Keith Mack
Parliamentary sovereignty is a principle of the UK constitution, which makes Parliament the supreme legal authority in the UK. It can create or end any law, and no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. Parliamentary sovereignty is often said to be the defining principle of the British Constitution. The UK constitution is often described as 'partly written and wholly uncodified'. This principle has been challenged by the Parliament Act 1911, which changed the nature of what was meant by Parliament. Parliamentary sovereignty is a common law rule, which has been contrasted with the separation of powers and constitutionalism in some countries.
| Characteristics | Values |
|---|---|
| Parliamentary sovereignty in the UK | The UK constitution is found through laws passed by Parliament and rules established through practices across hundreds of years, and principles established in court decisions (also known as the common law) |
| Parliamentary sovereignty as a principle | It is the supreme legal authority in the UK, which can create or end any law |
| Parliamentary sovereignty and the Human Rights Act | The Human Rights Act does not limit parliamentary sovereignty. Section 19 of the HRA requires the government to make a statement on whether any laws they propose to parliament are compatible with HRA rights, but this is advisory only |
| Parliamentary sovereignty and the rule of law | Parliamentary sovereignty does not need to be 'qualified' by the rule of law. Parliament rules through law, and its enactments must be interpreted as law |
| Parliamentary sovereignty and the judiciary | The judiciary (courts) are independent of both the executive and legislature. In the UK, judges are selected by the Judicial Appointments Commission, based on merit |
| Parliamentary sovereignty and the 'unwritten constitution' | The UK constitution is often described as 'partly written and wholly uncodified'. Over the years, Parliament has passed laws that limit the application of parliamentary sovereignty |
| Parliamentary sovereignty and devolution | Parliament retains the power to legislate for devolved bodies like the Scottish Parliament and Senedd Cymru |
| Parliamentary sovereignty and international law | The UK's membership of the European Union from 1973 to 2020 influenced the debate around parliamentary sovereignty |
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What You'll Learn
Parliamentary sovereignty vs. separation of powers
Parliamentary sovereignty is a principle of the UK constitution. It means that Parliament is the supreme legal authority in the UK and can create or end any law. This means that Parliament is superior to the executive and judicial branches of government. In the UK, the judiciary (courts) are independent of both the executive and legislature. The function of the courts is to interpret the law as laid down by Parliament. However, the courts do not have the power to overrule its legislation or consider the validity of properly enacted laws.
The principle of parliamentary sovereignty is contrasted with the separation of powers and constitutionalism in some countries. Separation of powers limits the legislature's scope to general law-making and makes it subject to external judicial review, where laws passed by the legislature may be declared invalid in certain circumstances. In the UK, the Human Rights Act does not limit parliamentary sovereignty. However, if a court decides that a law passed by Parliament does not support the rights in the HRA, they can issue a Declaration of Incompatibility. This does not automatically change the law but flags human rights incompatibility.
The UK's constitution is found through laws passed by Parliament, rules established through practices, and principles established in court decisions (common law). The UK's membership of the European Union from 1973 to 2020 also influenced the debate around parliamentary sovereignty, as European laws can override local laws within member states. The principle of parliamentary sovereignty was at the heart of the Brexit referendum in 2016, as those wishing to leave saw EU institutions as directly challenging the sovereignty of the Westminster Parliament.
Parliamentary sovereignty has been questioned and challenged over time, with some arguing that Parliament can impose procedural restrictions on itself. The Parliament Act 1911 changed the nature of what was meant by Parliament, and while the Cabinet and political party were supreme in reality, Parliament was still legally sovereign. In Australia, the idea of parliamentary sovereignty must be understood in the context of the federal Constitution and State Constitutions, which impose limits and boundaries on its power.
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Parliamentary sovereignty in Australia
Parliamentary sovereignty is a principle of the UK constitution, which makes Parliament the supreme legal authority in the UK, with the power to create or end any law. In the UK, it is generally accepted 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. However, the notion of parliamentary sovereignty has been challenged over time, with some scholars and judges arguing that Parliament can impose procedural restrictions on itself.
In the context of Australia, the idea of parliamentary sovereignty is more complex and has been described as "inaccurate, inadequate, or unnecessary". Australia's federal system means that neither the states nor the federal parliament have true parliamentary sovereignty. Instead, the Commonwealth Parliament is created by the federal constitution and has only enumerated powers. Each state's legislative power is inherent but constrained by the federal constitution, the relevant state constitution, and Commonwealth powers.
The Australian Constitution imposes rigid limits and boundaries on parliamentary sovereignty, and the power to make laws rests with the Commonwealth Parliament, but only in relation to specific subjects. Section 128 of the federal constitution further restricts the Commonwealth Parliament's power by prescribing the mode to alter it. Additionally, the supremacy clause (Section 109) gives Commonwealth laws precedence over state laws, demonstrating the constraints on state law-making power when the Commonwealth has concurrent law-making authority.
While Australia does not have a single written constitution like the UK, its constitution can be found in laws passed by Parliament, practices, and principles established in court decisions (common law). This means that parliamentary sovereignty in Australia is shaped by various factors, including constitutional limits and the interplay between federal and state powers.
