Parliament and parliamentary sovereignty - Structure and functions of Parliament

Learning Outcomes

After reading this article, you will be able to describe the structure and main functions of the UK Parliament, explain the doctrine of parliamentary sovereignty and its legal basis, outline the legislative process for primary and secondary legislation, and identify both legal and practical limits on Parliament’s sovereignty. You will also be able to apply these principles to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the structure and functions of Parliament and the doctrine of parliamentary sovereignty. In your revision, focus on:

• the composition and roles of the House of Commons and House of Lords
• the legislative process for primary and secondary legislation
• the doctrine of parliamentary sovereignty and its core principles
• the legal basis and limits of parliamentary sovereignty, including devolution, human rights, and Brexit
• the relationship between Parliament, the courts, and the executive

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.

1. What are the three core principles of parliamentary sovereignty according to Dicey?
2. Which bodies make up the UK Parliament, and what are their main functions?
3. What is the effect of the Parliament Acts 1911 and 1949 on the legislative process?
4. Can Parliament’s sovereignty be limited by devolution or human rights law? Briefly explain.

Introduction

The UK Parliament is the central law-making body in England and Wales. Its structure and powers are fundamental to the UK’s constitutional system. The doctrine of parliamentary sovereignty means that Parliament is the supreme legal authority, able to make or unmake any law. However, in practice, there are important legal and political limits on this power. Understanding Parliament’s structure, functions, and the scope of its sovereignty is essential for SQE1.

The Structure of Parliament

Parliament consists of three elements: the House of Commons, the House of Lords, and the Monarch. Together, they enact legislation and scrutinise government.

The House of Commons

The House of Commons is the elected chamber. It has 650 Members of Parliament (MPs), each representing a UK constituency. Its main functions are:

• debating and passing legislation
• scrutinising government policy and actions
• representing constituents’ interests
• approving government spending and taxation

The House of Lords

The House of Lords is the unelected chamber. It includes life peers, bishops, and a limited number of hereditary peers. Its main functions are:

• reviewing and suggesting amendments to legislation
• providing specialized knowledge and detailed scrutiny
• delaying (but not blocking) legislation in certain cases

The Monarch

The Monarch’s role is largely formal. Royal Assent is required for a Bill to become law, but by convention, the Monarch always gives assent to Bills passed by both Houses.

Key Term: Parliament
Parliament is the supreme legislative body in the UK, composed of the House of Commons, House of Lords, and the Monarch.

The Functions of Parliament

Parliament’s main functions are:

• enacting new laws and amending or repealing existing laws
• scrutinising and holding the government to account
• debating national issues and policies
• approving government spending and taxation

Parliament also provides the personnel for government, as ministers must be members of either House.

Key Term: legislative process
The legislative process is the series of steps by which a Bill becomes an Act of Parliament.

The Legislative Process

The process for passing primary legislation (Acts of Parliament) involves several stages in both Houses. Most Bills are introduced in the House of Commons, but some start in the House of Lords.

Stages of a Bill

1. First Reading: The Bill’s title is read out. There is no debate.
2. Second Reading: The main debate on the Bill’s principles. Members vote on whether to proceed.
3. Committee Stage: Detailed examination and possible amendment of the Bill’s clauses.
4. Report Stage: Further consideration and possible amendments.
5. Third Reading: Final review and vote.
6. Second House: The Bill repeats the above stages in the other House.
7. Consideration of Amendments: Any changes made by the second House are considered by the first House.
8. Royal Assent: The Monarch formally approves the Bill, making it law.

Key Term: primary legislation
Primary legislation is law passed by Parliament in the form of Acts of Parliament.

Key Term: secondary legislation
Secondary legislation (delegated legislation) is law made by ministers or other bodies under powers given by an Act of Parliament.

