Parliament and parliamentary sovereignty - Structure and fun...

Learning Outcomes

This article outlines the structure and functions of the UK Parliament and the doctrine of parliamentary sovereignty, including:

• The composition, membership categories, and constitutional roles of the House of Commons, the House of Lords, and the Monarch as elements of the ‘tripartite’ Parliament
• Parliament’s principal functions—lawmaking, financial control, scrutiny of the executive, and democratic representation—and how these are exercised in practice
• Dicey’s three core principles of parliamentary sovereignty, their legal basis, and their relevance to SQE1 problem questions
• The relationship between Parliament, the rule of law, and the separation of powers, including checks and balances between institutions
• The detailed stages of the legislative process for primary legislation in each House, from First Reading to Royal Assent, and variations for different types of Bills
• The constitutional significance of the Parliament Acts 1911 and 1949 in preserving Commons primacy and enabling legislation without Lords’ consent
• The nature, sources, and types of delegated legislation, together with parliamentary and judicial controls over its use
• Practical and legal limits on sovereignty arising from devolution, the Human Rights Act, judicial review, constitutional conventions, and former EU membership
• Application of these principles to SQE-style scenarios involving statutory conflict, constitutional limits, validity of legislation, and the respective roles of Parliament and the courts

SQE1 Syllabus

For SQE1, you are required to understand the structure and functions of the UK Parliament and the doctrine of parliamentary sovereignty, with a focus on the following syllabus points:

• the structure and constitutional composition of the UK Parliament, including the House of Commons, House of Lords, and the Monarch
• the main roles and functions of each element of Parliament
• the detailed stages of the legislative process for primary legislation in both Houses
• the mechanisms for the enactment of secondary (delegated) legislation and related parliamentary controls
• the doctrine of parliamentary sovereignty (Dicey), its legal basis, and contemporary developments
• the legal basis for and limits on parliamentary sovereignty, including via the Human Rights Act 1998, devolution to Scotland, Wales, and Northern Ireland, and former EU law
• the relationships between Parliament, the executive (government), and the judiciary, including the constitutional principles of the rule of law and separation of powers
• the importance of parliamentary privilege, financing functions, and mechanisms for holding government to account

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 component of the constitutional system of England and Wales. Parliamentary sovereignty underpins the legal system, holding that Parliament is the supreme law-making authority. Parliament’s structure, encompassing both elected and appointed chambers and the formal role of the Monarch, reflects a historic evolution of purpose and constitutional responsibility. The procedures for making new laws, scrutinising and checking the government, and controlling national finances are central to understanding how the constitution works in practice. Yet, Parliament’s absolute authority is both a theoretical principle and a practical reality shaped by statutory developments, constitutional conventions, and the changing relationship between Parliament, the courts, and devolved institutions.

The Structure of Parliament

Parliament is composed of three distinct elements: the House of Commons, the House of Lords, and the Monarch. This ‘tripartite’ structure reflects the UK’s unique historical and constitutional evolution. Each element has formal constitutional status and a specific role in the legislative process.

The House of Commons

The House of Commons is the directly elected chamber, and its primary function is legislative. There are 650 Members of Parliament (MPs), each elected by a single-member constituency using the first-past-the-post voting system. The Commons is presided over by the Speaker, whose role is to maintain order and impartiality in debates and proceedings.

The Commons carries out several core functions:

• Debates and passes legislation, including initiating and amending most public Bills
• Scrutinises government policy, actions, and administration via debates, questions, and a robust committee system (notably departmental select committees)
• Represents the interests and concerns of constituents
• Approves government spending and taxation measures (granting and scrutinising supply)
• Provides a pool of government ministers and the Prime Minister, who must be MPs or, in rare instances, members of the House of Lords

The prominence of the Commons is founded on democratic legitimacy and reinforced by constitutional rules that give it primacy in the passage of legislation. The Parliament Acts 1911 and 1949 specifically restrict the powers of the Lords in order to uphold this supremacy.

