“It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme … Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has made provision to allow this to happen. The ECA 1972 The European Communities Act 1972, which confers precedence on EU law, is the sole example of this.” 1It cannot be disputed that Parliamentary sovereignty is a fundamental rule of the UK constitutional law but the question asks is it the “most” fundamental rule, meaning does it surpasses other rules in being the most important in constitutional law. In this essay, I aim to answer that question by first breaking down what exactly parliamentary sovereignty is and the notions underlying the true scope of parliamentary sovereignty. Then I will focus on whether I believe that parliament is indeed sovereign because if it is our most fundamental rule then surely it must be as practised as it is so rigorously preached and only after that will I discuss whether the divisional court was correct in emphasising that this concept is the most fundamental rule.
Parliamentary sovereignty is often a concept that is not get easily grasped by many people and it is often left to the judges and Ministers of Parliament to dispute, it may be that because of this lack of understanding – that on face value – parliamentary sovereignty may be deemed to be a vital fundamental concept. Yet exploration of the underlying principles may unravel the strength of this belief. I aim to simplify the concept in this essay so that even a layman reading would be able to understand the term parliamentary sovereignty.
Parliamentary sovereignty, also known as parliamentary supremacy, is a principle within the UK constitution that states that parliament is the ultimate legal authority. What is meant by this, is that on the hierarchy of legal authorities (e.g. those that create and implement laws), parliament is the highest. Parliament can create or repeal any laws it so chooses through legislation, even laws passed by previous parliaments. The only laws that parliament cannot pass are laws binding future parliaments because that then would contradict the supremacy of parliament because then the future parliament would be limited, and if parliament is limited or restricted in any form then surely it cannot be the ‘most’ superior form. Courts, Judges, Police officers cannot choose not to implement legislation whether they disagree with it or because it conflicts with their morals, it must be implemented no matter what, hence the saying. Jowell expresses this by saying “The sovereignty of Parliament can be said to be based upon judicial decisions applying Acts of Parliament: if the courts when doing this say that they must do so because they are bound by all such Acts, then they are declaring a fundamental rule, namely that effect must be given to Acts of Parliament, whatever their content.”2
Parliamentary sovereignty was brilliantly summarised by A.V. Dicey as meaning that Parliament has “the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament”,3 this has been accepted by the majority as the correct definition of parliamentary sovereignty and it will be this definition that I will place pivotal focus on.
Dicey’s understanding of parliamentary sovereignty depicted four special features: Parliament is capable to pass laws on any subject; Parliament’s laws can control the activities of anyone, anywhere; Parliament cannot bind its successors as to the content, manner and form of subsequent legislation; and Laws passed by Parliament cannot be challenged by the courts.4 This explanation shows that with the power of Sovereignty, there are no individual rights or freedoms that may not be truncated or suspended by Act of Parliament.5 Thus if parliament is indeed sovereign it has far-reaching effects and consequences. Now the question which remains to be answered is if parliament is sovereign.
There have been many debates about the question of parliament sovereignty for several reasons, most recently, the European Communities Act 1972 and the Human Rights Act 1998. Parliamentary sovereignty has often been said to be limited by the European Communities Act 1972, which is the piece of legislation that brought the UK into the Europe Union and gives legal authority for EU law to have effect as domestic law in the UK. The reason why this act was and is still controversial is because it makes all primary legislation enacted by parliament to be subjected to the requirements of EU law meaning that if a law passed by Parliament is inconsistent with EU law, the courts are obliged to strike down that legislation.6 This was often debated until it was confirmed in the case of R v Secretary of State for Transport, ex parte Factortame Ltd. and Others7, where new British legislation passed by parliament required that to register a ship in Britain, most of its owners had to be of British nationality. Subsequently, a group of fishermen from Spain requested a judicial review of this law, asserting that it had breached European Committee laws (EC laws). The Supreme Court (formerly known as the House of Lord), especially Lord Bridge stated that “we received the judgment of the European Court of Justice, affirming that we had jurisdiction, to grant interim relief for the protection of directly enforceable rights under Community law and that no limitation on our jurisdiction imposed by any rule of national law could stand as the sole obstacle.” 8 The court decided for the fishermen, they viewed that they were empowered under EC law to restrict parliamentary legislation and disregard it when it conflicted with EC law.