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Parliamentary sovereignty and the Human Rights Act
Parliamentary sovereignty is a principle of the UK constitution that makes Parliament the supreme legal authority in the UK. It can create or end any law, and courts cannot overrule its legislation. The UK constitution is described as 'partly written and wholly uncodified', as it is not contained in a single document but is found in laws passed by Parliament and rules established through practices over hundreds of years, as well as principles established in court decisions (common law).
The Human Rights Act (HRA) 1998 is one of the laws that form part of the UK's constitution. It incorporates the European Convention on Human Rights (ECHR) into British domestic law. The HRA has been criticised for allegedly infringing parliamentary sovereignty, with Theresa May arguing that the UK should repeal it because it "bind [s] the hands of Parliament". However, the HRA does not limit parliamentary sovereignty. Section 19 of the HRA is advisory only, and Parliament has the ultimate authority to decide whether to change the law or not. The HRA facilitates democratic dialogue and enables courts to perform their correcting function to protect rights from abuse.
The UK's membership of the European Union from 1973 to 2020 also influenced the debate around parliamentary sovereignty. The EU was ruled to represent a "new legal order of international law" to which member states had limited their sovereign rights. The UK's entry into the EU was brought about through Acts of Parliament, and Parliament could, in theory, repeal these laws.
The enactment of the HRA and the raft of devolution legislation since 1998 have been said to have affected the doctrine of parliamentary sovereignty. However, the Human Rights Act is a well-drafted constitutional instrument that aimed to preserve parliamentary sovereignty while providing Britain with a set of rights standards. Ultimately, the British Parliament remains the cradle of power under the Human Rights Act.
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Parliamentary sovereignty and devolution
Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation, and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is often said to be the defining principle of the British Constitution.
Devolution is the term used to describe the process of transferring power from the centre (Westminster) to the nations and regions of the United Kingdom. Devolution has been viewed as a challenge to the notion of parliamentary sovereignty. Devolved bodies now have responsibility for a range of areas, including education, transport, and housing.
The UK system of devolution is asymmetric, with different parts of the UK having different forms of devolution and varying degrees of power. Scotland, Wales, and Northern Ireland possess executive and legislative devolution, while Metro Mayors in parts of England (and the Mayor of London) have only executive powers. The legislative powers of the devolved bodies are constrained, with "reserved" matters remaining the responsibility of Westminster.
The Sewel Convention establishes that the UK Parliament will 'not normally' legislate in areas that are devolved without the agreement of the devolved legislatures. However, in recent years, the UK Parliament has increasingly passed laws relating to devolved areas without the consent of the devolved legislatures. This has been seen as an attempt by the central government to assert the sovereignty of the UK Parliament.
The Royal Commission Report expressed that Parliament is sovereign with respect to legislative devolution. The report demonstrated that Parliament could repeal the Devolution Acts if it wanted and that it could legislate on all issues. However, it also stated that Parliament must obtain the consent of the region before enacting legislation, which can be seen as a limitation on its sovereignty.
In conclusion, while devolution has brought about a degree of power-sharing in the UK, it has not fundamentally undermined the principle of parliamentary sovereignty. Parliament retains the power to legislate in devolved areas and, in theory, could repeal the Devolution Acts. However, devolution has placed some limitations on the sovereignty of Parliament by requiring it to consider the perspectives of the devolved regions and restricting its ability to legislate freely in certain areas.
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Parliamentary sovereignty and the UK's constitution
Parliamentary sovereignty is a principle of the UK's constitution. It is often referred to as the defining principle of the British Constitution, and the most important part of the UK's constitution. This principle means that Parliament is the supreme legal authority in the UK and can create or end any law. It is a legal principle with legal effect, speaking to other legal entities within the constitutional order regarding how they are to exercise their legal functions in light of legislation passed by Parliament.
The UK's constitution is found through laws passed by Parliament, rules established through practices across hundreds of years, and principles established in court decisions (also known as common law). The UK constitution is often described as 'partly written and wholly uncodified'. This means that while there is no single document containing all the rules and principles, large parts of the constitution are written down, mainly in the laws passed in Parliament, known as statute law.
The principle of parliamentary sovereignty has been traditionally understood to mean that Parliament is free to enact legislation on any area of law it chooses, and that Acts of the UK Parliament take precedence over subordinate legislation, regulation, or common law rule. This means 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. However, it is important to note that Parliament's sovereignty does not mean it is above the law. The rule of law requires that every person and body, including the state, are subject to the law, and no one is above it.
While parliamentary sovereignty is a fundamental principle of the UK's constitution, it has been challenged and questioned by some scholars and judges. They argue that Parliament can impose procedural or "manner and form" restrictions on itself, as the legislature must be constituted and regulated by legal rules. Additionally, the UK's membership in the European Union from 1973 to 2020 influenced the debate around parliamentary sovereignty, as the EU represented a "new legal order" in which member states limited their sovereign rights in certain fields.
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Frequently asked questions
Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law.
Parliamentary sovereignty and the rule of law are sometimes seen as clashing principles, with the courts occasionally needing to 'qualify' the former to protect the latter. However, others argue that parliamentary sovereignty does not need to be 'qualified' by the rule of law, as Parliament rules through law, and its enactments must be interpreted as law.
Parliamentary sovereignty means that Parliament is free to enact legislation in any area of law it chooses. However, this does not mean that Parliament is unconstrained. Political and moral factors act as restraining forces, and Parliament's sovereignty is also limited by the UK's membership of international organisations, such as the European Union.
