Lesson 2.2: Parliamentary Sovereignty

Introduction

Welcome to Lesson 2.2 on Parliamentary Sovereignty! In this lesson, we will explore a crucial aspect of the UK constitution, focusing on the concept of parliamentary sovereignty as outlined by the legal scholar A.V. Dicey. By the end of this lesson, students, you should be able to:

• Understand Dicey's classic account of parliamentary sovereignty and its three limbs.
• Recognize the legislative supremacy of Parliament and the enrolled bill rule.
• Differentiate between express and implied repeal, and discuss whether Parliament can bind its successors.
• Identify challenges to sovereignty, including EU membership, devolution, and the Human Rights Act.
• Engage in the ongoing debate over the location of ultimate authority in the UK.

Let's dive into the fascinating world where law meets politics! 🎉

The Concept of Parliamentary Sovereignty

Parliamentary sovereignty is a fundamental principle of the UK constitution. According to A.V. Dicey, it has three key components:

1. Parliament can make or unmake any law: This means that Parliament is the supreme legal authority and cannot be overridden by any other body. For example, if Parliament decides to pass a law allowing cars to drive 100 mph on highways, it is within its powers to do so, regardless of public opinion or expert advice.

1. No Parliament can bind its successors: Each new Parliament has the authority to legislate without being restricted by earlier Parliaments. For instance, if a law was passed in 2010 that set specific regulations about environmental protection, a new Parliament in 2023 could repeal or amend that law.

1. Legislation cannot be challenged in the courts: Judges cannot strike down laws passed by Parliament. They can, however, interpret them. This means that if Parliament makes a law that is unpopular or controversial, it remains in effect until Parliament decides to change or repeal it.

The Legislative Supremacy of Parliament

Parliament's supremacy is underpinned by the enrolled bill rule. This rule states that once a bill has been passed by both Houses of Parliament and has received royal assent, it cannot be challenged in court. For example, in the case of Ex parte: Goldsmith (2002), the Supreme Court reinforced this principle by ruling that the courts could not examine the validity of a bill that had become law.

This legislative supremacy means that Parliament has the final say on legal matters within the UK, reinforcing its position as a cornerstone of the democratic process. However, this has also raised questions about accountability and oversight.

Express and Implied Repeal

Parliament can change laws through two primary ways: express repeal and implied repeal.

• Express Repeal occurs when Parliament explicitly states that a previous law has been revoked. For instance, the Acts of Union 1800 was expressly repealed by the Northern Ireland Act 1998.
• Implied Repeal occurs when a new law conflicts with an older one; the new law effectively cancels the previous one without needing explicit language indicating repeal. An example is the conflict between the European Communities Act 1972 and several previous UK laws. If a new law contradicts an old one, the new law prevails, showcasing Parliament's sovereignty.

The question often arises whether Parliament can bind its successors. The general consensus is no; Parliament cannot impose restrictions on future Parliaments. This was illustrated in the case of Dunnachie v. Kingston upon Hull City Council (2004), where it was established that a statute passed by Parliament does not carry forward limitations that might affects future legislative authority.

Challenges to Sovereignty

While the principle of parliamentary sovereignty remains paramount, several challenges have emerged:

1. EU Membership

During the UK’s membership in the European Union (EU), parliamentary sovereignty was affected by the supremacy of EU law. European laws could override UK laws, and member states were obliged to comply with EU directives. The Factortame case highlighted this tension, where UK courts had to suspend domestic legislation to adhere to EU law.

2. Devolution

Devolution has transferred certain powers from Westminster to the Scottish Parliament, the Welsh Assembly, and the Northern Ireland Assembly. This fragmentation raises questions regarding parliamentary sovereignty because these devolved institutions exercise law-making powers in their specific jurisdictions, albeit still under the ultimate sovereignty of Parliament.

3. The Human Rights Act

The Human Rights Act 1998 allows UK courts to scrutinize legislation for compliance with the European Convention on Human Rights. This scrutiny can lead to a declaration of incompatibility, which, while not nullifying the law, prompts Parliament to reconsider its legislation and balance sovereignty with human rights considerations.

Conclusion

In summary, the principle of parliamentary sovereignty maintains that Parliament has the ultimate power to make and repeal laws in the UK. Through Dicey's three limbs, we understand that Parliament cannot bind its successors, no legislation can be challenged in court, and its supremacy is upheld by the enrolled bill rule. However, we also see that this sovereignty is not without its challenges, particularly in light of EU membership, the devolution of powers, and the implications of the Human Rights Act. By grasping these concepts, students, you develop a foundational understanding of how parliamentary sovereignty operates within the UK legal framework and its implications on democracy.

Study Notes

• Parliamentary sovereignty is a key principle of the UK constitution.
• A.V. Dicey identified three limbs of sovereignty: legislative supremacy, no binding of successors, and no court challenges.
• The enrolled bill rule protects parliamentary decisions from judicial review.
• Express repeal is when Parliament explicitly revokes a law; implied repeal occurs when a new law conflicts with an older one.
• EU membership, devolution, and the Human Rights Act pose challenges to parliamentary sovereignty.
• Each Parliament can legislate independently of its predecessors.