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Parliamentary sovereignty

Previous: Parliamentary privilege

In our constitution, we usually say that Parliament is the supreme law making body. That is, it has unlimited legal power to enact any law without constraint. However, this wasn’t always the case.

Historic supremacy

  • 1610 – Coke CJ – “Common law will controul Acts of Parliament”
  • 1689 – Bill of Rights – Parliament above monarch
  • 2008 – Lord Hoffman – “sovereignty…founded upon…representative character”

In the 19 century, Dicey provided the orthodox view of Parliamentary sovereignty:

Parliament…make or unmake any law whatever…no person or body…set aside legislation.

The highest form of UK law

We can now say that the highest form of UK law is statute. Legally, there is ultimate sovereignty; politically, attitudes of MPs of opposing parties prevent abuse of power and socially, people submit to be governed in exchange for peace, order and a system of government which can be controlled by the people.

Changes to Parliament

Following Stockdale v James Hansard [1839], we could have said that an Act of Parliament is only that once it has passed through both houses and received royal assent. This is known as the enrolled bill rule. However, since the Parliament Act 1911, the House of Lords do not need to give approval to a Bill for it be passed as an Act, if the House of Commons was prepared to wait for a significant period of time. The latter Parliament Act 1949 reduced this waiting time to 1 year, and this is current law, as confirmed in Jackson v Attorney General [2005] where it was also ruled lawful for the Parliament Acts 1911 and 1949 to be passed without the approval of the Lords.

Consequences of Parliamentary sovereignty

There are several consequences of parliamentary sovereignty; by giving Parliament unlimited legal powers, Parliament has legislated retrospectively following the result in Burmah Oil v Lord Advocate [1965], it has legislated contrary to international law following Cheney v Conn [1968] and it has even legislated with international jurisdiction, with the Treason and Felony Act 1848.

Controversy

According to Dicey, “if we believe Parliament is all-powerful, we believe tomorrow’s power is less than today’s.” Parliament may not bind future Parliaments, it can only stipulate the manner in which future bills are passed. It follows from this therefore that wherever two Acts contradict each other, the latter Act is binding. This is known as the doctrine of implied repeal

Parliament is therefore not all-powerful, there are some limitations imposed by convention. Human Rights and the EU have also affected the doctrine of parliamentary sovereignty.

Next: Parliamentary sovereignty and the EU

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