The House of Lords

The House of Lords is unelected, comprising life peers appointed for service or qualification, up to 92 hereditary peers (a number now fixed by law), and 26 Lords Spiritual (the most senior Church of England bishops). Reforms since the House of Lords Act 1999 have reduced the hereditary membership and enhanced life peer appointments for greater diversity and experience.

The Lords’ principal functions involve:

• Reviewing and suggesting amendments to legislation passed by the Commons, providing further scrutiny and specialist qualification
• Delaying but rarely blocking the progress of public Bills, except in defined circumstances
• Debating matters of public policy, bringing qualification and long-term analysis to issues sometimes overlooked by the directly elected chamber
• Acting as a constitutional safeguard against ill-considered legislation, although its power to enforce this is limited by the Parliament Acts

Importantly, the Lords is a revising chamber, not a rival. Its aim is to improve legislation, not to frustrate the will of the elected Commons. The detailed scrutiny provided, particularly at committee stage, leads in practice to improved law and government accountability.

The Monarch

The Monarch is the formal constitutional head of state, and a constituent element of Parliament. The Monarch’s functions are, in modern terms, almost entirely ceremonial or the subject of constitutional convention. The monarch’s involvement in legislation is restricted to the formal grant of Royal Assent—a legal requirement for an Act of Parliament to come into force. By constitutional convention, the Monarch never withholds Royal Assent to Bills passed in accordance with parliamentary procedure.

In addition to their legislative role, the Monarch retains certain prerogative powers (the royal prerogative), some of which—as with the appointment of the Prime Minister—are exercised in practice only according to established conventions and the advice of Ministers.

Key Term: Parliament
Parliament is the supreme legislative authority in the UK, made up of the House of Commons, House of Lords, and the Monarch acting together.

The Functions of Parliament

Parliament’s functions extend well beyond the making of laws. The historic and modern functions include:

• Enacting new statutes and amending or repealing existing laws—Parliament is the principal source of primary legislation
• Scrutinising and holding the executive to account for its actions and policies, both through questions, debates, select committee inquiries, and votes of confidence
• Approving supply: setting government spending, taxation, and overall financial policy
• Providing a forum for debate on national and international matters of public importance
• Redressing grievances and protecting constituents’ interests
• Supplying government ministers, as ministerial appointments are drawn from Parliament

Additionally, Parliament enjoys privileges designed to protect its independence and effectiveness. These include freedom of speech within parliamentary proceedings (enshrined in Article 9 of the Bill of Rights 1689), exclusive control over its procedures, and disciplinary powers to regulate the conduct of its members.

Key Term: legislative process
The legislative process is the set of stages and procedures by which Bills are formally considered, debated, amended, and enacted as Acts of Parliament.

The Legislative Process

The making of primary legislation (statutes) follows a structured, multi-stage process, designed to allow for scrutiny, debate, and, where appropriate, amendment. Secondary (delegated) legislation follows a different process, reflecting its origins in enabling statutes.

Stages of a Bill

A Bill—the draft form of proposed legislation—must pass through several stages in both Houses before it becomes law. The stages are as follows:

• First Reading: A formal introduction to Parliament. Only the title is read out; there is no debate.
• Second Reading: The main debate on the principles of the Bill. Members debate the overall purpose, and a vote decides whether to proceed.
• Committee Stage: Detailed scrutiny of the Bill, clause by clause. In the Commons, this is often conducted by a Public Bill Committee. In the Lords, the Committee of the Whole House is often used, especially for major or constitutional Bills. Amendments can be proposed and voted on.
• Report Stage: Further opportunity to consider and amend the Bill, reflecting issues raised in committee.
• Third Reading: Final chance to debate and pass the Bill in its current form. Normally a short debate, focused on the content as amended.
• Second House: The Bill goes through the same stages in the other House. Amendments by the second House are considered by the first, and the process may repeat (‘ping-pong’) until both Houses agree on the text.
• Royal Assent: The Bill, having passed both Houses, is presented for Royal Assent by the Monarch. On receiving Royal Assent, the Bill becomes an Act of Parliament and part of the law.

