DISCLAIMER: all information in these module reviews are taken from our own notes and research so please do not cite this in your work. This summary also includes notes from my course provided textbook, 'Constitutional and Administrative Law' by Roger Masterman and Colin Murray.
Welcome to the fourth instalment of our Module Reviews!
In January leading into February, the focus will be on Public Law. For today's review, the topic featured is 'Parliamentary Sovereignty'. In general, this topic is quite large and involves a significant amount of case law and academic commentary. As a result, I have tried to cover the aspects which are most important for a basic understanding of parliamentary sovereignty, with pointers for extra reading and research which helped me when I was revising this topic.
What is it?
In a basic definition, parliamentary sovereignty makes Parliament the supreme legal authority in the UK which can create or end any law. In general, the UK courts cannot overrule its legislation.
Dicey advanced the notion of parliamentary sovereignty, stating that Parliament has ‘under the English constitution, 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.’
Some of the Features of Parliamentary Sovereignty
I have listed below some of the most important features of parliamentary sovereignty that I believe are vital for a basic understanding of the principle.
Parliament has unlimited law-making power in the sense that it can make any kind of law.
The legal validity of laws made by Parliament cannot be questioned by any other body.
Parliament cannot bind its successors (dead hand principle) – because Parliament can legislate on anything, even if a previous Parliament has tried to bind the current Parliament, the current Parliament can simply introduce new legsaltion that overrules the previous Parliament.
Case Law
Given that the legal principles cannot be questioned by any other body, it is important to understand where the UK courts stand. There have been multiple pieces of case law discussing parliamentary sovereignty in the UK courts. I have listed below some case law which evidences this idea of parliamentary sovereignty and its recognition in the courts. These are really interesting cases to read through to show the UK courts’ stance on parliamentary sovereignty.
Lee v Bude and Torrington Railway Co (1871) LR 6 CP 577, 582. – showed the courts recognised parliamentary sovereignty.
Dr Bonham’s Case (1610) 8 Co. Rep. 115.
Stockdale v Hansard (1839) 9 Ad and E 1, 108-109 – statutory instruments do not fall under the doctrine of parliamentary sovereignty.
Pickin v British Railways Board [1974] AC 765, 787 – the court has no authority to question how Parliament came to passing an Act – so long as an Act says something, it is law.
Blackburn v Attorney-General [1971] 1 WLR 1037, (Lord Denning) – Parliament can do anything it wants, but is politically unlikely to.
R v Secretary of State for Transport, ex parte Factortame (No. 2) [1991] 1 AC 603, 658 - concerns the application of EU law for Member States, specifically the UK.
Challenges to Parliamentary Sovereignty
The UK has seen various developments over the years which have limited the application of parliamentary sovereignty. While these developments do not undermine the principle as Parliament could always repeal any laws implemteting these changes, they are still good examples of how the principle can be limited slightly.
The UK’s joining of the European Union in 1973 is one of these develpments. Simply put, through joining the EU Member States transfer a certain amount of sovereignty to the EU. It is argued though that ultimately the UK Parliament remained sovereign throughout its time in the EU as it always had the ability to leave through its triggering of Article 50 to leave the union.
The 1998 Human Rights Act, which brought the European Convention on Human Rights into UK law, is also seen as a way of limiting parliamentary sovereignty. This is because courts can issue a ‘declaration of incompatibility’, meaning they can announce that a statute is incompatible with the Act. While this is seen as a challenge to parliamentary sovereignty to some, it must be noted that the courts cannot disapply the legislation but meely declare it incompatible. In this sense, the court’s ability to make declarations of incompatibility enables the courts to hold Parliament accountable to an extent, but it only challenges parliamentary sovereignty minimally. See the case of · R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326, 367. Specifically, Lord Steyn's speech is very helpful.
Academic Commentary
I hope that this review has given you a basic understanding of parliamentary sovereignty. If you want to advance your knowledge of this topic and get some academic commentary on this topic, I have included a list of some quotes from academics that I found useful to give myself an idea of some of the schools of thought amonst scholars.
Joseph de Maistre (1819), quoted in F. Ridley, ‘There is no British Constitution: A Dangerous Case of the Emperor’s Clothes’ (1988) 41 PA 340, 348: ‘They say that in England sovereignty is limited. Nothing could be more false. It is Royalty which is limited in that famous country. But if the three powers which constitute sovereignty in England (Crown, Lords and Commons) are of one mind, what can they do? One must reply with Blackstone: Everything. And what can legally be undertaken against them? Nothing.’
K. Ewing, ‘Just Words and Social Justice’ (1999) 5 Review of Constitutional Studies 53, 55: 'Parliamentary Sovereignty may be ‘a constitutional principle acquired before the advent of democracy, but it remains one which might be said to be the most democratic of all constitutional principles.’
C. Munro, Studies in Constitutional Law (2nd Ed, Butterworths, 1999) 136: ‘It is evident that if every succeeding Parliament is to enjoy the same degree of legislative authority as its predecessors, then attempts to bind subsequent Parliaments do not succeed. … To say that Parliament “cannot” bind its successors is like saying that Parliament cannot require good weather over England or cannot turn a woman into a man: “cannot” in these contexts means “is not able effectively to”.’
M. Gordon, ‘The Conceptual Foundations of Parliamentary Sovereignty’ [2009] Public Law 519, 519: ‘In modern times, the traditional understanding of the doctrine of parliamentary sovereignty, derived from Dicey, has come under increasing pressure. The most significant source of stress on the orthodox conception of the doctrine is the supremacy of European Community law over domestic law.’
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