Parliament cannot then state to be sovereign if they have a standard to meet and pass first before their laws take effect. Bogdanor explains this well when he states “This meant that national courts would have to apply EC law in preference to inconsistent national law. The implication, therefore, was that the courts would only enforce the will of Parliament when Parliament complied with that higher order, Parliament may still be the dominant institution in the British political system, it is no longer legally omnipotent.” 9 But what many people fail to see is that for the European Communities Act 1972 to have taken effect, Parliament had to have signed it in and since it was a legislation that parliament themselves enacted then they could, again themselves repeal it. This was confirmed in R (On the Application of Miller) v Attorney General, when Lord Neuberger stated “It is also true that EU law enjoys its automatic and overriding effect only by virtue of the 1972 Act, and thus only while it remains in force. That point simply reflects the fact that Parliament was and remains sovereign: no new source of law could come into existence without Parliamentary sanction – and without being susceptible to being abrogated by Parliament.” 10 Thus, I do not think we can question parliamentary sovereignty on the basis of the 1972 Act, knowing that if Parliament chooses not to abide by EC laws and repeal the 1972 act neither the courts nor the European Union could do much about it. It is similar to the notion of being locked in a room but with the key to leave whenever you so pleased.
The European Communities Act 1972 was not the only act that was questionable of parliamentary sovereignty, the Human Rights Act 1998 was also a controversial act. The Human Rights Act 1998 allows the European Convention on Human Rights to have domestic effect in the UK. It also made changes to the UK’s constitutional law, such as the courts being given new powers. The Human Rights Act gave the courts two measures that they could use to ensure that legislation passed by parliament would be compatible with the European Convention on Human Rights. The first measure is under section 3, it gives the courts an obligation to interpret Legislation in a way that is compatible with the European convention rights, as so far as it is possible to do so.11 This means that the courts could provide a disparate interpretation what parliament had intended if it allowed the legislation to become compatible, this was established in R (Jackson) v Attorney General when Lord Hope stated that “Section 3(1) of the Human Rights Act 1998 has introduced a further qualification, as it directs the courts to read and give effect to legislation in a way that is compatible with the Convention rights. So long as it is possible to do so, the interpretative obligation enables the courts to give a meaning to legislation which is compatible even if this appears to differ from what Parliament had in mind when enacting it.”12
If it is not possible to interpret legislation in a way that ensures compatibility, then the courts can depend on section 4, HRA 1998. Section 4 allows the court to issue a declaration of incompatibility meaning that no matter how it is interpreted, it is incompatible with the European Convention on Human Rights.13 This does not cause the legislation to be struck down and if parliament wishes the legislation could still take effect, this was made clear by Lord Hoffmann in the case of R v Secretary of State for the Home Department, ex parte Simms and O’Brien when he said “In those unusual cases in which the legislative infringement of fundamental human rights is so clearly expressed as not to yield to the principle of legality, the courts will be able to draw this to the attention of Parliament by making a declaration of incompatibility. It will then be for the sovereign Parliament to decide whether or not to remove the incompatibility.”14 Ultimately, there is no power given to the courts to strike down legislation in the Human Rights Act. Although, it is true that parliament tends to change legislation that is incompatible with the European convention rights, but it does so for political reasons, such as to ensure harmony within the European Union, to keep Human activists happy and to prevent backlash from the public, rather than for legal reasons. Lord Hoffmann also saw this reasoning, “Parliamentary sovereignty means that Parliament can if it chooses, legislate contrary to fundamental principles of human rights. The constraints upon its exercise by Parliament are ultimately political, not legal.”15 Thus, demonstrating that they are still the legal supremacy of the UK. The Human Rights is similar to the 1979 act in that it can be repeal by parliament if they are ready to face the political consequences and they would legally be entitled to do such.