Separate procedures exist for Private Bills (affecting particular individuals or bodies), Private Members’ Bills (proposed by MPs who are not government ministers), and Hybrid Bills (having elements of both).

The structure of Acts of Parliament is consistent, with elements including a short and long title, preamble, enacting formula, substantive sections, schedules, date of Royal Assent, and details on commencement and extent.

Key Term: primary legislation
Primary legislation is law enacted by Parliament in the form of an Act of Parliament. It reflects the supreme authority of Parliament and takes precedence over common law and delegated legislation.

Key Term: secondary legislation
Secondary legislation, also called delegated or subordinate legislation, is law made by ministers or other authorised bodies under powers granted by an Act of Parliament (the ‘enabling’ Act). Examples include regulations, statutory instruments, orders, and rules.

The Legislative Process and the Role of Committees

Committees play an important part in scrutinising the detail of a Bill. For significant or controversial Bills, a Committee of the Whole House may be used, allowing all members to participate rather than limiting debate to a smaller committee. The use of public Bill committees and, in the Lords, the focus on detailed specialist committees, reflect Parliament’s desire to ensure rigorous examination.

Parliamentary Procedures for Delegated Legislation

The making of secondary legislation is typically subject to either the affirmative or negative resolution procedure, as set out in the enabling Act:

• Under the affirmative procedure, a statutory instrument requires explicit approval by one or both Houses before becoming law.
• The negative procedure means the instrument becomes law unless an objection is raised within a set number of days (usually 40 days).

The Parent Act may also require notification to Parliament (‘laying before Parliament’) or provide for super-affirmative procedures in special cases (e.g., for some remedial orders under the Human Rights Act).

The Parliament Acts 1911 and 1949

The Parliament Acts are significant constitutional statutes that limit the power of the House of Lords to block Commons-approved public Bills. As a result of these Acts:

• The Lords can only delay most public Bills for up to one year (reduced from two by the 1949 Act).
• For money Bills (Bills certified by the Speaker as dealing only with national taxation or supply), the Lords can delay for only one month and have no power to reject.
• If the Lords reject a public Bill passed by the Commons in two successive sessions, and one year elapses between second and third readings in the Commons, the Bill may be presented for Royal Assent and become law without the Lords’ consent.

The Parliament Acts specifically exclude Bills seeking to extend the maximum life of Parliament beyond five years.

The practical effect is that, while the Lords retain revising powers, ultimate legislative supremacy rests with the Commons, the only elected chamber.

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 House of Lords has rejected a public Bill in two successive sessions, and one year has elapsed between the Second Reading in the first session and the Third Reading in the next, the Bill may be presented for Royal Assent without the Lords’ approval and becomes law.

Controls over Delegated Legislation

Unlike primary legislation, delegated legislation is subject to judicial review. A court may quash secondary legislation that:

• Exceeds the authority granted by the enabling Act (ultra vires)
• Fails to follow the correct parliamentary procedure or prescribed process
• Is irrational or otherwise unlawful

Judicial review is an important safeguard in the constitutional structure, ensuring ministerial or administrative regulations made under delegated powers remain within the bounds set by Parliament.

Commencement, Extent, and Repeal

Most Acts specify their own commencement dates or provide for commencement by ministerial order. Unless otherwise stated, an Act takes effect from the date when it receives Royal Assent. Acts also specify their territorial extent, reflecting the devolution settlements or the UK-wide application of particular statutes. Repeal or amendment of an Act may be express (where a later Act specifically repeals or amends earlier provisions) or implied (where a later statute is inconsistent with an earlier one).

Worked Example 1.2

A statute enacted by Parliament specifies a definition for a legal term that differs from the previous common law understanding. Which definition must the courts apply?

Answer:
The statutory definition prevails. Acts of Parliament override common law, so the court is bound to apply the definition enacted by Parliament.

