Learning Outcomes
This article outlines the core legal principle of parliamentary sovereignty within the UK constitution. After studying this material, you should be able to identify and explain the traditional Diceyan concept of parliamentary sovereignty, including its key elements such as legislative supremacy and the inability of Parliament to bind its successors. You will also understand the relationship between Parliament and the courts regarding the validity of legislation and recognise the significant practical and legal limitations on parliamentary sovereignty, including those stemming from the Human Rights Act 1998 and the historical impact of EU membership.
SQE1 Syllabus
For SQE1, you are required to understand the fundamental principles of the UK constitution, including the central doctrine of parliamentary sovereignty. Your revision should focus on understanding the theoretical basis and practical implications of this doctrine, particularly how it interacts with other constitutional principles and legal sources.
Remember to pay particular attention in your revision to:
- the meaning and origins of parliamentary sovereignty
- A.V. Dicey's formulation of the doctrine (legislative supremacy, no Parliament binding successors, no judicial override)
- the concept of implied repeal and its limits, including 'constitutional statutes'
- the relationship between parliamentary sovereignty and the courts (e.g., the 'enrolled Act' rule)
- limitations on parliamentary sovereignty, including the Human Rights Act 1998 and the historical effect of EU membership.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which element is NOT part of A.V. Dicey's classic definition of parliamentary sovereignty?
- Parliament can make or unmake any law.
- The courts can invalidate an Act of Parliament if it breaches fundamental rights.
- No Parliament can bind a future Parliament.
- No person or body can override an Act of Parliament.
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The 'Enrolled Act' rule, established in cases like Pickin v British Railways Board, means that:
- Courts must enroll all new Acts onto a special register.
- Courts cannot investigate the internal parliamentary procedure used to pass an Act.
- Only enrolled solicitors can challenge Acts of Parliament.
- Acts are valid only if enrolled within six months of Royal Assent.
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Which of the following represents a legal limitation on Parliament's ability to legislate?
- A resolution passed by the House of Commons.
- A strongly worded constitutional convention.
- The requirement under the Human Rights Act 1998 for courts to interpret legislation compatibly with Convention rights where possible.
- Public opinion opposing a proposed Bill.
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True or false? The doctrine of implied repeal means that a 'constitutional statute' (as discussed in Thoburn) can be overridden by any later inconsistent Act of Parliament, even if the later Act does not expressly state this.
Introduction
Parliamentary sovereignty (or supremacy) is a foundational principle of the United Kingdom's uncodified constitution. It establishes the UK Parliament as the ultimate legal authority, possessing the power to create, amend, or abolish any law. This article examines the traditional understanding of this doctrine, primarily through the work of A.V. Dicey, and explores its practical operation and the challenges it faces in the contemporary legal context, including interactions with human rights law and the historical impact of European Union membership. Understanding these principles is fundamental for exploring many areas of public law relevant to the SQE1 assessment.
The Traditional Doctrine: Dicey's Formulation
The most influential definition of parliamentary sovereignty was articulated by A.V. Dicey in the late 19th century. His formulation comprises three main limbs:
- Parliament can make or unmake any law whatsoever: Parliament possesses unlimited legislative competence. It can legislate on any subject matter, change existing laws (including fundamental constitutional rules), and even legislate with retrospective effect, although this is rare.
- No person or body can override or set aside the legislation of Parliament: The validity of an Act of Parliament cannot be questioned by any other body, including the courts. Once a Bill has passed both Houses and received Royal Assent, it is supreme law.
- No Parliament can bind its successors or be bound by its predecessors: Each Parliament is newly sovereign and cannot pass laws that future Parliaments cannot change. This ensures legislative flexibility for each elected Parliament.
Key Term: Parliamentary sovereignty
The constitutional principle that the UK Parliament holds supreme legal authority to create or abolish any law, and that its enactments cannot be invalidated by any other body, including the courts.
Legislative Supremacy
The first limb asserts Parliament's unrestricted power. In theory, Parliament could legislate on any topic, however unconventional. For example, it could change the rules of succession to the throne or alter fundamental common law principles. Its legislative power is not limited by subject matter or geographical reach (it can legislate extraterritorially).
The 'Enrolled Act' Rule
The second limb is closely linked to the courts' role. The judiciary accepts Parliament's supremacy and will not challenge the validity of an Act. If a document appears on the Parliamentary Roll as having passed both Houses and received Royal Assent, the courts treat it as a valid Act. They will not investigate the internal procedures Parliament followed during its enactment. This is known as the 'Enrolled Act' rule, affirmed in cases like Pickin v British Railways Board [1974] AC 765.
No Parliament Binding Successors
The third limb ensures that each Parliament retains full legislative freedom. One Parliament cannot pass a law stating that a particular Act can never be repealed, or can only be repealed by a special procedure (like a referendum or a two-thirds majority). This is demonstrated by the doctrine of implied repeal.
Key Term: Implied repeal
The legal doctrine whereby if a provision in a later Act of Parliament conflicts with a provision in an earlier Act, the later Act takes precedence, and the conflicting part of the earlier Act is considered repealed by implication, even without express words to that effect.
This means a later Parliament can always change the law enacted by an earlier one, either by expressly stating the repeal or simply by passing new legislation that is inconsistent with the old.
