. V. Dicey, in an Introduction to the Study of the Law of the Constitution, offers a three part definition of the Sovereignty: Parliament can legislate on any subject matter. Nobody including a court of law can raise a question of the validity of an Act of Parliament. No Parliament can be bound by its predecessor nor bind by its successor.

Parliament can legislate on any subject matter:

In studying sovereignty it is important to appreciate that there is a significant difference between what Parliament can do legally and what it can do in practice. For example, if Parliament bestow independence upon a former colony, in strict legal theory, Parliament can also take back that independence. However a unilaterally unwanted attempt regain sovereign power would be ineffective within the newly independent and the sovereign state. As another example, in legal theory Parliament could pass a law stating that the right to own private property is abolished. According to Dicey's theory, such an Act- once passed by the Commons, Lords and given the royal assent- would be legally valid and not susceptible to invalidation by the courts. However as a matter of political practice, Parliament would never pass such a law. And, if it were so unwise to do so, the law would be ineffective. The limits under which Parliament operates are those imposed by the democratic process: they are non-legal or extra-legal limits.

Nobody including a court of law can question the validity of an Act of Parliament:

The manner in which sovereignty reveals itself is through judicial decisions. In relations to domestic legislation, two rule sare dominant. The first is the 'enrolled bill' rule which states that, once a bill has passed through requisite parliamentary stages and received the Royal Assent, the courts will not raise any question into the manner in which it was passed, even if allegations are made that it was not passed properly. The second rule is that of implied repeal. In essence the rule provides that, not only may parliament expressly repeal a previous Act but it may also by necessary implication impliedly repeal a previous Act.

No Parliament can be bound by its predecessor nor bind by its successor:

Particular attention should be paid to arguments against Parliamentary Sovereignty based on the Treaty of Union with Scotland 1706 and Act of Union 1707. The Treaty of Union created a new Parliament of Great Britain and, in so doing, in effect abolished the formerly sovereign Parliaments of England and Scotland. Many of the provisions of the Act where phrased in terms which suggested the intention that they should be enduring and hence not subject to amendment or repeal. However, many amendments have been made.

It has been argued that Act of Parliament which go against the provisions of the Act of Union are invalid, on the basis that the Act of Union was a constituent Act- one prior to and setting the conditions under which the newly created Parliament would legitimately act. The argument then centres on whether or not Parliament can be bound by a predecessor.

Sophisticated academic arguments have been put forward to the effect that Parliament can bind its successors, either by redefining itself or setting out 'manner and form' provisions which must be followed. This 'new view' of sovereignty has in its various respects attracted the support of Sir Ivor Jennings.

Parliamentary Sovereignty in the United Kingdom:

After the Act of Union of 1707 there was some ambiguity about whether the principle applied in Scotland. Prior to the union this had been a principle only of English, not of Scots law, and the Act of Union guaranteed continuity in the Scottish legal system. While the Parliament took the view that the principle of sovereignty applied throughout the United Kingdom, the Scottish judiciary maintain the right in theory to rule an act of parliament inadmissable. One clear statement of this from the year 1953 was in the judge's findings in the case MacCormick v. Lord Advocate. However, the issue has never been tested, as no Scottish court since 1707 has actually attempted to make such a ruling.

Parliamentary sovereignty does not allow judicial review of local domestic law. However the idea of parliamentary supremacy underwent erosion in practice from three main directions in the late 20th and early 21st centuries:

The first is the devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly) full disclaimer.

The second erosion has been linked with institutions of the European Union, particularly the European Court of Justice asserts the power to exercise judicial review over UK law. In this situation, an unfavourable finding by the Court that a UK law is not consistent with the Treaties automatically annuls the law, The fact is that the European Communities Act 1972 requires that European Community law is supreme in the United Kingdom. The first example of this was the Factortame case. The ECA 1972 has been regarded as a 'constitutional statute'.

In the case of Thoburn v. Sunderland City Council the Weights and Measures Act 1985 was stipulated not to impliedly nullify the ECA 1972. This has also compromised the effect of parliamentary sovereignty, as the ECA 1972 must be repealed automatically in order to be negated by subsequent incompatible legislation.

The third erosion has been in connection with the European Convention on Human Rights and the incorporation by the Human Rights Act 1998 of the European Convention on Human Rights into UK law. The European Court of Human Rights can find acts of the UK government to be in violation of the Convention. However, decisions by the ECHR does not automatically annul the law; the Government must introduce a bill into Parliament to implement the ECHR's decisions. Acting under the Human Rights Act, British courts can declare that the Acts of Parliament are in violation of the Convention; this power, like that of the European Court of Human Rights, does not annul the law automatically.

However, unlike the ECHR, the British Courts have a formal procedure for the review of Acts, the result of which is a Declaration of Incompatibility. The Declaration of Incompatibility does not undo the law, but makes the Government enable to use an accelerated procedure to enact a bill to repeal it.

Another more minor area is the increasing use of referendums the result of which is the taking away power from Parliament. In reality, the decision whether to pass law is made by the electorate, but not the Parliament. However, Parliament could still make decisions reverse by referendums, but this seems unlikely to ever happen.

