Pursuant to the text of ‘The English Constitution’ edited by Walter Bagehot in 1867, the House of Commons has the ultimate authority in the English Constitution, while the Supremacy of the Crown is prevailing in the British Parliament. In light of the strong historical tradition, the issue on the constraints imposed by the UK courts on parliamentary sovereignty is high on today’s socio-political agenda (Turpin and Tomkins, 2007).
By definition, parliamentary sovereignty (also referred to as ‘legislative supremacy’ or ‘parliamentary supremacy’) is the constitutional law concept holding that that the legislative bodies are entitled to ‘absolute sovereignty’ and are supreme over any other government institutions such as executive bodies and courts. More than that, the concept of parliamentary sovereignty entitles legislative bodies to alert or repeal previous legislation regardless of any written laws (including a constitution) or precedents. This implies that the legislative bodies in today’s democracies enjoy almost unlimited (or unconstrained) sovereignty. The concept, however, does not imply the separation of powers that restricts the scope of legislative activity to general law-making and the mechanism of judicial reviewing (Alder, 2009).
The concept of sovereign legislature is applicable in the United Kingdom. The American legal historians claim that owing to the parliamentary supremacy, the English law did not transform into solely evolve into American due process. The historical change turned up in 2005 case called R (Jackson) v Attorney General when Lord Bingham upheld the doctrine of parliamentary supremacy in the English Law.
In due context, parliamentary experts distinguish legal and political sovereignty by claiming that the UK Parliament is not politically sovereign body. Once the Parliament passes contradictory legislation, it is not automatically implemented in practice. Such law subsequently passes through various reviews by government departments that alert it in various possible ways, as well as through the judiciary that interprets it in its own way to make a precedent out of it. Such proceedings, however, do not make the UK Parliament legally bound. From the legal perspective, the Parliament is sovereign to any legislation by its own will and disposition. While the society will automatically protest against any unconstitutional decisions or acts by the UK Parliament regarding them as utterly improper, this does not mean that the Parliament does not have enough powers to pass unpopular legislation. Furthermore, passing unpopular or improper legislation does not entitle the UK courts to hold the Act of Parliament invalid (Jowell and Dawn, 2007).
The most vivid changes regarding the extent of the parliamentary sovereignty have taken place only recently when British scholars and judges have questioned the conventional paradigm of the concept. The challenging of the concept was boosted by constitutional changes in the UK that heated the updated bate over the appropriateness of parliamentary sovereignty. First, the UK Parliament holds the right of unilateral withdrawal of the legislative powers possessed and executed by the Scottish Parliament, Welsh Assembly, and Northern Ireland Assembly. Second, the UK is prone to the legal order imposed by the European Union on its member states pursuant to the European Communities Act 1972.
In light of the UK membership in the European Union, the UK Parliament entitled to parliamentary sovereignty may repeal the acts of utmost significance (such as the Human Rights Act) or even the European Convention itself. This means that the UK Parliament is virtually free from any internal or external constraints that would restrict its ability to legislate. After the UK incorporated the European Convention of Human Rights into the Human Rights Act in 1998, the domestic courts have been more involved in questioning the “constitutionality” of parliamentary statutes and their adherence to the requirements of the Convention. At that, the UK courts do not only interpret statutes in terms of their compatibility with the Convention, they are also free to challenge the Parliament about the appropriateness of its decisions.
Nonetheless, there still are limits to parliamentary sovereignty. Parliamentary and judiciary experts have recently recognized the inappropriateness of the courts protecting undemocratic statutes that impede citizens’ civil rights. The abovementioned R (Jackson) v Attorney General (2005) raised judicial arguments favoring the limits to parliamentary sovereignty. Specifically, in the mentioned trial, Lord Hope claimed the principle of parliamentary as inappropriate since people would never recognize absurd legislation as law. Such stance primarily articulates the rule of the law and protects civil liberties in the United Kingdom.
Granted with an ‘unwritten constitution,’ for centuries the sovereign UK Parliament has applied statues and laws to enact legislature for the United Kingdom almost independently. Notwithstanding the UK parliamentary tradition, the core question on current agenda concerns the circumstances under which the courts may challenge the acts passed by the Parliament. Foremost, the mechanism of judicial review entitles the courts to resolve public law disputes and deprive the Parliament of misusing its sovereign powers. This means that the UK citizens are able to safeguard their interests in courts and challenge the decisions of public authorities through the process of the judicial review that entitles judges to review the lawfulness of legislative and executive decisions. In other words, the mechanism of the judicial review ceases public authorities from abusing and exceeding the powers granted to them by the Parliament. At that, the Government controls public law issues in the UK, while the core purpose of administrative law consists in keeping the powers of government within legal bounds. Backed up by the procedure of judicial review, the UK courts affect the quality of the control over administrative actions. This means that the judicial review entitles the UK courts to challenge the decisions made by the public authorities and assess their lawfulness.
Another high issue in due context is the extent to which the judicial review matches political decisions. While judicial review challenges the failures and false decisions of legislative bodies, the very mechanism does not aim to politically oppose legislative majorities. With the right to suggest corrections and better protect civil rights of the UK citizens, the courts apply the judicial review to safeguard the applicable laws and make them consistent with the democratic principles. This way, the judiciary bodies separate the inappropriately drafted legislation by challenging the UK legislators in the people’s best interests. The compatibility of the parliamentary decisions with human rights envisaged in the Convention is therefore an outcome of courts’ interpretation of inner parliamentary decisions in the UK. In addition, pursuant to the Human Rights Act, the UK courts apply the power to restrict the legislative autonomy and powers of the Parliament (Sections 3 and 4) (Doherty, 2016).
Overall, the domestic judicial review has marked an epochal change in the UK administrative law. Owing to the judicial review, the UK citizens are entitled to the rule of the law and a free and fair trial whenever their civil rights and democratic values are suppressed.
Still, the Parliament solely determines what is legal in Britain, which gives grounds to continuous controversy over the issue of the lawfulness of parliamentary and executive decisions in the United Kingdom. With that, the issue of parliamentary sovereignty is the issue of utmost controversy in the British society. This sovereign body solely amasses the powers of the state just as it used to throughout the centuries. Without a written constitution, the medieval sovereignty keeps on track enabling the Members of the Parliament enjoy unlimited powers.
Thus, citizens’ rights and responsibilities in the UK largely depend on the will of the elected assembly. While the Supreme Court in the UK can interpret the laws and the treaties of the Parliament and rule their unconstitutionality, the Parliament, in its turn, holds the right to renew the legality of any law through simple majority vote (The Independent, 2015).
- Alder, J. (2009). Constitutional and Administrative Law. Palgrave Macmillan.
- Doherty, M. (2016). Public Law. Rutledge.
- Jowell, J., Dawn, O. eds. (2007). The Changing Constitution. Oxford University Press.
- The Independent. “The Independent guide to the UK constitution: The supremacy of Parliament” http://www.independent.co.uk/news/uk/politics/the-independent-guide-to-the-uk-constitution-the-supremacy-of-parliament-10308704.html. Accessed January 22, 2016.
- Turpin, C., Tomkins, A. (2007). British government and the constitution: text and materials. Cambridge University Press.
