The Supremacy of Parliament

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom…” (Lord Steyn in R (Jackson and Others) v. Attorney General)

Discuss.

For the sake of clarification, the term ‘parliamentary supremacy’ should be defined and elaborated upon before discussing how the doctrine of Parliamentary Sovereignty could be said to be out of place in the modern United Kingdom.

The Doctrine Of Parliamentary Sovereignty Explained

The ‘basic principle’ of the English constitution can be summed up simply: A statute, that is, a piece of legislation produced and passed by the Parliament, is generally regarded as the highest form of law within the constitutional structure. The Parliament is said to be a sovereign law-maker. This concept is derived from a legal theory articulated by an Oxford law professor from the nineteenth century, A.V Dicey in the book, ‘An Introduction To The Study Of The Law Of Constitution’.

The doctrine of parliamentary supremacy can be summarised in three points:

1. The Parliament can make laws concerning anything.
2. No Parliament can bind a future Parliament (it cannot pass a law that cannot be reversed by a future Parliament)
3. A valid Act of Parliament cannot be questioned by the court.

Here we can see the application of the concept that the Parliament is the supreme lawmaker. In layman’s (and somewhat cynical) terms: “England is not governed by logic, she is governed by Parliament” and “Parliament can do anything except make a man a woman and a woman a man”.

The above quotes illustrate the power bestowed upon the Parliament upon the state (or sovereign state) and its omnipotence in its ability to make or unmake a law concerning anything whatsoever. If two Acts of Parliament cover the same subject, the earlier Act will be repealed by the later Act in what is known as ‘the doctrine of implied repeal’. On the fact that the courts may not question an Act of Parliament, Art 9 of the Bill of Rights states that a Bill is to be treated as an Act when it appears on the Parliamentary Roll.

Changes In Parliamentary Sovereignty: Developments, Changes, And Modernisation

In the course of history, it is inevitable that the doctrine of Parliamentary Sovereignty and its concepts would undergo developments, thus bringing about the possibility that the original ‘pure and absolute’ doctrine may one day be out of place in the modern United Kingdom.

The doctrine of Parliamentary Sovereignty prevents judicial review of any legislation passed by the Parliament. However, due to certain events, the notion of Parliamentary Supremacy was influenced and therefore modified, altering the otherwise complete sovereignty of Parliament. In its modification, Parliamentary Sovereignty can be seen to have been somewhat modernised as time passes, limiting its supremacy in some ways:

1. 1. A devolved government resulting in the granting of powers to regional assemblies in Scotland, Wales, and Northern Ireland.

This means that all three assemblies can pass primary legislation in areas devolved to them. The system remains non-federal.

2. 2. The United Kingdom’s membership into the European Union since 1973.

The European Court of Justice ruled that the European Union was a “new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights”. The United Kingdom, as a part of the European Union, limited its sovereignty over state to a certain extent. However, some argue that the decision in Factortame leaves the doctrine intact and absolute and in his judgment, Lord Bridge suggest that the Parliament had chosen to exercise rather than surrender its sovereignty.

3. 3. Certain statutes are protected as Constitutional Statutes.

In the case of Thoburn v Sunderland City Council, Lord Justice Laws held that certain statutes of constitutional importance including Magna Carta and the European Communities Act 1972 could not be repealed by the doctrine of implied repeal (explained earlier). This, as well , limits the Parliamentary Sovereignty.

4. 4. The enactment of the Human Rights Act 1998.

This Act gives the courts the power to issue a declaration of incompatibility when they believe that the terms of an Act of Parliament are not in line with the rights guaranteed by the Human Rights Act

Theoretically, the Parliament remains almost entirely sovereign and the doctrine of Parliamentary Sovereignty remains untouched. In particular, the legislative supremacy of the Parliament has not been affected. It can therefore be said that legal sovereignty is not lost, as the Parliament maintains its powers based on the doctrine of Parliamentary Supremacy. However, although it is well within the Parliament’s capabilities to simply leave the European Union as well as abolish the devolved government, it is clear that it is highly unlikely that such an event would happen due to obvious political restrictions in the modern world.

Conclusively, A.V Dicey’s doctrine of Parliamentary Sovereignty, though still intact, pure and absolute in terms of the Parliament’s legal sovereignty, is otherwise limited in terms of political sovereignty. This, perhaps, is the reason that the traditional doctrine has been said to be ‘out of place’ in the modern United Kingdom.