Lecture notes
Parliamentary Sovereignty Lecture Notes
- Module
- Public Law (LAW106)
- Institution
- The University Of Liverpool (UoL)
Parliamentary Sovereignty Lecture Notes
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Parliamentary Sovereignty – introduction.What is it?
Parliament has a number of functions, law-making being one of them.
Parliamentary sovereignty is about the nature and the scope of its legislative powers.
Parliamentary sovereignty is a principle of the UK constitution – it makes Parliament the supreme legal
authority in the UK.
Traditional understanding:
The House of Commons, House of Lords and the formality of Royal Assent – these bodies legislate and are
co-dependant.
All three must agree to make law – with the idea of ‘the Queen-in-Parliament’.
Dicey’s famous formulation of the principle (main definition) –
“the principle of Parliamentary sovereignty means neither more nor less than this,
namely, that Parliament thus defined has, under the English constitution, 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” – A.V. Dicey, introduction to the
study of the law of the constitution (1915). =
(i) The right to make or unmake any law whatever.
(ii) No person or body [or court] is recognised by the law of England as having a right to override
or set aside the legislation of Parliament.
Parliament has the legal authority to make any law whatsoever, including,
- Making far-reaching constitutional changes.
- An Act of Parliament requiring ‘all blue-eyed babies’ to be put to death, L.Stephen, The Science
of Ethics (1882).
- Making smoking on the streets of Paris a criminal offence (W.I. Jennings, The law and the
constitution (1959)).
These are more hypothetical ‘laws’ that act as an explanation of the extent of which Parliament has
power over passing legislation.
However, in practice Parliament has other non-legal constraints –
Politics,
Democracy,
Morality,
Practicalities.
Function of parliamentary sovereignty-
1) A central organising principle.
2) A constitutional focal point.
o Due to an uncodified constitution of a ‘unitary state’.
‘the supremacy of Parliament is the constitution’ – W.I. Jennings, the law and the constitution (1959)
1) A central organising principle:
- Structure/hierarchy of sources organised by reference to PS.
- Operation of other branches of state organised by reference to PS.
o M Gordon, parliamentary sovereignty in the UK constitution (2015).
2) A constitutional focal point:
- Transmit a symbolic message about the (potential) legitimacy of the UK constitution.
o M Gordon, parliamentary sovereignty in the UK constitution (2015).
,Virtue of PS –
Ensures constitutional primacy of democratic decision-making:
- HC within Parliament is (now) the only directly elected part of the UK central government.
- This is far from perfect, but relatively legitimate.
- Judiciary, in contrast: unelected, unrepresentative, (politically) unaccountable.
- This may justify the absence of legal limits on law-making power.
o M Gordon, parliamentary sovereignty in the UK constitution (2015).
Parliamentary sovereignty is:
Legally unlimited legislative power of the UK parliament -
- ‘Right to make or unmake any law’
- ‘No other body can override legislation of Parliament’
Legislative power operates in a scheme of political responsibility -
- Of the government to electorate (mandate) itself (collective and individual ministerial
responsibility) and its party.
- Of Parliament (especially HC) to the people (representation).
, Authority.
There must be legal authority for the rule that the UK parliament is legally unlimited legislative power.
Two questions are considered when considering authority –
(i) How did the doctrine develop?
(ii) How is it recognised in case law?
The historical development of parliamentary sovereignty:
1. Parliament v Crown – parliament established its power over the crown (monarchy).
2. There was a civil war in the 1600’s where parliament effectively took over the crowns power
(1642-1646).
3. Due to this civil war, Charles I was executed by force by parliament in January 1649.
- England acted as a Commonwealth (no monarchy) – 1649-1660.
- Restoration of monarchy on parliaments terms – 1660.
- ‘glorious’ revolution – 1688.
- Statutory limitation of the crown (Bill of Rights 1689) and Control of the Line of Succession
{ensured there was a protestant line of the monarchy and in power in parliament} (Act of
settlement 1701).
Key point – parliamentary sovereignty is a legal rule but…
“was not established by judicial decisions, however; it was settled by armed conflict and the Bill
of Rights and the Act of Settlement. The judges did no more than acquiesce in a simple fact of
political authority, though they have never been called upon precisely to say so” – W. I. Jennings, the
law and the constitution (1959).
Basic proposition:
- UK courts cannot strike down, or invalidate, or declare unconstitutional or unlawful, an Act of
Parliament.
- Instead, the courts are bound to apply the legislation.
Key precedents to establish this rule –
- Mortensen v Peters (1906).
- Cheney v Conn (1968).
- Edinburgh & Dalkeith Railway Co. v Wauchope (1842).
- British Railways Board v Pickin (1974).
- Manuel v Attorney General (1983).
Mortensen v Peters (1906) –
“In this court we have nothing to do with the question of whether the legislature has or has not done
what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal sitting
to decide whether an Act of the Legislature is ultra vires as in contravention of generally acknowledged
principles of international law…”
Ultra vires – beyond their powers.
“…for us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is
supreme, and we are bound to give effect to its terms”.
Cheney v Conn (1968) –
“What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself
the law and the highest form of law that is known to this country. It is the law which prevails over every
other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in
this country, is illegal” – Ungoed-Thomas J.
Edinburgh & Dalkeith Railway Co v Wauchope (1842) –
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