Parliamentary sovereignty in the United Kingdom

Main article: Parliamentary sovereignty in the United Kingdom

History

Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined 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.

—A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)

During the 17th century the idea grew in England that parliament (House of Lords and House of Commons) shared in the sovereignty, based on an entirely erroneous notion of the history of parliament.^[6] It was not until the changing of the Coronation Oath in the Coronation Oath Act 1688 as part of the Glorious Revolution that Parliament was recognised as part of the constitutional structure, with laws being considered to emanate from parliament and not just the King.^[7] It is arguable whether the concept of parliamentary supremacy arose from the Acts of Union 1707 or was a doctrine that evolved thereafter.^[8] After 1689 English parliamentary supremacy began to be seen in the relation of the English parliament to those of Scotland and Ireland. The Act of Settlement 1700 made a presumption upon Scotland: the Scots retaliated with the Act of Security 1704, which was countered by the Alien Act 1705: the issue was settled by the Union of English and Scottish parliaments in 1707 which created a new British parliament, though "in essence it was just an extension of the English parliament".^[9] The autonomy of the Irish parliament also came under attack and the Declaratory Act 1720 made the Irish parliament a dependency. The so-called Constitution of 1782 removed British parliamentary supremacy for a short period but then the Irish parliament was merged with Britain's in the Acts of Union 1801.
The doctrine of parliamentary supremacy may be summarised in three points:

• Parliament can make laws concerning anything.
• No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).
• A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.

Some scholars and judges have questioned the traditional view that Parliament cannot bind itself, arguing that it can impose procedural (or "manner and form") restrictions on itself, since the legislature must be constituted and regulated by legal rules.^[10]
The notion of parliamentary sovereignty began to be challenged with the Parliament Act 1911 which changed the nature of what was meant by parliament, as Dicey regretfully noted in the Introduction to the 8th edition of his Introduction to the Study of the Law of the Constitution (1915) , but that while the reality was now Cabinet and political party were supreme (pp lxxii-lxxiv), in law parliament was still sovereign albeit that "the share of sovereignty" of the Commons had increased (p xlii).
Parliamentary sovereignty was further undermined by the Irish Free State Constitution Act 1922, which effectively recognised the concept of consent rather than the law as the source of legitimacy, and the United Nations Act 1946 which bound the UK to an external organisation and restricted parliament's absolute sovereignty. In theory Parliament could repeal the Act and withdraw from the United Nations.
Parliament also renounced its sovereignty over the legislatures of former dominions and colonies in the British Empire. Following the Balfour Declaration, the Statute of Westminster 1931 established a status of legislative equality between the self-governing dominions of the British Empire and the United Kingdom, and provided that Acts passed by the UK Parliament would not apply in the dominions without a dominion's express consent. It is difficult to see how the UK could later resile from that position. By way of further 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. 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."^[11] However, such renunciatons do not affect the concept of parliamentary sovereignty.
European law does not recognise the British concept of parliamentary supremacy.^[12] The UK courts currently recognize the supremacy of EU law on those subjects where the EU can legislate.^[13][14] However, this supremacy conceptually derives from the European Communities Act 1972 and its successors, which could in theory be repealed by a future parliament. No sovereign state has ever left the EU, but since the passage of the Treaty of Lisbon in 2009 there is now a defined process for doing so.

[edit] Scotland

Some jurists have suggested that, following the Act of Union 1707, the principle of parliamentary sovereignty may not apply in Scotland. Although no Scottish court has yet openly questioned the validity of an Act of Parliament, certain judges have raised the possibility. Thus, in MacCormick v. Lord Advocate, the Lord President (Lord Cooper) stated that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law", and that legislation contrary to the Act of Union would not necessarily be regarded as constitutionally valid. Also, in Gibson v Lord Advocate, Lord Keith was circumspect about how Scottish courts would deal with an Act which would substantially alter or negate the essential provisions of the 1707 Act, such as the abolition of the Court of Session or the Church of Scotland or the substitution of English law for Scots law.
The establishment of the Scottish Parliament has meant that area of parliamentary supremacy is redefined.^{[citation needed][original research?]} For example, nuclear power is not within its competence, but the Scottish government successfully blocked the wishes of the UK government to establish new nuclear power stations in Scotland using control over planning applications which is devolved.^[15] While it remains theoretically possible to dissolve the Scottish Parliament or legislate without its consent in relation to Scotland, in practice such a move would be politically difficult.

