Parliamentary sovereignty is a longstanding concept central to the functioning of the constitution of the United Kingdom, but which is also not fully defined and has long been debated. Since the subordination of the monarchy under parliament, and the increasingly democratic methods of parliamentary government, there have been the questions of whether parliament holds a supreme ability to legislate and whether or not it should.
Parliamentary sovereignty is a description of the extent to which the Parliament of the United Kingdom has absolute and unlimited power. It is framed in terms of the extent of authority that parliament holds, and whether there are any sorts of law that it cannot pass.Bradley, Ewing (2007). p. 51. In other countries, a written constitution often binds the parliament to act in a certain way, but there is no codified constitution in the United Kingdom. In the United Kingdom, parliament is central to the institutions of state. The concept is exclusive to the UK Parliament and therefore does not extend to the Scottish Parliament, the Senedd and the Northern Ireland Assembly.Bradley in Jowell, Oliver (eds). p. 26.
The traditional view put forward by A. V. Dicey is that parliament had the power to make any law except any law that bound its successors. Formally speaking however, the present state that is the UK is descended from the international Treaty of Union between England and Scotland in 1706/7 which led to the creation of the "Kingdom of Great Britain". It is clear that the terms of that Treaty stated that certain of its provisions could not be altered, for example the separate existence of the Scottish legal system,Articles 17 and 18 of the Treaty of Union and formally, these restrictions are a continuing limitation on the sovereignty of the UK Parliament. This has also been reconsidered by constitutional theorists including Sir William Wade and Trevor Allan in light of the European Communities Act 1972 and other provisions relating to membership of the European Union, and the position of the Human Rights Act 1998 and any attempts to make this or other legislation entrenched. These issues remain contested, although the United Kingdom has since ceased membership of the European Union and is no longer subject to its treaties.
The terms "parliamentary sovereignty" and "parliamentary supremacy" are often used interchangeably. The term "sovereignty" implies a similarity to the question of national sovereignty.Bradley, Ewing (2007). p. 55. While writer John Austin and others have looked to combine parliamentary and national sovereignty, this view is not universally held. Whichever term is used, it relates to the existence or non-existence of limits on parliament's power in its legislative role. Although the House of Commons' dominance over the other two components of Parliament (the King and the House of Lords) is well attested, "parliamentary sovereignty" refers to their joint power. All legislation receives royal assent from the King, and almost all is passed with the support of the House of Lords.Bradley in Jowell, Oliver (eds). pp. 26–27.
History
The Statute of Proclamations of 1539 gave the king wide powers to legislate without reference to, or approval from, Parliament. At the same time, it recognised the common law, existing statutory provisions, and excluded the breach of royal proclamations from the death penalty.Bradley, Ewing (2007). p. 52. It was repealed in 1547, but Queen Mary and Queen Elizabeth both relied on royal proclamations. A review by Chief Justice Edward Coke in 1610, the Case of Proclamations, established that Parliament had the sole right to legislate, but the Crown could enforce it. The concept of parliamentary sovereignty was central to the English Civil War: Royalists argued that power was held by the king, and delegated to Parliament, a view which was challenged by the Parliamentarians. The issue of taxation was a significant power struggle between Parliament and the king during the Stuart period. If Parliament had the ability to withhold funds from the monarch, then it could prevail. Direct taxation had been a matter for Parliament from the reign of Edward I, but indirect taxation continued to be a matter for the king.Bradley, Ewing (2007). p. 53.
Royal powers were finally removed by the Bill of Rights 1689. The Bill of Rights also removed the ability of the Crown to dispense with (ignore or suspend) legislation and statutes. Such a right had culminated in James II's Declaration of Indulgence of 1687, which had ushered in the Glorious Revolution.Bradley, Ewing (2007). pp. 53–54. That led the Earl of Shaftesbury to declare in 1689, "The Parliament of England is that supreme and absolute power, which gives life and motion to the English government".Bradley in Jowell, Oliver (eds). p. 28. The Act of Settlement of 1700 removed royal power over the judiciary and defined a vote of both houses as the sole method of removing a judge.Bradley, Ewing (2007). p. 54.
Core theory It was the view of A. V. Dicey, writing in the early twentieth century, that Parliament had "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 a right to override or set aside the legislation of Parliament". He refers to "England" but his view held for the other nations of the United Kingdom, with slightly different details. This view however side-steps the issue of the limitations formally placed on Parliament when the United Kingdom was first established in 1706/7 and the English and Scottish Parliaments surrendered, or perhaps more correctly pooled, their sovereignty into the new state.
