The United Kingdom has an unwritten constitution, it is comprised of acts of Parliament, case law and other elements. Some say that parliamentary sovereignty is the most important part of Britain’s constitution. I agree with this and shall discuss why within this essay.
Parliamentary sovereignty means that Parliament is regarded as the supreme law-making institution. This is a doctrine which is comprised of three sections.
· Parliament can legislate on any subject which it chooses
· Acts of Parliament cannot be overturned by any authority
· No Parliament can bind its successors, this means that any piece of current legislation may be repealed by a future Parliament.
[1]
This means that the constitution of the UK is in fact decided by the Parliament of the United Kingdom. This sovereignty makes the UK the most powerful legislating body in the United Kingdom, even with devolved assemblies, their laws can be removed by Parliament at Westminster. You could say that Parliamentary sovereignty is the most important principle of the UK’s constitution. Courts must work with laws set by parliament, they cannot remove them, therefore Parliament acts as sovereign over those institutions such as the courts and devolved assemblies.
Through parliamentary sovereignty, Parliament can simply change the Constitution through laws. Unlike America, where the constitution is written down and codified, the British constitution is unwritten and uncodified, this symbolises Parliament’s full control over it. Parliament could be regarded as Britain’s final and supreme source of law. A.V. Dicey said in his “Introduction to the study of the law of the Constitution” that, “The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake an 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.”
[2]
This shows that even in 1885 when Dicey’s book was written that Parliament has the right to unmake
any law and further that no person, not even the Monarch, can really have a right to disregard an act of law. Even until after the Civil War did the King had full authority over the laws, and indeed if Parliament was to do something that he did not like, he could overturn it. It was with the ascension of William and Mary to the throne, and the change in the Coronation Oath, that Parliament was then regarded as the supreme lawmaking authority in the now United Kingdom. The Coronation Oath Act reads that laws would not emanate just from the King/Queen but also from Parliament. It is not until Queen Victoria’s reign that we see the transformation from the Monarch being the supreme and absolute law making body to the power being transferred to Parliament and then later, to the House of Commons.
Parliamentary Sovereignty, since then can be said to have been undermined in several different ways. This is due to several changes in both the UK’s constitution but also due to outside problems (EU) and also devolved assemblies (Post-1997). Parliamentary Sovereignty was initially meant to mean all of the Parliament (House of Commons and House of Lords) but the Parliament Act in 1911, changed that. For instance, Dicey writes in the 8th Edition to his earlier mentioned book that, “But that while the reality was now Cabinet and political party were supreme, in law parliament was still sovereign albeit that "the share of sovereignty" of the Commons had increased.”
[3]
This shows that through the Parliament Act and other changes, the power of Parliamentary Sovereignty was not spread throughout Parliament but in fact concentrated on the House of Commons. This was again made even more so through the reform of the House of Lords in the New Labour government in 1997-2010.
The legal status of Parliament sovereignty of the courts is also challenged in Scotland with the verdict in trials of, “Not Proven” from 1728
[4]. This shows that the jury judges through its conscience and may if necessary release a ‘Perverse Verdict’ which goes against the law prescribed by Parliament.
Through the devolved assemblies created by the Labour Government in the late 1990s, local parliamentary sovereignty was granted to a Scottish parliament, a Welsh assembly and a Northern Irish Assembly. Although the Parliament in Westminster can legally dissolve these local assemblies or block a law made by any of them, it would prove difficult and cause large dissatisfaction if done. However, these assemblies remain devolved and are not federal, therefore their power does in fact stem from the Parliament in Westminster.
One of the most major challenges to the UK’s parliamentary sovereignty is the entrance of the United Kingdom into the European Community, later European Union. Through such laws as the Lisbon Treaty and the Maastricht Treaty, the power of Britain over some of it’s affairs was reduced. The EU ruled that, “
New legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields”. [5]
Through the European Union, the Human Rights Act (1998) in convention with the European Union’s Human right act, the British court system has the ability to issue a “Declaration of Incompatibility”. This is used when the courts believe a certain act of Parliament is in fact in contravention of the Human Rights Act.
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” [6]
This does not remove the sovereignty of the law which is in contravention but merely alerts Parliament that they should perhaps consider changing the law. Overall through the European Union, it can be said that Parliamentary Sovereignty is still supreme in Britain.
In conclusion, I believe that even though the Parliament in Westminster retains a modicum of Parliamentary Sovereignty, it can also be said that due to all of the above mentioned issues including the EU, Devolved Assemblies and changes in the legal system that the Parliamentary Sovereignty of the British parliament is no longer entirely sovereign.
[1] Exploring British Politics (Pg. 116), Mark Garnett and Philip Lynch
[2] Introduction to the Study of the Law of the Constitution, 1st Edition, A.V. Dicey
[3] Introduction to the Study of the Law of the Constituon, 8th Edition, A. V. Dicey
[4] Trial of Carnegie of Finhaven, 1728
[5] Van Gend en loos, 1963, European Court of Justice]
[6]Human Rights Act, 1998, Section 4