Parliamentary Sovereignty

In a state there must be one ultimate source of legal authority or the supreme law making body. In
countries with a written constitution such a source of power is the constitution. UK however is an
exception as it does not have a proper codified constitution and thus the ultimate sovereign authority is
the Parliament.

According to A.V. Dicey, sovereignty is the dominant characteristic of the UK political institution. There
are two types of sovereignty- Legal and Political. Legal sovereignty derives from the sovereignty of the
legislature while political sovereignty lies with the people. There are two situations in which the legal
sovereignty may be lost- one where the Parliament decides to abolish its sovereignty and places its
residual power under a written constitution; and second where the judiciary undergoes a revolution
stating that it no longer owes its allegiance to the Parliament.

In today’s world the traditional theory of sovereignty to some extent is losing importance. This essay
aims at focusing on the challenges to the orthodox view given by A.V. Dicey, and to conclude about its
contemporary relevance in UK.

After the passage of the Bill of Rights in 1689, William and Mary came to the throne subject to
conditions which ensured Parliament’s sovereignty and the royal prerogative being subject to such
supremacy. In BBC v. Johns, the court held that no new prerogative can be claimed by the Crown. The
classical definition of Parliamentary Sovereignty has been given by A.V. Dicey in three parts- Parliament
can legislate on any subject matter; it is not bound by its predecessor nor can bind its successor; and no
one including the courts can challenge the validity of an Act of Parliament.

 Parliament can legislate on any subject matter:

There is no limit on the subject matter on which the Parliament can legislate.

1. It can alter the term of its office according to the Septennial Act.
2. It can alter its powers. The Parliament Acts of 1911 and 1949 curtailed the powers of the House
of Lords, and the House of Lords Act 1999 reduced the number of hereditary peers in the House
of Lords.
3. It can legislate to alter the succession to the throne under the Settlement Act 1700.
4. Parliament can grant independence to its dominions. It did so to Zimbabwe under the
Zimbabwe Independence Act.
5. It can make laws retrospectively thereby making an action unlawful which at that time was
lawful. An example of such a category is the War Damages Act 1965.
6. It can legislate extra territorially- the Aviation Security Act allows the courts to try hijacking
cases irrespective of the territory and nationality of the hijacker.
7. It can also give effect to international law within the UK (Human Rights Act 1998).

However a challenge to such an aspect is the debate of validity and effectiveness, i.e. Parliament can
make laws on any subject matter it wants to, but out of political practice would not do so. These are the
extra legal or non legal limits on the Parliament and thus a challenge to the sovereignty of the
Parliament. This was best explained by Lord Reid in Madzimbamuto v. Lardener Burke as ‘it is often aid
that it would be unconstitutional for the UK Parliament to do certain things, meaning that the political,
moral and other reasons against doing them are so strong that most people would regard it as highly
immoral if Parliament did such things. But that does not mean that it is beyond the power of the
Parliament to do such things. If Parliament wishes to do so, the courts cannot hold such an act invalid’.

 Parliament is not bound by its predecessor nor can bind its successor:

Each parliament must enjoy the same unlimited power as any parliament before it. No parliament can
enact rules which limit the future parliaments. This limb requires the most careful analysis. The doctrine
of implied repeal states that when judges are faced with two conflicting statutes, the judges apply the
latest statute and deem the earlier provision to be impliedly repealed. The judges are thereby giving
effect to the latest expression of the Parliament. In the cases of Vauxhall Estates v. Liverpool
Corporation, and Ellen Street v. Minister of Health, the earlier act impliedly repealed the earlier
statutes. However, the doctrine does not apply for the constitutional statutes which are so firmly
entrenched that they cannot be repealed impliedly (Thoburn v. Sunderland).

An area which poses problems for legislative supremacy is the grants of independence. S4 of the
Westminster Act recognizes the convention that the UK Parliament would not legislate for the
Dominions without their consent. This has limited the law making powers of the future parliaments.
However, if the UK Parliament so desires, it can legally revoke the Statute, but practically speaking it
would not (British Coal v. The King).

Furthermore attention needs to be given o the Acts of Union with Scotland and Ireland. In 1707, the Act
of Union created the parliament of Great Britain, abolishing the parliaments of England and Scotland.
Many of the provisions were entrenched and not subject to repeal. This suggests that the Act is then
some form of higher law which binds the future parliaments. In MacCormick v. The Lord Advocate,
MacCormick sought an injunction against the Lord Advocate as representative of the Crown, preventing
the use of the title Queen Elizabeth II of the UK of Great Britain. The objection was based on historical
inaccuracy. The petition and appeal were dismissed. Lord Cooper stated that there was no provision in
the Act which stated that the parliament of Great Britain was absolutely sovereign in the sense that
parliament should be free to later the Treaty at will.

Also under the Northern Ireland Constitution Act and Northern Ireland Act 1998, Northern Ireland
would not cease to be part of the UK unless and until a majority of voters should determine otherwise.
This was not binding on the UK Parliament- it could legislate to the contrary but would not do so as the
political implications would be very strong.

Parliament may specify particular procedures which must be undertaken to enact legislation. Any
provision related to the procedure but not affecting the composition of the Parliament may be termed
as a manner and form provision. Such provisions are thus entrenched and are capable of binding the
future parliaments. In AG for New South Wales v. Trethowan, a statute of the New South Wales
repealed an entrenched provision of the Colonial Validity Act without holding the required referendum.
The manner and form provision was thus entrenched in that it was imposed on the New South Wales
Parliament by the UK Parliament.

