Parliamentary Supremacy as the dominate characteristic of political institutions
The constitutional theorist A.V Dicey summarised Parliamentary Supremacy as “the dominate characteristic of political institutions”, “the very keystone of the law of the constitution.” “The principle of parliamentary sovereignty means neither more nor less than this….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 the right to override or set aside the legislation of parliament.” The magnitude of such an ideal on democratic society can be undisputed, but to explore its relevance today it is necessary to investigate its history and functional mechanisms.
The supremacy of Parliament was initially formed by the 1688 Bill of Rights. This followed a period of history known as the “Glorious Revolution.” The function of the Bill was to provide dilution of the sovereignty of the monarch, following the forced abdication of James II. It was a time of upheaval and religious division. The power shift towards the sovereignty of parliament aimed to provide a more democratic solution, with representation by the people’s representatives.
Parliamentary supremacy gives parliament, (which can be summarised as the 3 pillars of the House of Commons, the House of Lords and the monarchy,) the ultimate authority for the creation of law. However, this creates a division between those who create the Acts (Parliament) and those who implement the Acts (the Courts.)
The theory of natural and divine law was long held to govern long before the Bill of Rights. “In many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant or impossible to be performed, the common law will control it, and adjudge such an Act to be Void.”
A proposition by A.V Dicey suggested that the concept of parliamentary sovereignty has two parts, both a
positive and negative strand. The principle proposed by the positive strand, is that Parliament can make or unmake any law whatsoever. The only limitation is that it is approved via majority vote in the House of Commons, reaffirmed by the House of Lords and then the mere formality of gaining royal approval (royal assent.) It is worth noting that approval can be given without the confirmation of the House of Lords.
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Without limitations legislation can be passed on any subject. This has been proposed by Parliamentary legislation which changed the order of succession to the throne, via the Declaration of Abdication Act 1939. This could be seen to support the separation of powers.
The lack of geographical limits removes boundaries to compliance with international law. As an island nation the case of Mortensen v Peters was especially prevalent. Most nations accepted that jurisdictions extended for three miles from national coastlines. This had been signalled by signed treaty in 1906. However, when a Norwegian trawler was convicted for a breach according to the Herring Fishery Act 1889. This contradicted the International treaty, due to its proximity from the shore. The court ruled “In this Court we have nothing to do with . . . whether an act of the legislature is ultra vires as in contravention of generally acknowledged principles of international law. For us, an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms’
The conclusion reached by the courts in Mortensen v Peters is consistent with Diceyan theory and Parliamentary Sovereignty. As an international treaty is reached by government and not Parliament, it is not legally enforceable until it is made an Act by Parliamentary law, thus incorporating it into U.K legislation. This was reaffirmed by the case of Cheney v Conn. In this case it was claimed that money from tax given under the Finance Act 1964 would be used in a way contrary to international law. The court however decided that it was not their duty to say whether the contents of the Act were just, merely it was their job to apply the Act, irrespective of fairness or justice
This positive strand highlighted by Diceyan theory highlights the legal authority Parliament is given when imposing legal effect on the basis of its own political and moral values. This freedom highlights Parliamentary sovereignty as a flexible constitutional tool and illustrates a vast degree of power. However, a significant limit is imposed on Parliaments potential conduct, which could be said to contradict and limit this ideal. Parliament cannot bind its self or its predecessors. Therefore it cannot entrench legislation which is immune to amendment or repeal. This means that there is a “continuing theory” making parliament perpetual in as much it makes the new anew each time it meets, therefore it does not need to follow what has gone before. Dicey was an advocate of this notion.
Without entrenchment Acts can be repealed if deemed necessary. This can occur via express repeals, whereby express words are used in a statue to repeal earlier legislation. Or implied repeal, where two statutes are mutually inconsistent, the later statute repeals the earlier statute. In the case of Vauxhall Estates Ltd v Liverpool Corp the facts centred around slum clearance and the compulsory acquisition of land as covered by The Acquisition of Land Act 1919. The Act stated compensation amounts and dictated that it should prevail over other legislation. This contradicted The Housing Act 1925 which provided a smaller settlement. It was found that the later act impliedly repealed the 1919 provision.
In contrast to “continuing theory” “self-embracing theory” argues that the supremacy of Parliament should allow it to bind itself. This academic argument has gathered weight since its proposition by Sir Ivor Jennings. ‘“Legal sovereignty” is merely a name indicating that the legislature has for the time being power to make laws of any kind in the manner required by law. That is, a rule expressed to be made by the Queen, [the House of Commons and the House of Lords] will be recognised by the courts, including a rule which alters this law itself . . . The power of a legislature derives from the law by which it is established. . . . In the United Kingdom . . . it derives from the accepted law, which is the common law.’