However, in each case, the laws have been structured in such a way that there is no theoretical erosion of Parliamentary supremacy. Parliament reserves the power to overrule or abolish any of the devolved legislatures at its pleasure, although it would be improbable to do so. The European and British Courts have the authority to declare incompatibility or to annul a law only because of an Act of Parliament, the European Communities Act 1972 which can be repealed by Parliament. Thus, theoretically, Parliament remains almost entirely sovereign. The qualifier "almost" is introduced because in the 1921, after a century of dispute, Parliament did pass the Church of Scotland Act 1921which finally came to agreement that it does not have the sovereign power over the Church of Scotland which is the established church in Scotland.

In political science of 'legal' and 'political' sovereignty there is a concept. It can be argued that legal sovereignty has not been taken away, because Parliament still have all its theoretical powers. There are no legal extent on Parliament's sovereignty. However, as it is highly improbable that the UK would repeal the European Communities Act and leave the EU, and it is equally unlikely the devolved legislature would be abolished, there are significant political limits on the sovereignty of Parliament. Nevertheless, it suggests that the UK Parliament could do so, and that if it did, these repeals would be binding legally. This stands in contrast to the Acts of Parliament which have been used to devolve independence from the UK to colonies in the British Empire. For example the UK Parliament passed the Canada Act 1982 which stated that the UK Parliament would no longer be able to amend the Canadian constitution. Even if the UK Parliament were to amend or repeal the Canada Act 1982, it would be inoperative because Canada is no longer subject to UK sovereignty.

In what ways is Parliament sovereign?

Parliament has the ultimate political authority. Most prime decisions must be approved by Parliament. All powers exercised by devolved governments, ministers, local governments and other public bodies are supported and granted by parliament and can be removed by Parliament.

All new primary legislation must be passed by parliament and secondary legislation which are made by ministers can be overruled by Parliament. Parliament is not bound by its predecessors. Parliament cannot bind its successors.

Is Parliament really Sovereign?

Parliamentary sovereignty has been undermined in a number of areas as stated below:

Political Parties:

 Since the reductions in the power of the House of Lords in 1911 and 1949, the balance of power has shifted to the House of Commons. Since the start of the C20, combined with the dominance of political parties in elections , this has led to tight party control over MP's and disciplined parliamentary groups that make the business of the House of Commons very predictable.

Executive:

Practically the British Government is the majority party in the House of Commons. Strong party discipline is almost guarantees the Government victory in Commons votes - an 'Elective Dictatorship'. Also powered by the Civil Service 'machine' it is easy to pronounce that sovereignty actually lies with the executive not Parliament. However, Prime Ministers who systematically repress the powers of party and parliament tend to meet their fate - Margaret Thatcher is a classic example of this.

Public:

the House of Commons is re-elected at least once every five years and so at that point sovereignty really associated with the people. However, after the general election sovereignty comes back to Parliament for the next five years.

Devolution of power

In Scotland and Wales, the first is the devolution of power to local assemblies. In this situation the legal theory has been maintained that the parliament in London maintains supremacy but chooses not to use it in certain legislation involving Scotland and Wales.

Human Rights Act 1998

Another erosion has been due to the incorporation by the Human Rights Act 1998 of the European Convention on Human Rights into UK law.

British courts can declare Acts of Parliament to be in violation of the Convention under the Human Rights Act. This power which is like that of the European Court of Human Rights, does not automatically undo the law.

However, unlike the ECHR, the British Courts have a formal procedure for the review of Acts, resulting in a Declaration of Incompatibility. The Declaration of Incompatibility does not annul the law, but enables the Government to use an accelerated procedure to enact a bill to repeal it.

European Union:

Whenever Britain signed the Treaty of Rome in 1973, it granted that the status of European law is superior to British law. This has given British courts the power of judicial review over Acts of Parliament. Therefore courts can examine carefully Acts of Parliament, mention them to the European Court of Justice and even suspend those Acts. However, Parliament is free to withdraw Britain from the EU at any time, so technically sovereignty still lies with Parliament.

The doctrine of implied repeal:

The doctrine of implied repeal provides the mechanism by which the judge gives effect to contemporary sovereignty. Parliament may, of course, repeal any previous law by expressly declaring that law to be repealed. The position of the judiciary is then clear: they must give effect to the latest law and judges are not free to apply the earlier statute. The position, however, may not always be so clear-cut. Parliament may pass a statute, which while not expressly repealing an earlier Act is inconsistent with it. When the judges are faced with two apparently conflicting statutes, the doctrine of implied repeal would come into play. The judges in such situations apply the latest statute assuming the earlier statute to be impliedly repealed.

Two cases illustrate this point. In Vauxhall Estates Ltd v Liverpool Corporation (1932) the Corporation of Liverpool proposed a scheme for the improvement of certain area of the city. The Minister of health confirmed the scheme in an order that incorporated the provisions of the Acquisition of Land Act 1919 and the Housing Act 1925. These two Acts each provided a different scheme of compensation for compulsorily acquired land. The question as to whether the compensation due to the appellants in accordance with the 1919 Act or in accordance with the 1925 Act. It was held the compensation should be counted in accordance with the later Act.

In Ellen Street Estates Ltd v Minister of Health (1934) the plaintiffs sought to have compensation for compulsorily acquired land paid on an earlier more favourable basis rather than that laid down in a later statute. Held, the later statute must prevail.

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