The Doctrine of Parliamentary Sovereignty

The doctrine of parliamentary sovereignty is the core constitutional principle that Parliament can make or unmake any law and that no other body can override or set aside parliamentary legislation. A.V. Dicey formulated the classic doctrine as comprising three main elements:

• Parliament has the right to make or unmake any law on any matter whatsoever (positive aspect; no subject matter limits).
• No Parliament can bind its successors or be bound by its predecessors; every Parliament is equally sovereign (no entrenchment).
• No person or body—including the courts—can override, set aside, or question the validity of an Act of Parliament (negative aspect; no legal limits).

Key Term: parliamentary sovereignty
Parliamentary sovereignty is the doctrine that Parliament is the supreme legal authority in the UK, able to enact or repeal any law, and that no other person or body—including the courts—can question, override, or set aside Acts of Parliament.

The practical impact of the doctrine is significant: parliamentary sovereignty means that all other sources of law—common law, the royal prerogative, delegated legislation, or preceding statutes—must yield in the face of an Act of Parliament. It is both a source of constitutional strength and flexibility and the basis for legally unlimited law reform.

However, the doctrine has developed and been limited in practice, especially through:

• devolved government arrangements in Scotland, Wales, and Northern Ireland
• the Human Rights Act 1998 and the incorporation of European human rights law
• former membership and subsequent withdrawal from the European Union
• judicial development and constitutional statutes
• political conventions and the rule of law

Legal Basis of Sovereignty

The doctrine’s authority rests on common law, case law, and statute (notably the Bill of Rights 1689 and the Parliament Acts). Courts have repeatedly affirmed that no challenge may be made to the validity of an Act of Parliament. In Pickin v British Railways Board [1974] AC 765, the House of Lords held that the courts cannot question parliamentary procedure or the validity of an Act. Instead, courts must apply the law as enacted.

Constitutional statutes—such as the Human Rights Act, the Scotland Act, and others—are given additional protection and may only be expressly, not impliedly, repealed, but this is a judicial development, not a legal limit on sovereignty itself.

Worked Example 1.3

Parliament passes a statute that conflicts with a centuries-old common law rule. What should the court do when asked to interpret the law in a case?

Answer:
The court must apply the statute, as Acts of Parliament take precedence over common law.

Limits on Parliamentary Sovereignty

Parliament’s sovereignty, while legally supreme, is constrained in practice by political, legal, and constitutional developments. These limits are not absolute barriers but rather reflect the evolving constitutional order.

Devolution

Devolved government in Scotland, Wales, and Northern Ireland is based on statutes passed by Parliament. Each devolved legislature has legislative competence over certain subject areas, such as health and education, while Parliament reserves power over other ‘reserved matters’, including foreign affairs, constitution, and national security.

The Sewel Convention, now acknowledged in statute, holds that Parliament ‘will not normally legislate with regard to devolved matters’ without the consent of the relevant devolved legislature. Nonetheless, Parliament retains the legal right to legislate in any area, even those devolved, although it is widely recognised that there would be severe political consequences were Parliament to override devolved institutions without consent.

Key Term: devolution
Devolution is the transfer or delegation of legislative and administrative powers from the central UK Parliament to regional assemblies and governments in Scotland, Wales, and Northern Ireland.

Legislative Competence

Acts of devolved legislatures are not supreme in the same way as Acts of Parliament; they are limited by the statutes that created them. The courts may declare Acts of the devolved parliaments to be outside their legislative competence and therefore invalid if they exceed the powers conferred or if they conflict with the Human Rights Act or, formerly, with EU law.

Constitutional Entrenchment?

Statutes such as the Scotland Act 2016 and Wales Act 2017 refer to the devolved institutions as a ‘permanent part of the UK’s constitutional arrangements’ and require a referendum before abolition. However, parliamentary sovereignty means that Parliament could, legally, repeal these provisions, although only with significant political repercussions.

Human Rights and International Law

The Human Rights Act 1998 incorporates the European Convention on Human Rights into domestic law. Courts are required to interpret legislation, ‘so far as it is possible to do so’, in a way that is compatible with Convention rights. If this is not possible, the higher courts may make a declaration of incompatibility, signalling that the Act violates human rights—but Parliament is under no legal obligation to amend or repeal the offending provision.

