Parliament as Sovereign

Joanne Tutt examines the extent to which the idea of parliamentary sovereignty exists in the UK today.

AV Dicey claimed that Parliament is sovereign and that there is no higher power within the UK.  The ideas can be summarised as follows; Parliament can make or unmake any laws, no other body can challenge the will of Parliament and that Parliament’s cannot bind each other. How far is this statement true today? And has subsequent legislation and case law eroded away this idea of ultimate power? This article will explore the idea of Parliamentary sovereignty and the challenges to it.

The Act of Union 1707 abolished the Scottish and English Parliament and created the British Parliament.  Some Scottish lawyers argue that ‘Westminster Parliament is not free to legislate, because it was born subject to terms of its creations.’ In reality Parliament could not undo the Treaty in which it was created from. In MacCormick v Lord Advocate Lord Copper said that ‘why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament.’  This issue challenges the idea that Parliament is sovereign because it is subject to terms, it also raises the issue that Parliament here is bound by it successors.

The Parliament Acts of 1911 and 1949 are also significant because they changed the composition of Parliament. The Acts significantly changed the role of the House of Lords, by reducing their power of veto and allowing the House of Commons to over pass the Lords when they repeatedly veto bills. This power has only been used a handful of cases, the most prominent is the Hunting Act 2004. In the case Jackson v Attorney General it was argued that the 1949 Act was illegal, if it was then it would invalidate the ban.
Nevertheless, Parliament cannot pass laws that extend its own life or abolish the House of Lords, without the consent of both Houses and the Monarch. The veto is only used in a small amount of situations, which indicate that in a majority of cases the consent of both Houses is required.

The European Communities Act 1972 was passed when Britain joined it bound the future Parliaments to the Community, which is now the Union. The Act had ‘provided for the subordination of English law to European Community law, whether an Act had been passed or to be passed.’ This shows that Parliament, by joining the Community has limited its powers, the case of Factortame which highlighted this. The case was extremely important in showing the supremacy of European law over British law. In this case it was important to see that the House of Lords put aside a British Act (Merchant Shipping Act 1988) because it prevented Community law from having full effect. The result of this case opened the question as to whether the European Union had taken away Parliament’s ultimate supremacy.

Two further cases indicate that the European Union has taken some sovereignty from Parliament, Van Gend En Loos stated that ‘states have limited their sovereign rights, albeit within limited fields’ and the case of Costa v ENEL supports this too. However, what must be remembered is that the UK is free to leave the European Union whenever it chooses, this itself gives Parliamentary sovereignty.

In contrast to Dicey’s view was that of Sir Ivor Jennings, who believed that an issue with the supremacy of Parliament is that there is no legislation or statute that entrenches the idea. Therefore, it could be questioned as to why the courts and other legal bodies recognise this. Jennings believed this and determined three steps for this argument. The first was that Parliamentary sovereignty is a common law rule and that any laws Parliament make are recognised by courts, and accepted as law, and this is the common law. The second idea is that statute is ‘legally superior to the common law’ which is the idea that statutes can alter statutes that relate to Parliamentary sovereignty. Finally, Parliament can pass Acts to ensure that ‘some Acts are protected from repeal by a simple majority in both Houses.’ Jennings’ rules contrast with Dicey’s because they are not based on the idea that Parliamentary supremacy is entrenched, but that it has developed over time.

There is also the argument that courts cannot strike down Acts of Parliament. However, in recent times this view is changing. In Lord Steyn’s obiter in Jackson v Attorney General it essentially said that there could be a situation where the courts would have to check ‘whether this is a constitutional fundamental which even a sovereign Parliament…could not abolish.’ This is a very controversial statement because it indicates that the courts would challenge Parliament, according to the doctrine of Parliamentary supremacy this is not allowed. The Jackson case highlighted that the courts believed in the supremacy of Parliament, even if it was not ‘pure and absolute’ as Dicey had believed.

Dicey’s doctrine cannot be simply ignored and seen irrelevant, however the view that Parliament holds all the power not completely true, with the devolution, the entry in the European Union and the issue that Parliament itself was not born free.