Constitutional Law
British Constitution
Topic – Parliamentary Sovereignty/Supremacy
Q.1 The British Parliament can do everything except make a woman into a man and a man into a woman. Discuss the concept and enumerate the limitations on its supremacy.
Q.2 Discuss the doctrine of supremacy of Parliament under the British constitution.
Q.3 Discuss the sovereignty of Parliament under the British constitution.
Q.4 What do you mean by Parliamentary sovereignty? How is this concept applied in the British constitution?
Q.5 Discuss the principle of sovereignty of Parliament and limitations, if any, upon the exercise of such sovereignty in Britain?
Introduction
The doctrine of Parliamentary sovereignty or supremacy is one of the fundamental principles underpinning the British constitution. Under any constitutional arrangement, there must be a source of ultimate authority. In most jurisdictions that have a written constitution, this ultimate authority is the constitution itself (e.g. Pakistan, India, United States of America). Under the unwritten British constitution, this ultimate source of authority is said to be the Parliament of the United Kingdom.
Meaning of the word ‘Parliament’
In the context of the doctrine of Parliamentary sovereignty, the word Parliament refers to the reigning monarch, the House of Lords and the House of Commons. These bodies, acting together, are defined as the ‘King (or Queen) in Parliament’. Thus, whenever we refer to Parliament, we actually refer to the combination of this trichotomy of institutions.
Meaning of supremacy/sovereignty
The Oxford Dictionary defines ‘supremacy’ as the ‘state of being superior to all others in authority, power or status’. It defines ‘sovereignty’ as ‘supreme power or authority’.
Legal and Political sovereignty
Legal theorists such as A V Dicey, Edward Coke and William Blackstone all insist upon drawing a distinction between legal sovereignty and political sovereignty.
According to these theorists, political sovereignty belongs to the people of the state (the electorate), while legal sovereignty belongs to the ‘King (or Queen in Parliament)’.
Thus, the supreme political authority is the people of the United Kingdom, while Parliament is only the supreme legal authority.
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| Professor A V Dicey |
Dicey’s formulation of Parliamentary sovereignty
The classic definition and understanding of sovereignty is derived from the work of Professor A V Dicey. In his seminal book, he underlined that the supremacy of Parliament is the ‘dominant characteristic of our political institutions’.
His elaboration of the principle allows us to extrapolate three different but interdependent limbs about the operation of Parliamentary sovereignty:
Parliament is the supreme law-making body and may enact laws on any subject matter.
No Parliament may be bound by a predecessor or bind a successor.
No person or body, including any court of law, question the validity of Parliament’s enactments.
In order to ascertain whether these postulations are correct, and whether they still hold true, we must examine the way in which they translate to the reality of the United Kingdom.
We will examine each of them in turn.
Limb I Parliament can legislate on any subject matter
The first limb of Dicey’s formulation is the simplest one. It merely means that there is no restriction or limit upon the legislative powers of the Parliament. Parliament can enact a law on any subject matter whatsoever.
Examples:
- Parliament can legislate to alter its term of office. In 1716, the Parliament, fearing the effects of an election, passed the Septennial Act extending the life of the Parliament from 3 to 7 years.
- Parliament may legislate to alter its powers. The Parliament passed the Parliament Acts of 1911 and 1949, which curtailed the legislative powers of the House of Lords.
- Parliament may grant independence to dependent states, be they dominions or colonies (e.g. Nigeria Independence Act 1960 and Zimbabwe Independence Act 1979).
- Parliament can also legislate with retrospective effect (as in the case of the War Damage Act, which overruled the decision of the House of Lords in Burmah Oil v Lord Advocate (1965)).
- Parliament can also legislate with extra-territorial effect.
Limits on this power – theoretical vs. real supremacy/sovereignty
A number of commentators have argued that this unlimited legislative power is only theoretical and does not translate into reality.
Sir Ivor Jennings gives the hypothetical example of a scenario where Parliament passes an Act of Parliament declaring that all men are now women and that all women are now men, or where it declares that it is imposing a ban on the streets of Paris. According to Sir Jennings, while this law will be valid, and it will be legal – it will simply be of no consequence. It will not be followed, and it will not be adhered to.
