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Parliamentary sovereignty

From Academic Kids

Parliamentary sovereignty or Parliamentary supremacy is the concept in British constitutional law that the Parliament of the United Kingdom has sovereignty. This means it is supreme to all other governmental institutions including the monarch and the courts, and may change or repeal any legislation passed by previous parliaments with a majority. (Theoretically, the monarch is a part of the Crown in Parliament.)

The principle of parliamentary sovereignty was established over the 17th and 18th centuries during which time parliament asserted the right to name and depose a monarch. In 1648, Henry Herbert, the 2nd Earl of Pembroke, famously commented while a member of the House of Lords, said that "Parliament can do anything but make a man a woman and a woman a man."

Another classic exposition was that of Albert Dicey, in his book Introduction to the Study of the Law of the Constitution (1885):

"Parliament... has... 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 override or set aside the legislation of Parliament."

In the United Kingdom, there are three features of parliamentary sovereignty:

  • Parliament can make law in any area.
  • No Parliament can bind its successor (a Parliament cannot pass a law that cannot be changed or reversed by a future Parliament).
  • No body except Parliament can change or reverse a law passed by Parliament.

Parliamentary sovereignty prevents judicial review of local domestic law. However in the late 20th and early 21st centuries, the idea of parliamentary supremacy underwent erosion in practice from three main directions:

  • The second erosion has been in connection with institutions of the European Union, in particular the European Court of Justice which asserts the power to exercise judicial review over UK law. In this situation, an adverse finding by the Court that a UK law is inconsistent with the Treaties automatically annuls the law, since the European Communities Act 1972 provides that European Community law is supreme in the United Kingdom. The first example of this was the Factortame case. The ECA 1972 has been thought of as a 'constitutional statute'. In the case of Thoburn v. Sunderland City Council the Weights and Measures Act 1985 was held not to impliedly repeal the ECA 1972. This has also compromised the effect of parliamentary sovereignty, as the ECA 1972 must be expressly repealed 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 (including those done pursuant to an Act of the British Parliament) to be in violation of the Convention. However, decisions by the ECHR (unlike decisions by the ECJ) 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 Acts of Parliament to be in violation of the Convention; this power, like that of the European Court of Human Rights, does not automatically annul the law. However, unlike the ECHR, the British Courts have a formal procedure for the review of Acts (technically the ECHR reviews acts done by the member state, which can include both legislation but also other government actions, but the two are not distinguished), 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.
  • Another more minor area is the increasing use of referendums which take away power from Parliament, as in reality, the decision whether to pass law is made by the electorate, not Parliament. However, Parliament could still reverse decisions made by referendums, but this seems unlikely to ever happen.

However, in each case, the laws have been structured so that there is no theoretical erosion of Parliamentary supremacy. Parliament has the power to abolish or overrule any of the devolved legislatures at its pleasure, although it would be unlikely 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 provided because in the 1921, after a century of dispute, Parliament passed the Church of Scotland Act 1921 which finally agreed that it does not have sovereignty over the Church of Scotland, the established church in Scotland.

There is a concept in political science of 'legal' and 'political' sovereignty. It can be argued that legal sovereignty has not been lost, because Parliament still retains all its theoretical powers. There are no legal limits on Parliaments sovereignty. However, as it is highly unlikely 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 remains the case that the UK Parliament could do so, and that if it did, these repeals would be legally binding.

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 repeal or amend the Canada Act 1982, it would be unenforceable as Canada is no longer subject to UK sovereignty.

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