The view of Sir Ivor Jennings and the self-embracing theory seems to carry more weight in light of the Preamble towards the Parliament Act 1911 removing the power of the House of Lord’s to challenge legislation. Therefore creating a void whereby the House of Common’s had become unchallenged. Entrenchment could of provided a level of clarity and certainty in this regard.
So far the overall interpretation of Parliamentary sovereignty has illustrated the core principles akin to the pure notion proposed by Professor Dicey. Although recent cases have helped highlight the response of this mechanism in light of various duties. The real test when answering the question of its constitutional relevance today comes from the implications imposed on its rule of supremacy. It is would be very hard to deny that the following factors have not diluted the constitution relevance of Parliament: The devolution of power to bodies such as the Scottish Parliament and Welsh Assembly, the Human Rights Act 1998, The UK’s entry to the European Union 1972 and the recent establishment of the Supreme Court. The following analysis will provide detail regarding the significance of each factor and its impact.
The devolution of power has given regional assemblies their own legislative powers. Assemblies in Scotland (Scottish Parliament), Wales and Northern Ireland can now pass their own primary legislation. Rather than weaken the Supremacy of the U.K Parliament it could be stated that such measures have actually strengthen it. The British parliamentary sovereignty is still absolute, even with regards to Scotland’s Parliament. The Scotland Act 1998 is devolution via U.K legislation article 28 states. “This section does not affect the power of Parliament of the United Kingdom to make laws for Scotland.” The UK Parliament will still retain authority over constitutional and foreign affairs. Although geographical limitation of legality is a factor that has deviated from Dice’s positive strand, this only applies to colonial independence.
The single greatest limitation to Parliamentary supremacy has been the UK’s entry into the European Union in 1972, through the European Communities Act 1972. The role of the European Union in nationalistic law is summarised in the case of Van Gend En Loos “…new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields."
The new supremacy of EU law on the constitution of the UK was highlighted in the case of Factortame.The UK Government enacted the Merchant Shipping Act 1988. The EU’s ability to block the application of nationalistic law is a prime example of the erosion of Parliamentary sovereignty. Subsequent cases have provided similar results, most notably McCarthy Ltd v Smith. When faced with a statute which had been unenforceable by EU law, Lord Denning stated. 'It is important now to declare and it must be made plain that the provisions of article 119 of the EEC Treaty take priority over anything in our English statute on equal pay which is inconsistent with article 119. That priority is given by our own law. It is given by the European Communities Act 1972 itself. Community law is now part of our law and, whenever there is any inconsistency, Community law has priority."
Both these cases highlight the acceptance of European legislation as a feature of our own constitution. Although it could be said that Parliamentary sovereignty is still a foundation of our constitution it has been diluted most notably by EU law. This may seem a far cry from the pure form of sovereignty proposed by Diceyan ideals. However given the progression of time, such change could be expected. The influence of World War II should not be underestimated, not just in ratifying Europe but the consequence of democratically elected fascist regimes.
The very fact that devolution and European community law could be suspended by Parliamentary legislation means that although less prominent the significance will intertwine and regulate future ideals into our constitution. In essence Parliament will also remain as a significant supreme mechanism.
Dicey 1964 39, 70
Dicey the law of the constitution 10th ed 1965
(Coke CJ) Dr Bonham’s Case (1610) 8 Co rep 114
1911-49 Parliament Acts
Mortensen v. Peters  8F. 93. 207.
Ibid, at 230. The term ultra vires literally means ‘beyond the legal powers’. If a body is legally
Sovereign, nothing can be beyond its powers. The ultra vires doctrine thus could not be applied to Parliament,
but as we shall see in subsequent chapters, it has an important role in respect of other governmental organisations.
Cheney v. Conn (1968) 1 AER 779
Vauxhall Estates Ltd v Liverpool Corp (1932) 1KB 733
Op cit at pp 152–153 and 156; original emphasis.
Section 28(7) SA 1998, - “This section does not affect the power of Parliament of the United Kingdom to make laws for Scotland”.
NV Algemene Transporten Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration  ECR 1
R v Secretary of State for Transport, ex parte Factortame (No 1) (Case C221/89  3 WLR 852)
Macarthys Ltd v Smith  3 A U E R 3 2 5 ; [ I O 8 I ] Q B 180