Essay: The doctrine of Parliamentary Sovereignty

The doctrine of Parliamentary Sovereignty is the cornerstone, and most fundamental principle, of our British Constitution. Its role gives Parliament absolute power, and authority, over any law. Simply put, when any piece of legislation is produced and passed by Parliament it will generally be regarded as the highest form of law within the constitutional structure.
This doctrine has been the very foundation of the constitution since, and throughout, the 20th Century. However, recent developments suggest that attitudes are changing and that support for the doctrine, at least in this wholly unqualified form, may not be as assured or predictable as it has long been assumed. This essay will delve into these attitudes, focusing on the changes and challenges that have ultimately weakened Parliament’s authority in our Constitution.
The concept of Parliament being the sovereign law maker derived from the constitutional theorist, A.V Dicey, in his 10th edition of the book ‘An introduction to the Study of the Law of the Constitution’. Within this, he defines Parliamentary Sovereignty as: ‘Neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make and unmake any law whatsoever; 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.’
Dicey’s perception of Parliamentary Sovereignty can be articulated in three distinct parts:
Firstly, that Parliament can legislate on any subject matter. This means it has the right to make and unmake any laws, whatsoever; alter constitutional rules; as well as the right to create retrospective legislation, such as the War Damages Act 1965 – an act passed retrospectively, which exempted the British Government from liability for damage caused during the war. Additionally, as a result of the the arise of Brexit, Parliament has the power to trigger and reinforce the principles of Article 50 – an extremely important document which currently guides our constitution, allows debates on our referendum, demonstrating the importance of parliamentary sovereignty within our UK system, and its crucial role towards Brexit.
Dicey’s second part of this doctrine was that nobody, including the courts of law, could question the validity of an Act of Parliament. This is an ongoing, contemporary debate within our state and will be explored later on in this essay in further depth.
The last part to Dicey’s definition states that ‘Parliament cannot be bound by its predecessor, nor by its successor’. Put simply, Parliament is not bound by previous parliaments, thus cannot bind future ones. Binding future parliaments would amount to a new constitutional role – an entrenchment – which cannot happen in our constitution due to Parliament’s sovereignty, and the rule that it cannot bind its successors.
As a direct result of Dicey’s definition, came the Doctrine of Implied Repeal, and the idea that two statutes can be mutually inconsistent. So, when an act is enacted by parliament, to the extent that it contradicts other acts, these other acts will be repealed. Similarly, when a case goes to court, and two previous acts on the same matter occur, then the most recent act will be followed.
Earliest records of our UK constitution, and thus the existence of Parliamentary Sovereignty, date back to the 1200s, and the century that the Magna Carta arose. It is without hesitance to state that, as a result of the unimaginable developments our world and our society has gone through, that this Sovereignty has been impacted; that the one ‘pure and absolute’ doctrine can now be argued to be out of place in the latter-day United Kingdom.
These developments have not only weakened Parliament’s authority by undermining it, but in some aspects it has modernised this supremacy, and shared its grounds of authority throughout the UK. From the monarch being the sole source of all power in a kingdom, this power is now distributed between the Monarch, the Judiciary, and the Executives in Government; this is known as the separation of powers, and is one concept that has weakened the power of Parliament, no longer being the single, supreme power in the kingdom.
Perhaps one of the most significant developments within Parliament over the last century was the creation of the Parliament Acts 1911 and 1949. The general procedure in the making of an Act of Parliament is that, in order for a bill to be granted an Act, it will need acceptance from both the House of Lords and the House of Commons, and final permission – known as Royal Assent – from the Monarch. However, as a result of these acts, the Lords can no longer ‘veto’ bills but delay them to a period of 1 year, as per the 1949 Act (reduced from the 2 years which the 1911 Act permitted).
Further reducing the Lords’ power was the Salisbury Convention, which emerged between the years of 1945-1951. This ensured that Government Bills can get through the Lords, even when they have no majority. In practice, meaning that the Lords cannot vote down a Bill within an election manifesto. Thus, a Bill can now be passed as an Act without having consent from the House of Lords.
This development raises the question of which part of ’Parliament’ is really sovereign, if one House can be dropped and an act still have validity? This issue was raised in the case of R (Jackson) v AG; the first instance of the Lords bypassing the creation of the Fox Hunting Act 2004.
As understood and stated by Dicey, the word ‘Parliament’ meant the House of Commons, House of Lords and the Queen collectively. However, this new procedural development, which gives the Commons ultimate superior power over the Lords, portrays how elements of the historical Parliamentary supremacy are collapsing**.
When discussing whether Parliament is really sovereign, it is important to focus on statutes within the UK, that are a matter of EU law. In 1973, the European Communities Act was created, and arose a body of law made for the benefit of which EU member states have restricted their sovereign rights. The importance of this to our Constitution can be shown in the ‘Factortame No.2’ case series, which establish these limits in cases of conflict between the EU and national law. By rule in our Constitution, no-one is allowed to question the validity of the Act of Parliament, so as primacy is given to EU law, courts, when dealing with national legislation, have to ‘dis-apply’ it. This means these laws are not declared invalid but are just not appropriate to apply. This is known as the preliminary reference procedure, and is demonstrated in the case of Thoburn; which shows a part of national law which, whilst still remaining sovereign, has given away some of its powers to the courts when legislation declared invalid.