[edit] England and UK generally

Parliamentary supremacy is blamed by contemporary legal historians for the failure of English law to develop due process in the American sense (that is, a mechanism for protecting the human rights of individuals from being arbitrarily infringed by the government).^[16]
The doctrine of parliamentary supremacy, in English Law, has been upheld in 2005 by Lord Bingham in the case of R (Jackson) v Attorney General:

The bedrock of the British Constitution is … the Supremacy of the Crown in Parliament.^[17]

Such a theory might not, however, work in practice. In 2004, the Government sought to pass the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which contained a comprehensive "ouster clause", which would have excluded judicial review of decisions on applications for asylum. There was uproar among judges and lawyers, and the Lord Chief Justice, Lord Woolf, went so far as to suggest that if the clause were to become law, the courts would simply refuse to apply it.^[18] With a constitutional crisis looming, the government backed down, and the clause became law in a much-diluted form. It should be noted that following the case of Factortame, which involved an ouster clause in the Merchant Shipping Act 1985, the court can obfuscate such ouster clauses by basing decisions on the "will of Parliament".
However there is a distinction to be made between legal sovereignty and political sovereignty. Parliament is not politically sovereign, which means that if Parliament does pass unpopular or oppressive legislation, then it may not be applied in practice. However this does not necessarily mean that Parliament is not legally sovereign. It is argued that nonetheless Parliament can legally pass any legislation it wishes. This point is made clearly by Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645:

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts would not hold the Act of Parliament invalid.'^[19]

[edit] Recent developments

In recent years some judges and scholars in Britain and New Zealand have questioned the traditional view that parliament is sovereign.^[20] Others, however, have rejected these arguments.^[21] Various constitutional changes in the United Kingdom have influenced the renewed debate about parliamentary sovereignty:

1. The devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly). All three assemblies can pass primary legislation within the areas that have been devolved to them, but their powers nevertheless all stem from the UK Parliament and can be withdrawn unilaterally. The Northern Ireland Assembly, in particular, has been suspended multiple times due to political deadlocks.
2. The UK's membership of the European Economic Community, later the European Union, from 1973. The EU represents, as the European Court of Justice ruled in 1963 in the case Van Gend en Loos, a "new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields". The UK became part of that legal order, though as UK membership of the EU has been brought about through Acts of Parliament – principally the European Communities Act 1972 – there is in principle the possibility that Parliament could, as a matter of UK law, pass further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK. In practice, any Act purporting to withdraw from the European Union would have to be passed in parallel with the withdrawal procedure laid down in Article 50 of the Lisbon Treaty, whereby a Member State would notify the European Council of its intention to secede from the Union and a withdrawal agreement would be negotiated between the Union and the State. The Treaties would cease to be applicable to that State from the date of the agreement or, failing that, within two years of the notification.
3. Following the case of Thoburn v Sunderland City Council certain statutes are perceived to be protected as Constitutional Statutes. The case involved amendments to the Weights and Measures Act 1985 by the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 pursuant to Directive 80/181/EEC. This stated that Imperial measurements could be displayed so long as the metric measurements were displayed in larger type beside them. Thoburn was convicted for only displaying Imperial measurements. In his defence he argued that allowing even limited use of Imperial measurements was inconsistent with the European directive and therefore in contravention of Section 2(2) of the European Communities Act 1972, and that the relevant section of the 1972 Act had therefore been implicitly repealed. However, the judgement by Lord Justice Laws held that certain statutes of constitutional importance, including Magna Carta and the European Communities Act 1972, could not be repealed by implied repeal. The case also introduces the concept of a 'hierarchy of acts', which is used in other European countries,^[22] to English constitutional law. However if Parliament did make its intention to overrule any statute express then any statute can be repealed, and so sovereignty is preserved.
4. The enactment of the Human Rights Act 1998 which incorporates part of the European Convention on Human Rights into domestic law. The Act gives UK courts the power to issue a declaration of incompatibility where they believe that the terms of an Act of Parliament are in contravention of the rights guaranteed by the Human Rights Act. The effect of the declaration is not to annul the contravening Act but to send a signal to Parliament which may then choose to amend the offending provision. This does not endanger Parliamentary sovereignty because Parliament may choose not to amend the offending provisions. As with the UK's membership of the European Union, the principle of parliamentary supremacy means that Parliament can at any time vote to repeal the Human Rights Act, and indeed the UK's ratification of the Convention itself.

However, Parliament may theoretically withdraw from commitments it has made or repeal any of the constraints it has imposed on its ability to legislate.