Now that it is clear what is meant by parliamentary sovereignty and I have shown how parliamentary is still the dominant legal authority, I want to address the question and discuss why I believe that the Divisional Court was correct to state that parliamentary sovereignty is ‘the most fundamental rule of UK constitutional law’. I believe so because without parliamentary sovereignty the UK constitutional Law would drastically change. This is due to parliamentary sovereignty being a key link to other fundamental principles, such as the rule of law and the separation of powers. The crucial ideas of the rule of law are that the law should apply equally to all, that law should rule in the sense that it applies to all conduct and behaviour. As discussed previously Parliament is the highest source of law in the UK, Jowell states that “From the perspective of law, the sovereignty or supremacy of Parliament forms one of the pillars that are vital to the legal system. It is often regarded as the single ultimate source of legal authority.”16 Thus without the power of parliament to be able to pass any law or repeal laws, the rule of law cannot be applied nor can it take effect, this is especially essential as the parliament is elected by the people and they represent the people, thus ultimately the laws come from the people themselves and this wouldn’t be the case if it was the common law system of judges creating the laws, there would be no sense of democracy within that system. The concept of the separation of powers is that parliament, the executive and the judiciary have their own boundaries and each should exercise their powers within those boundaries and should not interfere with each other unless it is to provide checks and balances to ensure one branch doesn’t go ultra vires. Without Parliamentary sovereignty then the Judiciary would be the highest legal authority, thus collapsing separation of powers as the legislative and judiciary organ becomes one and no one could then ensure that the judiciary remains within their boundaries.
To conclude, I have shown that without Parliamentary sovereignty, it is clear that the other fundamental rules of the UK constitutional law would cease to be pillars within the UK constitution consequently changing it extremely. I think such an effect allows Parliamentary sovereignty to be called the most fundamental rule of the UK constitutional law.
1 R (On the Application of Miller) v Secretary of State for Exiting the European Union 2016 EWHC 2768 (Admin), para. 20
2 Jeffrey L Jowell, Dawn Oliver and Colm O’Cinneide, The Changing Constitution (8th edn, Oxford University Press 2015 2015).
3A. V Dicey, Lectures Introductory to The Study of The Law of The Constitution (Macmillan and Co 1885).
4 A. V Dicey, Lectures Introductory to The Study of The Law of The Constitution (Macmillan and Co 1885).
5 Jeffrey L Jowell, Dawn Oliver and Colm O’Cinneide, The Changing Constitution (8th edn, Oxford University Press 2015 2015).
6 European Communities Act 1972, s 2
7 R v Secretary of State for Transport, ex parte Factortame Ltd. and Others (No. 2) 1991 1 A.C. 603
8 R v Secretary of State for Transport, ex parte Factortame Ltd. and Others (No. 2) 1991 1 A.C. 603
9 V. Bogdanor, ‘Imprisoned by A Doctrine: The Modern Defence of Parliamentary Sovereignty’ (2011) 32 Oxford Journal of Legal Studies.
10 R (On the Application of Miller) v Attorney General 2017 UKSC 5
11 Human Rights Act 1998, s 3
12 R (Jackson) v Attorney General 2005 UKHL 56
13 Human Rights Act 1998, s 4
14 R v Secretary of State for the Home Department, ex parte Simms and O’Brien 2000 2 A.C. 115
15 R v Secretary of State for the Home Department, ex parte Simms and O’Brien 2000 2 A.C. 115
16 Jeffrey L Jowell, Dawn Oliver and Colm O’Cinneide, The Changing Constitution (8th edn, Oxford Univ