The use of referendums, by Parliament, such as those of 1975, 2011 and 2016, have also been argued to hinder the sovereignty of Parliament. Interestingly, in a 2016 Government debate on ‘Referendums and Parliamentary Democracy’ which followed the 1975 EEC referendum, the words of Dicey were used to discuss referendums, as he was concerned about irreversible and possible revolutionary changes to the British Constitution, in which he advocated the use of referendums on major constitutional changes. Within this debate they used Dicey’s words which underlined the importance of electors within both processes: ‘This course [of using referendums], it may be said, is unconstitutional. This word has no terrors for me; it means no more than unusual, and the institution of a Referendum would simply mean the formal acknowledgment of the doctrine which lies at the basis of English democracy—that a law depends at bottom for its enactment on the assent of the nation as represented by the electors.’
Further in this debate, many Political leaders had different perceptions on Parliamentary Sovereignty, and the impact that referendums had on it; Edward Short (Labour Party) believed it was “wholly consistent” with the principle of parliamentary sovereignty, arguing that Government will be bound by its result, but Parliament, of course, cannot be bound by it. One of the characteristics of this Parliament is that it can never divest itself of its sovereignty. The referendum itself cannot be held without parliamentary approval of the necessary legislation. Nor, if the decision is to come out of the Community, could that decision be made effective without further legislation. He went on to state that he does not accept that the sovereignty of Parliament is affected in any way by the referendum. Margaret Thatcher (leader of the conservative Party at the time) discussed the relationship between referendums with Parliamentary Sovereignty, and supported Labour’s arguments, saying that there is no power under which the British constitution can come into rivalry with the legislative sovereignty of Parliament (that is the tenth edition of Dicey), and that too, the referendums are consistent with supremacy.
Others believed, however, that referendums can weaken democracy, suggesting that putting people before Parliament is in direct opposition to parliamentary sovereignty.
Though overall, the debate concluded that the doctrine of parliamentary sovereignty, allied to the absence of a codified constitution, resulted in referendums in the UK generally being treated as advisory, rather than legally binding.
Briefly mentioned already, is the concept of Separation of Powers and its principle of ‘liberal constitutionalism’ is one of the main fundamentals within our Constitution. Montesquieu in Esprit de Lois, states this to be an extremely important principle, as it ‘asserts that there are three different functions of govt. which should be discharged by distinct institutions’; it should be ’a separation of functions and a separation of persons discharging them’.
The relationship between Parliament (legislative power) and the Cabinet (executive power) demonstrate this, as in theory, the Government is held in check by Parliament, and in particular, the House of Commons. And our electoral system – which normally produces strong majority for the governing party – as well as other factors, often means that Parliament and the Executive act in concert.
Additionally, judicial immunity and the independence of the Judiciary in the UK is a key feature of separation of powers. Judges are trained to act independently and impartially, and it is often possible for parliamentary sovereignty to coincide with the rule of law itself. The Human Rights Act 1998, and its power allows the courts to make a Declaration of Incompatibility; S4(2) of this act states that “If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that compatibility”. This means that, although the courts don’t have power to invalidate an Act of Parliament, they can declare it incompatible with the fundamental rights, protected and included in Human Rights Act. For example, in the case of A and others v Secretary of State for the Home Department [2004] (also known as the Belmarsh Case), the act was declared incompatible, and subsequently amended and replaced by another act.
Separation of powers is an obvious degradation of the Supremacy that Parliament holds as it is a clear delegation of its powers to other authorities, that without the distinction of power, our constitution would not operate effectively. Webley & H Samuels in ‘Public Law: Cases, Texts and Materials’, supported this concept as they stated that “without separation of power, one person or body would have access to too much power which may lead to its abuse”.
The UK is more benefitted by having a strong and effective government rather than a tyrannical government, which abuses power. Though this one bodied power has been the case for the last 800 years, its strength would be inconsistent with that of our society and the developments it has undergone, today.
Lastly, the concept of devolution – another concept of power distribution. In the UK, Westminster Parliament is the sovereign but in 1998, for both historical and political reasons, it gave away powers on devolution issues to the Scottish Parliament, meaning they can now legislate on issues, such as Education. Although this may reduce the complete strength of Westminster, it still has absolute power to take back any devolved powers – though, if it did choose to do so, there would most likely be political repercussions, and other crises arising. For example, during the Scottish referendum on independence, if Westminster Parliament were to have taken back the devolved powers, then the Scottish would have been more likely to vote for independence, and thus resulting in multiple constitutional crises.
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Having explored various perceptions of the statement title, it is clear to say that, although there may be mixed opinions on this matter, the majority – especially political leaders – state that the Constitution still aims to be consistent with the concept of Parliamentary Sovereignty. It is merely impossible that, within such changing nations, and the development of both political and social norms, that Parliament would have secured such absolute power.
The UK holds such significant positions, such as a found EU membership that to have one distributer of power would cause the system to run ineffectively. Our membership within the UK, for example, undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy. Certainly fitting in with a national narrative that can be traced back past the Bill of Rights 1688 to Magna Carta in 1215, this narrative has proved very enduring; it places parliament as the central bastion of our liberties.