History In Medieval England, legislative power was exercised by the Sovereign acting on the advice of the
Curia regis, or Royal Council, in which important magnates and clerics participated and which evolved into parliament. In 1265,
the Earl of Leicester irregularly called a full parliament without royal authorisation. Membership of the so-called
Model Parliament, established in 1295 under
Edward I, eventually came to be divided into two branches: bishops, abbots, earls, and barons formed the
House of Lords, while the two knights from each shire and two burgesses from each borough led the
House of Commons. The king would seek the advice and consent of both houses before making any law. During
Henry VI's reign, it became regular practice for the two houses to originate legislation in the form of bills, which would not become law unless the sovereign's assent was obtained, as the sovereign was, and still remains, the enactor of laws. Hence, all Acts include the clause "Be it enacted by the King's (Queen's) most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows...". The
Parliament Acts 1911 and 1949 provide a second potential preamble if the House of Lords were to be excluded from the process. During the 17th century in England, a notion developed that
Parliament (made up of the
House of Lords and
House of Commons) shared in sovereignty with the king, based on an entirely erroneous notion of the history of Parliament. 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. The
Bill of Rights 1689 and
Claim of Right Act 1689 were passed the following year which asserted certain rights of the parliaments of England (which at the time included
Wales) and Scotland and limited the powers of the
monarch. Furthermore, in 1698 Parliament created the
Civil List, a
financial arrangement that left the monarch reliant on Parliament for income. After 1689 English parliamentary supremacy became evident in the relation of the English parliament to those of
Scotland and
Ireland. The
Act of Settlement 1701 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 the parliaments of England and Scotland in 1707 which created a new British parliament, though "in essence it was just an extension of the English parliament". However the truth of that comment historically, legally under the Treaty of Union as implemented by the Acts of Union of 1706/7, the English and Scottish parliaments had given up their rights and sovereignty to the new, Union Parliament. Perhaps it is more correct to say that they had "pooled" their sovereignty. It is arguable whether the concept of parliamentary supremacy arose from the
Acts of Union 1707 or was a doctrine that evolved thereafter. The autonomy of the
Parliament of Ireland 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 over Ireland for a short period but then the Irish parliament was merged with Britain's in the
Acts of Union 1800. 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. 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).
England and the UK generally Parliamentary supremacy is cited by contemporary American legal historians as the reason
English law did not develop
due process in the American sense. It is also argued to be integral to the way in which England's
approach to rights and liberties evolved. The doctrine of parliamentary supremacy was demonstrated in, for example, the
War Damage Act 1965. In English Law, it was upheld in 2005 by
Lord Bingham in the case of
R (Jackson) v Attorney General: However, there is a distinction to be made between legal sovereignty and political sovereignty. Parliament is not politically sovereign, which means that if Parliament passes unpopular or oppressive legislation, then it may not be applied in practice; for example, the various civil servants who administer laws within government departments may be relied upon to use any loopholes and vague language which exists in a Bill to get around unwanted areas, and the judiciary is likely to purposefully interpret and create precedent for said laws in a similar manner. 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:
Scotland and the Acts of Union It is not necessarily the case that parliamentary sovereignty extends to changing the
Act of Union at will.
Recent developments In recent years some judges and scholars in
Britain and
New Zealand have questioned the traditional view that parliament is sovereign. Others, however, have rejected these arguments. Various constitutional changes in the United Kingdom have influenced the renewed debate about parliamentary sovereignty, discussed in the below subsections. However, Parliament may theoretically withdraw from commitments it has made or repeal any of the constraints it has imposed on its ability to legislate.
Devolution With the
devolution of power to local
legislatures in Scotland (Scottish Parliament), Wales (
Senedd) and Northern Ireland (
Northern Ireland Assembly), all three bodies 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. Particularly, in Northern Ireland, devolution dates back over a century but has been suspended multiple times due to political deadlocks and sectarian conflicts. Parliament retains the power to legislate for these three nations in any area, seen in the
Northern Ireland (Executive Formation etc) Act 2019 which altered
abortion law in Northern Ireland, which had been devolved to the Northern Ireland Assembly.
Former EU membership The UK's membership of the European Communities, later the
European Union, from 1973 until 2020, also influenced the debate around the sovereignty of Parliament. 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 – Parliament could, as a matter of UK law, have passed further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK. The repealed
European Union Act 2011 reaffirmed that sovereignty lay with the British Parliament, with section 18 stating: "Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognized and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act." The Act also required that a referendum be held when more powers are transferred to the European Union (though this could be repealed with another Act of Parliament). Alternatively, as prescribed by the
2016 Brexit referendum, an Act to withdraw from the European Union could 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 withdraw 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.
Protection of particular statutes as constitutional in nature 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 judgment 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, 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.
Human Rights Act 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 former 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. == See also ==