Key Term: declaration of incompatibility
A declaration of incompatibility is a statement by a superior court that a provision of primary legislation is incompatible with rights under the Human Rights Act 1998. The declaration does not invalidate the statute, but may prompt Parliament to amend it.

Importantly, even when Parliament enacts laws that breach human rights, those laws remain valid and enforceable unless Parliament itself makes changes.

International Law and Treaties

The UK follows a ‘dualist’ tradition: international treaties have no effect in domestic law until incorporated by an Act of Parliament. As a result, Parliament can pass statutes that contravene the UK’s international obligations, and the courts will still apply parliamentary law.

European Union Law and Brexit

Parliament’s concession to the supremacy of EU law—through the European Communities Act 1972—was a voluntary act that could be (and was) reversed by Parliament itself. While a member of the EU, Parliament accepted the supremacy and direct effect of EU law in certain fields. However, the European Union (Withdrawal) Act 2018 repealed the European Communities Act and disconnected UK courts from the obligation to give effect to new or amended EU law.

Retained EU law (EU law preserved in UK law at the point of exit) applies only so far as provided for by domestic statute and can be modified or repealed by Parliament.

Judicial Review

Although UK courts cannot review the validity of Acts of Parliament, they do exercise judicial review over delegated legislation and the actions of public bodies. Through judicial review, courts ensure that the executive does not exceed or abuse statutory powers and that legal procedures and fundamental legal principles (including common law limits) are observed. The Human Rights Act and other constitutional statutes expand the grounds and potential remedies available in judicial review cases.

Worked Example 1.4

Parliament enacts a statute that directly contradicts a provision of the Human Rights Act. The courts find the new statute incompatible with Convention rights. What can the court do?

Answer:
The court may make a declaration of incompatibility under s 4 of the Human Rights Act 1998, but the statute remains valid and must be applied unless Parliament amends or repeals it.

Political and Practical Limits

While Parliament’s legal sovereignty is absolute, it is moderated by political considerations, constitutional conventions, the expectations of the public, and the threat of political repercussions. Parliamentary sovereignty depends for its effectiveness not only on law, but on the willingness of government, Parliament, and the public to accept its exercise.

Exam Warning

Exam Warning

The courts in the UK cannot strike down or refuse to apply an Act of Parliament, even if it conflicts with human rights, treaty obligations, or international law. Only Parliament can change its own laws or limit its own sovereignty.

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, each with distinct constitutional and legislative roles.
• The House of Commons is the primary legislative chamber; the House of Lords is a revising chamber with power to delay and scrutinise but not block most legislation.
• The main functions of Parliament are legislation, scrutiny of the executive, financial control, representation, and the provision of government ministers.
• The legislative process involves sequential stages in both Houses: first reading, second reading, committee stage, report stage, third reading, and Royal Assent.
• The Parliament Acts 1911 and 1949 limit the Lords’ power to block Commons-approved legislation, preserving the primacy of the elected chamber and enabling constitutional change when necessary.
• Parliament’s sovereignty is defined by the ability to make or repeal any law, without being bound by prior or future Parliaments or overruled by any court or person.
• Political, legal, and practical constraints—such as devolution, human rights law, judicial review, and international law—affect the real exercise of sovereignty but do not override Parliament’s legal supremacy.
• Acts of devolved legislatures are subject to the limits set by Parliament (legislative competence), with the UK Parliament holding ultimate law-making authority across the UK.
• The Human Rights Act 1998 empowers courts to issue declarations of incompatibility but not to override or invalidate Acts of Parliament.
• The UK’s exit from the EU has resulted in the repeal of the European Communities Act 1972 and the recognition of Parliament’s reasserted sovereignty, with retained EU law remaining in force at Parliament’s discretion.
• Judicial review protects the rule of law and constitutional balance by holding public bodies accountable, but does not extend to questioning the validity of primary legislation.
• Constitutional conventions, political expectations, and public opinion shape the practical exercise of parliamentary sovereignty.

Key Terms and Concepts

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