Sovereignty

Parliamentary Sovereignty:

Parliament has absolute legislative sovereignty through ‘the Crown in council in Parliament’.

It has the right to make and unmake any law and no person can override Parliament’s legislation. The only law that Parliament cannot write is one that cannot be undone. As Parliament is supreme, the judiciary must apply the law as it is, not as it thinks it is, or ought to be.

‘Parliament has, under the English constitution, the right to make or unmake any law whatever.’; ‘no person or body is recognised by the law has having a right to override or set aside the legislation of Parliament’ [1]

‘Acts of Parliament derogatory from the power of subsequent parliaments bind not.’ [2]

‘Being sovereign, it [Parliament] cannot abandon its sovereignty’ [3]

Implied repeal is the idea that the most recent Act holds the most authority when two Acts serve the same purpose.

Incompatibility of Sovereignty with the Rule of Law:

Parliamentary sovereignty can be seen to be incompatible with the rule of law. If Parliament can create any law it wants, the law that is being created is above the previous law. Dicey argues that incompatibilities are remedied by conventions that ensure that Parliament cannot pass a law that impedes on the rule of law. [4]

---

Elements of the Doctrine of Parliamentary Sovereignty:

The examples below show Parliament’s unlimited power.

Self-imposed Limits:

While Parliament is bound by the Fixed-terms Parliament Act, Parliament could still pass another statute that overturns it. As a result, constitutional change can be quite flexible.

Manner and form limitations are where legislation needs different circumstances than usual to be repealed.

‘The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter, there can be no implied repeal.’ [5]

The Statute of Westminster allowed for the creation of self-governing states within the British empire and removed their necessity to follow statutes created by the Westminster Parliament. This is an example of where Westminster has, at least practically, released some of its sovereignty.

‘Freedom once given cannot be taken away. Legal theory must give way to practical politics.’ [6]

The Monarchy:

Parliament can alter the line of succession to consolidate its power.

For example, the Abdication Act made King Edward choose between the Crown and Wallis Simpson. He chose to marry, so Parliament changed the line of succession and allowed him to abdicate.

Parliament made heirs of either gender equal in 2013. The line of succession is now based solely on age, not gender.

The Houses of Parliament:

Hereditary peerage was removed by Parliament in favour of life peers in 1999.

Retrospective Law:

Law can be enacted retrospectively, especially in times of war.

EG: War Damages Act.

Using the Power to Pass Legislation (Parliament Acts):

Parliament removed the power of the House of Lords to veto legislation. Now, they can only delay it. If they delay it for more than 1 year, the bill can go for royal assent regardless.

In Jackson, a judicial review case challenged Parliament’s power to enact laws that are created through the provisions of the Parliament Act(s). Lady Hale supports parliamentary sovereignty, stating that Parliament may both broaden or widen its legislative power if it wishes.

Devolved Powers:

In the Northern Ireland Act, it is stated that N Ireland will not be reunited with Ireland, unless a majority vote allows it. This is a manner and form restriction, so a referendum would be required to reunite Ireland.

In the Scotland Act, the Scottish parliament was given legislative devolution. It states that the Scottish Parliament and government cannot be abolished without a majority vote in a referendum. Again, this is a manner and form restriction.

European Court and Human Rights:

The courts were given the power to interpret the law as they see fit so that the law may be ECHR compatible. This idea moves away from the idea of parliamentary sovereignty into something more centred on protecting fundamental rights and upholding the rule of law.

In Jackson, Lord Steyn argues that parliament’s supremacy is enforced and created by judges. He states that if this were true, the courts have to power to take this back if this is required to maintain the constitution. This bold statement was his last before retirement. Lord Hope also states that parliamentary sovereignty is not absolute: the constitution is created by the courts maintaining the rule of law.

---

References:

[1] AV Dicey, Law of the Constitution (1885) [2] Blackstone, Commentaries on the Laws of England (1765) [3] Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 (Laws LJ) [4] AV Dicey, Law of the Constitution (1885) [5] Ellen St. Estates v Minister of Health [1934] 1 KB 590 [6] Blackburn v Attorney General [1971] 2 All ER 1380

Cases Mentioned:

R (on the application of Jackson) v Attorney-General [2005] UKHL 56