Parliamentary sovereignty in the United Kingdom
Parliamentary sovereignty is an ancient concept central to the functioning of the constitution of the United Kingdom but which is also not fully defined and has long been debated. Since the subordination of the monarchy under parliament, and the increasingly democratic methods of parliamentary government, there have been the questions of whether parliament holds a supreme ability to legislate and whether or not it should.
Parliamentary sovereignty is a description of the extent to which the Parliament of the United Kingdom has absolute and unlimited power. It is framed in terms of the extent of authority that parliament holds, and whether there are any sorts of law that it cannot pass.[1] In other countries, a written constitution often binds the parliament to act in a certain way, but there is no codified constitution in the United Kingdom.[1] In the United Kingdom, parliament is central to the institutions of state. The concept is exclusive to the UK Parliament and therefore does not extend to the Scottish Parliament, the Senedd and the Northern Ireland Assembly.[2]
The traditional view put forward by A. V. Dicey is that parliament had the power to make any law except any law that bound its successors. Formally speaking however, the present state that is the UK is descended from the international Treaty of Union between England and Scotland in 1706/7 which led to the creation of the "Kingdom of Great Britain". It is clear that the terms of that Treaty stated that certain of its provisions could not be altered, for example the separate existence of the Scottish legal system,[3] and formally, these restrictions are a continuing limitation on the sovereignty of the UK Parliament. This has also been reconsidered by constitutional theorists including Sir William Wade and Trevor Allan in light of the European Communities Act 1972 and other provisions relating to membership of the European Union, and the position of the Human Rights Act 1998 and any attempts to make this or other legislation entrenched. These issues remain contested, although the United Kingdom has since ceased membership of the European Union and is no longer subject to its treaties.
The terms "parliamentary sovereignty" and "parliamentary supremacy" are often used interchangeably. The term "sovereignty" implies a similarity to the question of national sovereignty.[4] While writer John Austin and others have looked to combine parliamentary and national sovereignty, this view is not universally held. Whichever term is used, it relates to the existence or non-existence of limits on parliament's power in its legislative role.[4] Although the House of Commons' dominance over the other two components of Parliament (the King and the House of Lords) is well attested, "parliamentary sovereignty" refers to their joint power.[5] All legislation receives royal assent from the King, and almost all is passed with the support of the House of Lords.[6]
Core theory[edit]
It was the view of A. V. Dicey, writing in the early twentieth century, that Parliament had "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". He refers to "England" but his view held for the other nations of the United Kingdom, with slightly different details.[11] This view however side-steps the issue of the limitations formally placed on Parliament when the United Kingdom was first established in 1706/7 and the English and Scottish Parliaments surrendered, or perhaps more correctly pooled, their sovereignty into the new state.
There are at least three suggested sources for this sovereignty. The first is sovereignty by Act of Parliament itself. One response, put forward by John Salmond was to reject this idea: he believed that "no statute can confer this power on Parliament for this would be to assume and act on the very power that is to be conferred". An alternative is to see sovereignty conferred by way of the repeated and unchallenged use of sovereignty through the promulgation of laws by Parliament.[12] The second possible source are the courts, that in enforcing all Acts of Parliament without exception, they have conferred sovereignty upon Parliament.[12] The third alternative is the complex relationship between all parts of government, and their historical development. This is then assumed to be continuous and the basis for the future. However, if sovereignty was built up over time, "freezing" it at the current time seems to run contrary to that.[13]
A group of individuals cannot hold sovereignty, only the institution of Parliament; determining what does and does not constitute an Act of Parliament is important. This is considered a "manner and form" requirement.[14] In the absence of a written constitution, it is a matter for the common law to make this determination.[14] The court does not consider any procedural defects of the bill if they are present; this is called the "enrolled Act" doctrine.[14] For example, the case of Pickin v British Railways Board was dismissed because it relied on the standing order process not having been fulfilled.[15]
However, the status of the Regency Acts is not so clear. In them, a regent acting during the infancy, incapacitation or absence of the monarch can assent to bills but cannot do so if they relate to changing the nature of monarchical inheritance or amending the Protestant Religion and Presbyterian Church Act 1707, which protected that church in Scotland.[16] If a regent did assent to a bill of these kinds, it may not be held to be a valid law even if it gained the approval of both houses and royal assent.[16]
Parliament may also make changes which impact successor parliaments as to their method of election and their constituent parts. For example, the Reform Act 1832 radically altered the distribution of MPs and subsequent parliaments followed the new rules. However, it remains open to any successor to legislate again to change these requirements, protecting its sovereignty. Similarly, only a reconstituted House of Lords could pass a bill reversing the changes of the House of Lords Act 1999 if its consent were required (unless the Parliament Acts were used).[17] However, the whole system of government could be abolished, and the next parliament would not be bound if it were not considered a successor.[18]
Development[edit]
Parliament Acts[edit]
The accepted rule is that the bill must be signed by both Houses of Parliament and be granted royal assent,[14] unless the Parliament Act procedure has been properly enacted.[16] The Parliament Acts create a system of passing a bill without the consent of the Lords. That system does not however, extend to private or local bills, nor bills extending the length of a parliament beyond five years.[16] However, despite the granting of the Speaker's Certificate, certifying the act to be valid, the validity of an act passed under the Parliament Acts may still be challenged in the courts.[16] In Jackson v Attorney General, the judges decided by a seven-to-two majority that an Act that extended the life of a parliament would be considered invalid by the courts if it had been passed under the Parliament Act procedure.[32]
Human Rights Act[edit]
The Human Rights Act 1998 confirmed the UK's commitment to the European Convention on Human Rights.[22] In a white paper, the government expressed that "to make provision in the Bill for the courts to set aside Acts of Parliament would confer on the judiciary a general power over the decisions of Parliament which under our present constitutional arrangements they do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament".[33] According to the theory that a parliament cannot bind its successors, any form of a Bill of Rights cannot be entrenched, and a subsequent parliament could repeal the act.[22] In the government's words, "[It is our tradition] to allow any Act of Parliament to be amended or repealed by a subsequent Act of Parliament."[33] However, it would have been possible to apply human rights rules to previous (rather than future) legislation.[22] The government also confirmed that it had no plans to devise a special [entrenchment] arrangement for the bill.[33]