4.1.2 Parliamentary Sovereignty Lecture

The implication of Parliamentary Sovereignty is that the Westminster Parliament is legally entitled to pass, amend, or repeal any law that it wishes.

The History of Parliamentary Sovereignty

Parliamentary Sovereignty was enshrined in Article 9 of the Bill of Rights 1689, but the powers of Parliament have been developed over a period of time since then, in an incremental manner, British Railways Board v Pickin [1974].

More recently, Parliament has found to be supreme or sovereign, M v Home Office and another [1994].

Sources of Parliamentary Sovereignty

The sources of Parliamentary Sovereignty are to be found within the UK constitution, which itself is found within:

(i) Statute

The basic rules of Parliamentary supremacy are not in statute, but it can acknowledge its law-making power here, see section 28 Scotland Act 1998.

(ii) Common Law

The courts have formulated the principle of Parliamentary Sovereignty in deciding cases on it, for example in deciding whether Parliamentary authority prevails over inconsistent rules of EC law.

(iii) A Constitutional Convention?

This can be rejected; constitutional conventions are not justiciable by the courts, whereas the courts can apply the Parliamentary supremacy rules.

(iv) Another Category of Norm?

Several writers have argued that Parliamentary supremacy is in a class of its own. Some describe it as a political reality.

Theories of Parliamentary Sovereignty

Dicey (1885) elucidates three main principles of Parliamentary Supremacy:

  1. Parliament is the Supreme law making body and can enact laws on any subject matter. There are some political and practical limitations on this principle.
  1. Parliament cannot bind its successor.

Entrenchment: Some writers assert that Parliament may be able to entrench legislation under some circumstances so as to bind future Parliaments.

Express or Implied Repeal: However, it may be impossible to do this because Parliament can expressly or impliedly repeal any legislation, Ellen Street Estates v Minister of Health [1934].

  1. No court of law (or other body) can question the validity of Parliaments enactments, Manuel v AG 1[983]; Stockdate v Hansard [1839].

Continuing Sovereignty

There is an ultimate political fact upon which the whole system of legislation hangs, Wade [1955]. This is the ‘rule of recognition’, Hart (1961). This rule of recognition or political fact cannot be amended by Parliament, since it is not law, and hence beyond Parliament's legislative reach.

Can Parliament Amend its Own Constitution?

Relevant case law suggests that Parliament is able to do this for particular purposes, Jackson v AG [2006].

The Human Rights Act 1998

  • Section 2 obliges the courts to take account of decisions of the European Court on Human Rights when reviewing cases that deal with Convention rights.
  • Section 3 obliges the courts to interpret legislation in accordance with the rights incorporated within the European Convention on Human Rights 1950. See Ghaidon v Godin-Mendoza [2002].
  • Section 4 gives the High Court in England or Wales the jurisdiction to issue a declaration of incompatibility when a provision of a statute is found incompatible with a Convention right.

European Union Law in the UK

The European Communities Act 1972 incorporated EU Treaty into UK law, and was to give be given precedence above UK law. This was held as a limitation of state’s sovereign rights, NV Algemene Transport-Expedite Onderneming Van Gen den Loos v Nederlandse Administratie der Belastingen (1963).

Whilst the 1972 Act remains, EU law is supreme. However, sovereignty still lies with Parliament since the EC Act can be repealed, Macarthys Ltd v Smith [1979]. Parliament enacted section 18 European Union Act 2011 to confirm that directly effective EU law only takes effect in the UK as a result of the existence of the EC Act 1972, to allay concerns about Parliamentary Sovereignty following on from a number of cases.

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