Worked Example 1.1
The (fictitious) Public Health Act 2010 mandates that all public swimming pools must install specific safety equipment by 2015. In 2018, Parliament passes the (fictitious) Leisure Facilities Act 2018, which sets out different, less stringent requirements for safety equipment in all leisure facilities, including swimming pools, and makes no mention of the 2010 Act. A local council pool, opened in 2019, complies only with the 2018 Act's requirements.
Is the council in breach of the 2010 Act?
Answer: No. The provisions of the Leisure Facilities Act 2018 are inconsistent with the Public Health Act 2010 regarding safety equipment. Under the doctrine of implied repeal, the later Act (2018) prevails over the earlier Act (2010) to the extent of the inconsistency. The council complies with the current law.
Limitations and Challenges
Despite its theoretical absoluteness, parliamentary sovereignty faces practical and legal constraints.
Political Limitations
Practically, Parliament's power is constrained by political realities, public opinion, international relations, and the need for government effectiveness. A government proposing deeply unpopular or impractical legislation faces significant political opposition and electoral consequences.
EU Membership (Historical Context)
Membership of the European Union (1973-2020) posed the most significant legal challenge. The European Communities Act 1972 required UK courts to give precedence to EU law over conflicting domestic law, as affirmed in R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603. This created a situation where an external body of law could override Acts of Parliament. However, this supremacy derived from Parliament's own Act (the ECA 1972), which Parliament subsequently repealed via the European Union (Withdrawal) Act 2018, demonstrating its ultimate sovereignty. EU law now continues only as 'retained EU law', subject to modification or repeal by Parliament.
Human Rights Act 1998
The Human Rights Act 1998 (HRA) incorporates rights from the European Convention on Human Rights (ECHR) into UK law. It does not allow courts to strike down primary legislation but introduces significant interpretative obligations and declarations:
- Section 3: Requires courts to interpret primary and secondary legislation compatibly with Convention rights, 'so far as it is possible to do so'. This can lead to interpretations that deviate from the literal meaning of the statute to ensure compliance with human rights.
- Section 4: Allows higher courts (High Court and above) to issue a 'declaration of incompatibility' if legislation cannot be interpreted compatibly with Convention rights. This declaration does not invalidate the Act but signals to Parliament that the law may need amendment.
The HRA represents a significant practical constraint, influencing how legislation is drafted and applied, but it preserves parliamentary sovereignty in that Parliament retains the final say on whether to amend incompatible legislation.
Devolution
The devolution of powers to legislatures in Scotland, Wales, and Northern Ireland means that these bodies can legislate on devolved matters. While the UK Parliament remains legally sovereign and can legislate on any matter (including devolved ones), the Sewel Convention establishes a political understanding that Westminster will 'not normally' legislate on devolved matters without the relevant devolved legislature's consent. This creates a complex political dynamic but does not diminish Parliament's ultimate legal authority.
'Constitutional Statutes' and Implied Repeal
Recent case law, notably Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), suggests that certain statutes of fundamental constitutional importance ('constitutional statutes') might be resistant to implied repeal. Laws LJ argued that such statutes (e.g., Magna Carta, Bill of Rights 1689, HRA 1998, Acts of Union, devolution statutes) could only be repealed by express language or irresistible implication, not merely by a later inconsistent statute.
Key Term: Constitutional statutes
Acts of Parliament considered by some judges (e.g., Laws LJ in Thoburn) to have fundamental constitutional importance, potentially making them immune from implied repeal by later ordinary statutes. Express repeal would still be possible.
This suggests a potential judicial qualification to the traditional Diceyan view, implying a hierarchy of statutes where fundamental laws require more explicit parliamentary action to be overturned. The Supreme Court has acknowledged this concept without definitively settling its full implications (R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3; Miller (No 1) [2017] UKSC 5).
Worked Example 1.2
Parliament enacts the (fictitious) Local Government Act 2023, which includes provisions detailing council election procedures. These provisions conflict with parts of the Representation of the People Act 1983 (a likely 'constitutional statute'). The 2023 Act contains no clause expressly repealing any part of the 1983 Act.
Does the 2023 Act impliedly repeal the conflicting provisions of the 1983 Act?
Answer: Arguably no. If the relevant parts of the Representation of the People Act 1983 are considered 'constitutional statutes' under the principle discussed in Thoburn, they may resist implied repeal. The 2023 Act would need clear, express words or an irresistible implication to override the earlier constitutional provisions. The later Act's conflicting provisions might be invalid to the extent of the conflict.
Exam Warning
Be cautious when dealing with questions about the limits of parliamentary sovereignty. While theoretically Parliament is supreme, recognise the practical and legal influences like the HRA 1998, devolution conventions, and the developing concept of constitutional statutes. Distinguish between what Parliament can legally do (repeal any Act) and what it does or is expected to do in practice.
Key Point Checklist
This article has covered the following key knowledge points:
- Parliamentary sovereignty means the UK Parliament has supreme legal authority to make or unmake any law.
- A.V. Dicey defined it with three limbs: legislative supremacy, no judicial override, and no Parliament binding its successors.
- The 'Enrolled Act' rule prevents courts questioning the validity or procedure of an Act once passed.
- The doctrine of implied repeal holds that later Acts prevail over earlier inconsistent Acts.
- Significant limitations or challenges include the Human Rights Act 1998 (interpretative duty and declarations of incompatibility), devolution, and the historical impact of EU membership.
- The concept of 'constitutional statutes' suggests some fundamental Acts may resist implied repeal, requiring express words to be overturned.
Key Terms and Concepts
- Parliamentary sovereignty
- Implied repeal
- Constitutional statutes