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| Sir Ivor Jennings |
Similarly, Sir Leslie Stephens gives the now-famous example of a scenario where the Parliament passes a law that declares that all ‘blue-eyed babies’ must be put to death. In theoretical and legal terms, this will still be a valid law. However, realistically, Parliament could not and would not enact such a law, for fear of public outcry.
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| Sir Leslie Stephens |
Limb II No Parliament can be bound
The second limb of Dicey’s formulation asserts that no Parliament may be bound by any of the Parliaments that preceded it and that no Parliament can bind any of the Parliament that such succeed it. In order for a Parliament to be supreme/sovereign in the true sense of the word, every Parliament must enjoy the same unlimited legislative powers as the Parliament that came before it.
Doctrine of implied repeal
The practical manifestation of the second limb of Dicey’s parliamentary sovereignty can be observed through the doctrine of implied repeal.
According to this concept, the judiciary will always give effect to the latest expression of the will of Parliament. Thus, if a case arises, where there are two contradictory Acts of Parliament, the courts will always give effect to the Act of Parliament which has come later in time and the earlier Act will stand as impliedly repealed.
Examples:
Vauxhall Estates Ltd v Liverpool Corporation (1932)
Ellen Streets Estates Ltd v Minister of Health (1934)
Limits and challenges to Dicey’s second limb
The second limb of Dicey’s formulation of sovereignty is said to be challenged by the following scenarios:
- The Acts of Union with Scotland and Ireland;
- Grants of independence;
- The devolution of powers;
I - The Acts of Union with Scotland and Ireland
The Acts of Union refer to two separate Acts of Parliament – the Act of Union with Scotland 1707 and the Act of Union with Northern Ireland 1800.
It has been suggested by commentators that after the Acts of Union, the new Parliament of the United Kingdom was ‘born unfree’. Such commentators claim that the Acts of Union have attained the status of a form of ‘higher law’, which cannot be altered or repealed by Parliament through its ordinary legislative process.
Dicey on the other hand, argues that the Acts of Union have no greater status than the Dentists Act 1878 or any other unimportant Act. According to Dicey, the Acts of Union have the same constitutional importance as any other Act of Parliament and can therefore be changed or altered by the Parliament in any way that it sees fit. The evidence to date clearly supports the position taken by Dicey.
Example:
Sillars v Smith (1982) – in this case it was argued that the Westminster Parliament had no authority to repeal the Scotland Act 1978 (which had created a legislative assembly for Scotland) and pass the Criminal Justice (Scotland) Act 1980. The court expressed the classic view that ‘no court of justice can enquire into the manner in which [an Act of Parliament] was introduced into Parliament’.
Universities (Scotland) Act 1853 and Parochial and Burgh Schoolmasters (Scotland) Act 1921 – requirement that teachers must belong to the Protestant faith was removed.
II - Grants of independence
Another challenge to the idea that a Parliament cannot bind its successors is grants of independence. As noted above, Parliament has the power to grant independence or partial competence to a dominion or territory.
The Statute of Westminster 1931 was enacted to give force to the constitutional convention that the United Kingdom Parliament would not legislate for dominions without their consent. The question that arises is whether the Parliament can in the future revoke such a grant of partial competence.
In British Coal Corporation v The King (1935), it was declared by the Privy Council that as a matter of ‘abstract law’, the Statute of Westminster could be repealed, but that this could not happen in practice since ‘legal theory must march alongside practical reality’.
However, it may be said that this only a declaration of one of the practical, extra-legal limitations on sovereignty, and not a legal limitation.
III - Devolution of powers
Through the Scotland Act, Government of Wales Act and Northern Ireland Act 1998 – the Westminster Parliament gave up a significant amount of its legislative competence to the newly established Parliaments of Scotland, Northern Ireland and Wales respectively. Thus, each of these territories now has its own form of local governments and local assemblies.
By convention, the Westminster Parliament no longer legislates on matters that have been devolved to these subordinate Parliaments, and does not even discuss their domestic affairs. In such circumstances, the question that arises is whether Parliamentary sovereignty remains intact?