There have been reforms proposed for the succession to the Crown, namely that the succession would
take place in accordance with birth rather than gender, and that discrimination against the Roman
Catholics would be ended. The Act of Settlement however has a manner and form provision that any
amendment to the Act requires the consent of the heads of the 15 Commonwealth countries which
recognize Queen Elizabeth II as their head of state. Thus this has bound the future parliaments too.

 No one including the courts can challenge the validity of an Act of Parliament:

According to the Enrolled Bill Rule, an act will be accepted as valid by the courts if it passes through the
necessary parliamentary stages and receives royal assent. Regardless of the subject matter it will be
upheld by the courts.

In Dr. Bonham’s case, a statute which was against common sense or reason was controlled by the
common law which then nullified it. However according to Lord Reid in Pickin v. BRB, affirming
Edinburgh v. Wauchope, the Bill of Rights 1689 had established the supremacy of the Parliament and
the idea that statutes which were for instance against the rules of natural justice has become obsolete.
Moreover the Hunting Act 2004 in the case of Jackson v. Attorney General 2005 was seen as a valid one
though it did nr protect the rights of the hunters- a small minority.

However there are non-legal constraints on the Parliament’s powers. Parliament is elected by the
people and no government can afford to ignore Parliament. The Parliament needs to reflect the political
morality within the society otherwise a government can be brought down if its policies are such that it
loses the confidence of the Commons. Also government is bound by international obligations.
Parliament can enact laws contrary to UK’s international obligations but in practice it could not and
would not do such a thing.

A great challenge to this limb of the definite has been by the European Union. UK joined the EC in 1972
and the ECJ has adopted the view that sovereignty of Community law must be respected by the member
states as all the member states have surrendered or shared their sovereignty to gain an influence which
they would have been unable to attain on their own.

In UK the acceptance of community law has been through the European Communities Act 1972. From
the ECJ’s perspective, community law prevails over domestic law and domestic legislatures have no
authority to enact binding legislation which is contrary to community law. From the domestic
perspective however the picture is not so clear. S2 (1) of the Act states that Community law shall have
direct applicability in UK. Membership of EU raises some complex questions about UK’s parliamentary
supremacy. Article 4.3 of TEU imposes a duty on all member states to comply with the Community law;
secondly once an interpretation is received by the domestic courts from the ECJ, the interpretation must
be given effect. The individual has thus the right to bring up the case against the state or bodies which
are the emanations of the state and in some circumstances can claim compensation from the state.
Two conclusions can then be reached. Firstly the Parliament of 1972 has bound the future parliaments,
as the statute can be seen to be a constitutional one. x However, on the other hand, it can be argued
that the orthodox view remains unimpaired as UK voluntarily acceded to the EC and passes the ECA in
1972. The Act can then be repealed by UK Parliament any time it wants to. Also in accordance with
Macarthys v. Smith, the Court of Appeal and the House of Lords endorsed the view that if the
Parliament expressly chose to legislate contrary to Community law, the intention would be given effect
to by the judges. Also, the European Union Act 2011 has introduced the requirement of a referendum
to determine whether powers to the EU be transferred in the new areas or not. This also has limited the
power of the government and has reinforced parliamentary supremacy.

Moreover, the Scotland Act, Government of Wales Act and the Northern Ireland Act 1998, have
developed a form of self government in UK. The devolved bodies are at the will of the Parliament and if
the Parliament so desires it can strike down the whole devolutionary system via one small enactment.
The devolution of Scotland has raised the most complex issue about the sovereignty of UK Parliament.
Scotland has always retained a strong sense of national and cultural identity and has its own legal
system. However the Scotland Act makes it quite clear that the Scottish Parliament unlike the
Westminster Parliament is a limited legislature, and that it cannot make any law which is out of its
legislative competence. The perception of the Scots is that the UK Parliament should not make laws in
the devolved areas without their consent and if it does so, it would highly likely precipitate a political
crisis. The Scottish Government has proposed to hold a referendum for the independence of Scotland
and the coalition government has preferred to ask a single question from the electorate, namely
whether the people want independence for Scotland or want to maintain the status quo.

Another important challenge to the third limb has been the passage of the Human Rights Act in 1998.
According to S3, judges are under a duty to interpret legislation in a manner which is compatible with
the ECHR. This means that the judges are not giving effect to the latest will of the Parliament but
whether the legislation is compatible with the Convention rights or not. This gives the HRA a special
constitutional status and challenges the supremacy of the Parliament.

However, if the judges find the provision incompatible with the ECHR, all they can do is issue a
declaration of incompatibility which would not invalidate the provision but open it to amendment. Also
under S6, if the public bodies act unlawfully they are held accountable to the Parliament, which then
reinforces the supremacy of the Parliament. Thus it is felt that the HRA has maintained parliamentary
supremacy but has also empowered the judges.

In conclusion, in UK the ultimate sovereignty lies with the Parliament which is ultimately dependent
upon the political sovereignty of the people. Each of the principles of A.V. Dicey is subject to
qualifications, but at the end of the day, the UK Parliament has been able to retain its supremacy after
all.

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