There are at least three suggested sources for this sovereignty. The first is sovereignty by Act of Parliament itself. One response, put forward by John Salmond was to reject this idea: he believed that "no statute can confer this power on Parliament for this would be to assume and act on the very power that is to be conferred". An alternative is to see sovereignty conferred by way of the repeated and unchallenged use of sovereignty through the promulgation of laws by Parliament.Bradley in Jowell, Oliver (eds). p. 29. The second possible source are the courts, that in enforcing all Acts of Parliament without exception, they have conferred sovereignty upon Parliament. The third alternative is the complex relationship between all parts of government, and their historical development. This is then assumed to be continuous and the basis for the future. However, if sovereignty was built up over time, "freezing" it at the current time seems to run contrary to that.Bradley in Jowell, Oliver (eds). pp. 29–30.
A group of individuals cannot hold sovereignty, only the institution of Parliament; determining what does and does not constitute an Act of Parliament is important. This is considered a "manner and form" requirement.Bradley, Ewing (2007). p. 65. In the absence of a written constitution, it is a matter for the common law to make this determination. The court does not consider any procedural defects of the bill if they are present; this is called the "enrolled Act" doctrine. For example, the case of Pickin v British Railways Board was dismissed because it relied on the standing order process not having been fulfilled.Bradley, Ewing (2007). p. 66.
However, the status of the Regency Acts is not so clear. In them, a regent acting during the infancy, incapacitation or absence of the monarch can assent to bills but cannot do so if they relate to changing the nature of monarchical inheritance or amending the Protestant Religion and Presbyterian Church Act 1707, which protected that church in Scotland.Bradley, Ewing (2007). p. 67. If a regent did assent to a bill of these kinds, it may not be held to be a valid law even if it gained the approval of both houses and royal assent.
Parliament may also make changes which impact successor parliaments as to their method of election and their constituent parts. For example, the Reform Act 1832 radically altered the distribution of MPs and subsequent parliaments followed the new rules. However, it remains open to any successor to legislate again to change these requirements, protecting its sovereignty. Similarly, only a reconstituted House of Lords could pass a bill reversing the changes of the House of Lords Act 1999 if its consent were required (unless the Parliament Acts were used).Bradley, Ewing (2007). pp. 63–64. However, the whole system of government could be abolished, and the next parliament would not be bound if it were not considered a successor.Bradley, Ewing (2007). p. 64.
Membership of the European Union (1973–2020) From 1 January 1973 to 31 January 2020, the United Kingdom was a member state of the European Union and its predecessor the three European Communities which was made up principally of the European Economic Community (EEC) which was widely known at the time as the "Common Market", the European Coal and Steel Community (ECSC) which became defunct in 2002 and the European Atomic Energy Community (EAEC or Euratom) which the UK also withdrew from in 2020.
The European Communities Act 1972 gave European Union law (previously Community law) the force of law in the United Kingdom and it also incorporated the obligations of the European Treaties into UK domestic law as well.Bradley, Ewing (2007). p. 71. Section 2(1) reads: 2. General implementation of Treaties
(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly ; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.
Although not stated specifically (or even directly acknowledged by politicians) in the 1972 Act the principle of EU Law (previously Community Law) having primacy over the domestic laws of the member states also applied to the United Kingdom.
In the run-up to the 1975 United Kingdom European Communities membership referendum the then Labour government led by the then Prime Minister Harold Wilson distributed a pamphlet on behalf of HM Government to every household in Britain and in the pamphlet contained the governments assessment on Parliament's future role on continued membership.
A few days following the outcome of the referendum in which the United Kingdom had confirmed its continued membership "Yes" of the communities in an interview for the Daily Telegraph the then Ulster Unionist (UUP) MP for South Down Enoch Powell confirmed this assessment within the pamphlet on Parliament's role in the future of British EC membership:
The case of R v. Secretary of State for Transport ex parte Factortame is considered decisive as to the superiority of EU law over British law. It judged that the Merchant Shipping Act 1988 and section 21 of the Crown Proceedings Act 1947 (which prevented an injunction against the Crown) should be disapplied. Alongside R v Employment Secretary, ex parte EOC, these two cases establish that any national legislation, coming into force before or after the European Communities Act 1972, cannot be applied by British courts if it contradicts Community law.