Theoretically, two aspects of sovereignty remain. Firstly, Westminster could still pass an Act of Parliament for the devolved territories contrary to the wishes of the subordinate Parliaments. While this would lead to political problems, the laws passed would still be valid. Secondly, Westminster could pass an Act of Parliament abolishing the Scottish Parliament and therefore reclaim all devolved powers.
While this could happen theoretically – it is almost impossible that this would occur in reality, without causing a political breakdown in the United Kingdom.
Limb III No one can challenge an Act of Parliament
When an Act of Parliament has been passed through the proper legislative stages and received royal assent, no court of law can invalidate or question such an Act. It will be upheld, no matter the subject of the law. This is the classic position taken by the judiciary (Pickin v British Railways Board (1974)).
Contemporary challenges to parliamentary sovereignty
There are two contemporary challenges to Parliamentary sovereignty that must be considered:
- Member of the European Union
- Human Rights Act 1998
Membership of the European Union
Through the European Communities Act of 1972, the UK became a member of the European Communities (now the European Union).
According to the European Court of Justice (ECJ), when member states become accepted into the European Union, they limit their own legislative competence in all matters over which the EU has jurisdiction. In such matters, ultimate legislative supremacy belongs to the EU. Thus, whenever there is conflict between a domestic law and EU law – EU law is supreme. This has been established in a string of cases: Costa v ENEL (1964), Van Gend en Loos (1963), Simmenthal (1977) etc.
Slowly and steadily, the UK judiciary has also upheld the supremacy of EU law. In Macarthys v Smith (1979) and Garland v British Rail Engineering Ltd (1983), the courts declared that the age-old notion of implied repeal did not apply to the ECA 1972. Instead, if the Parliament wished to deviate from EU law, it would have to expressly do so in an Act of Parliament.
For reasons such as the aforementioned, it has been suggested by some theorists such as HWR Wade that with the ECA 1972, the UK Parliament has, for the first time ever, ‘entrenched’ an Act of Parliament so as to bind future Parliaments.
However, this position is open to challenges. It may be argued that despite appearances, the Parliament’s sovereignty remains intact. The ECA 1972 is simply an Act of Parliament like any other, through which, the UK Parliament has ‘voluntarily’ given away some of its legislative capacity. If the UK Parliament wished, it may deviate from EU law and the judiciary would give effect to this deviation.
NOTE: Recent developments such as the BREXIT referendum indicate that the Diceyan view of Parliamentary sovereignty remains intact. Now that the referendum has shown that the British populace wishes to leave the EU, convention dictates that Parliament will have to follow suit and activate Article 50 of the Lisbon Treaty, thereby beginning the proper procedure for UK’s exit from the EU.
Human Rights Act 1998
The newest challenge to the classic formulation of Parliamentary sovereignty is the coming into force of the Human Rights Act of 1998. The HRA incorporates into domestic UK law, all ‘fundamental rights’ protected and enshrined under the European Convention on Human Rights.
The parts of the HRA that create complexity are primarily sections 3, 4 and 19.
Section 3 – mandates that judges must interpret all legislation in a manner, which is compatible with Convention rights.
The reason why this provision is such a potent mechanism for undermining Parliamentary sovereignty is because it allows judges to exercise a significant amount of creativity in attempting to interpret statutes. At times, it allows judges to undermine completely, the will of Parliament. Example: R v A (No. 2) (2001).
Section 4 – allows judges to issue a ‘declaration of incompatibility’ if an Act of Parliament is incompatible with Convention rights.
Some commentators have argued that section 4 empowers judges to undermine parliamentary sovereignty, however, this position is untenable. While a ‘declaration of incompatibility’ may damage the credibility of the Act, it does not invalidate the Act of Parliament.
Section 19 – mandates that a Minister, at the second reading a Bill for which he is responsible, must give a declaration that it is compatible with Convention rights.
As with most challenges to the doctrine of Parliamentary sovereignty, it is important to distinguish between what is a legal or theoretical limitation and what is a practical, extra-legal or political limitation. The HRA 1998 imposes a great number of practical and political limitations, but at the end of the day, if the Parliament wished to repeal the HRA, it can do so.
NOTE: In fact, with Theresa May in charge of Britain at the moment, there is increasing talk that the Conservative government wishes to scrap the HRA 1998 and create a ‘British Bill of Rights’.
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