Parliamentary Sovereignty

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History

‘The Six Books of the Commonwealth’ (1576) by Jean Bodin was written during religious turmoil in Europe and was the first person to devise separation of sovereignty and the sovereign

  • He embraced the absolute conception of sovereignty i.e. the sovereign power is not subject to any other restriction
  • He said the sovereign is the source of law and the sovereign is not subject to its own law

Thomas Hobbes (‘Leviathan’ (1651)) said that sovereign power results from a social contract between individuals i.e. the sovereign has power because the people agree to it

  • He had a quasi-absolute conception of sovereignty i.e. the sovereign is not subject to his own law, but is subject to the law of nature (natural law is seen as a body of unchanging moral principles regarded as the basis for all human conduct)

John Locke (Two Treatises of Government (1689)) said that sovereign power results from a social contract between individuals and the sovereign – the sovereign is a party to the social contract so can be held accountable i.e. the people agree with the sovereign power to rule over them to live in a more harmonious society

  • He believed in a limited sovereign i.e. the sovereign must adhere to the social contract and protect individual rights
  • And he believed in a legal sovereign i.e. the sovereign is the source of law and is bound by its own law – this is where the rule of law finds its origins

Traditional conception of parliamentary sovereignty

Nick Barber (2011) defined parliamentary sovereignty as follows: “Whatever the Queen-in-parliament enacts as a statute is law”

A V Dicey’s definition (1885): “The principle of parliamentary sovereignty means 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 recognised by the law of England as having a right to override or set aside legislation of Parliament”

  • However, this is more supremacy of Statute than parliamentary sovereignty
  • But, Dicey was taking the view that supremacy of parliament is ‘the dominant characteristic of our political institutions’
  • However, although Parliament could easily be seen as the ultimate source of legal authority in the 19th century, it now that parliament is fairly restricted in its powers e.g. due to Devolution and arguably due to EU membership (at least for the time being)

Sources of sovereignty (i.e. where does the principle come from?)

It could be argued that it came from The English Revolution (1688 and the events leading to the Bill of Rights 1689)

  • 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

From the common law?

  • No Statute actually entrenches the principle of parliamentary sovereignty, so it could be argued that the courts are the source of parliamentary sovereignty and uphold the principle
  • So long as the courts uphold parliamentary sovereignty it will exist

AV Dicey and other constitutional theorists?

  • It could be argued that parliamentary sovereignty only exists because constitutional theorists have said so

All three?

  • It could be that parliamentary sovereignty exists because of all three of the above. There is no set answer and is up to you to decide

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CONTENT

Legal status of sovereignty

Whilst parliamentary sovereignty is often referred to as the essential (or most important) aspect of the British constitution, it has an ambiguous legal status.

We can point to legal sources supporting its existence, but we can also point to other legal sources demonstrating its qualified/limited status.

Three key consequences of parliamentary sovereignty

1) No institution has the power to question the validity of a statute

  • Parliament passes the law and no other institution can question the statutes made

2) If there is a conflict between an older and a newer statute, the newer statute will prevail

3) The parliament may not impose substantive limits on itself

In Pickin v British Railways Board [1974] it was said that the court cannot interfere with the sovereignty of parliament

Modern Challenges to parliamentary sovereignty: R (Jackson) v Attorney General [2005] UKHL 56

A legal challenge was lodged against the validity of the Hunting Act 2004, which criminalised the hunting of foxes with dogs. The claimants sought to have the Act quashed: this isn’t permitted in common law so this would be achieved through designating the Act as a piece of secondary or delegated legislation which may be quashed. The claimants argued the the Act was secondary or delegated legislation (i.e. not primary legislation—an ‘Act of Parliament’) because it had been passed using the Parliament Act 1911 as amended by the Parliament Act 1949

The Parliament Act 1911 allows for the House of Commons to force through most (but not all) types of primary legislation without the consent of the House of Lords. The power of the House of Lords would be limited to that of delay: it could delay the Bill until the third parliamentary session or year of the Bill being heard

The Parliament Act 1949 sought to reduce the power of delay by a further year: it would now be possible for the House of Commons to bypass the Lords over two parliamentary sessions (technically reducing the delay to little more than a year). However, the Lords did not consent to such a reduction in their powers - so the Parliament Act 1911 was invoked to pass the 1949 Act, i.e. without the consent of the Lords they allowed the 1949 Act to be passed to reduce their power

The claimants argued the 1949 Act was not a valid Act of Parliament, since the 1911 Act never envisaged that it would be use to amend its own terms i.e. they never thought they would use the 1911 Act to amend the 1911 Act. Consequently, they argued any Act passed after 1949 using the Parliament Act (as amended by the 1949 Act) would not be a valid Act of Parliament.

  • If the court had agreed with this argument then all the legislation using 1949 act would be deemed invalid – as such, 4 laws had been passed using the 1949 act → the war crimes act 1991, statute regulating elections to European Parliament (European Parliament Elections Act 1999), statute regulating age of consent for homosexuals (Sexual Offences (Amendment) Act 2000), and the Hunting Act 2004

Following existing precedent (such as Pickin v British Railways Board [1974]), the sovereignty of Parliament was ‘recognised’ by the court. The 1949 Act, as well as the Hunting Act 2004, were deemed to be valid Acts of Parliament. The court evidenced a great deal of deference towards Parliament—particularly in respect of Parliament’s ability to decide how it conducts itself and decides how an Act of Parliament may be lawfully enacted

  • So the court were clearly not prepared to get involved and limit parliament’s power

However Lord Steyn and Lord Hope wanted to emphasise that parliament was not free to do whatever it likes: “We do not in the United Kingdom have an uncontrolled constitution” –per Lord Steyn at [102]

  • “Nevertheless, the supremacy of Parliament is still the general principle of our constitution.” (Lord Steyn)

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