The Parliament Acts 1911 and 1949

The Parliament Acts limit the House of Lords’ power to block legislation. For most public Bills, if the Lords reject a Bill passed by the Commons in two successive sessions, the Bill can become law with Royal Assent even without the Lords’ approval. For “money Bills” (taxation and public spending), the Lords can only delay the Bill for one month.

Worked Example 1.1

A Bill to reform criminal law passes all stages in the House of Commons but is rejected by the House of Lords. The Commons pass the Bill again in the next session. Can the Bill become law without the Lords’ consent?

Answer: Yes. Under the Parliament Acts, if the Lords reject a public Bill in two successive sessions, the Bill can be sent for Royal Assent and become law without the Lords’ approval.

The Doctrine of Parliamentary Sovereignty

Parliamentary sovereignty is the principle that Parliament is the supreme legal authority in the UK. The classic definition by A.V. Dicey states:

1. Parliament can make or unmake any law on any subject.
2. No Parliament can bind a future Parliament.
3. No person or body can override or set aside an Act of Parliament.

Key Term: parliamentary sovereignty
Parliamentary sovereignty is the principle that Parliament has ultimate legal authority to make or repeal any law, and its Acts cannot be challenged by any other body.

Legal Basis of Sovereignty

Parliament’s sovereignty is recognised by both statute and common law. Courts have consistently held that Acts of Parliament are the highest form of law and cannot be questioned for validity by the courts.

Worked Example 1.2

Parliament enacts a statute that conflicts with a long-standing common law rule. Which prevails?

Answer: The statute prevails. Acts of Parliament override common law, and the courts must apply the statutory rule.

Limits on Parliamentary Sovereignty

While Parliament’s legal authority is broad, there are practical and legal limits.

Devolution

Parliament has devolved powers to Scotland, Wales, and Northern Ireland. These devolved legislatures can make laws in certain areas. However, Parliament retains the legal right to legislate on any matter, even in devolved areas, though it is politically constrained by conventions such as the Sewel Convention.

Key Term: devolution
Devolution is the transfer of certain legislative powers from the UK Parliament to regional bodies in Scotland, Wales, and Northern Ireland.

Human Rights and International Law

The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law. Courts can issue a “declaration of incompatibility” if an Act of Parliament conflicts with human rights, but Parliament is not legally required to change the law.

Key Term: declaration of incompatibility
A declaration of incompatibility is a court statement that an Act of Parliament conflicts with human rights, but does not invalidate the Act.

European Union Law and Brexit

While a member of the EU, Parliament accepted that EU law had supremacy in certain areas. However, this was a voluntary limitation, as Parliament could repeal the European Communities Act 1972. With Brexit, Parliament reaffirmed its sovereignty by repealing the 1972 Act and regaining full legislative control.

Judicial Review

Courts cannot strike down Acts of Parliament, but they can review the actions of public bodies to ensure legality and fairness. This does not affect the validity of primary legislation.

Worked Example 1.3

Parliament passes an Act that conflicts with the Human Rights Act 1998. What can the courts do?

Answer: Courts can issue a declaration of incompatibility, but the Act remains valid unless Parliament chooses to amend it.

Exam Warning

Exam Warning The courts cannot strike down or refuse to apply an Act of Parliament, even if it conflicts with human rights or international law. Only Parliament can change or repeal its own laws.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Parliament is composed of the House of Commons, House of Lords, and the Monarch.
• The House of Commons is the primary legislative chamber; the House of Lords reviews and amends legislation.
• The legislative process involves several stages in both Houses before Royal Assent.
• Parliamentary sovereignty means Parliament can make or repeal any law, and its Acts cannot be overruled by any other body.
• In practice, Parliament’s sovereignty is limited by political conventions, devolution, human rights law, and (formerly) EU law.
• Courts cannot strike down Acts of Parliament, but can review the actions of public bodies for legality.

Key Terms and Concepts

• Parliament
• legislative process
• primary legislation
• secondary legislation
• parliamentary sovereignty
• devolution
• declaration of incompatibility