Parliamentary Sovereignty
- “Parliament thus defined has… 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 the right to override or set aside
the legislation of Parliament” — A.V. Dicey
Constitutional supremacy
- Written constitutions are usually supreme over all ordinary law, and laws are only valid when
they conform to the constitution, as affirmed by the US Supreme Court in Marbury v Madison.
- Marbury v Madison — Supreme Court unable to award remedy in Marbury’s favour because it
went against Article 3(2) of the US Constitution, although they were eligible to do so under
Section 13 of the Judiciary Act 1789, showing Constitutional supremacy.
- Supreme constitutions establish their supremacy in different ways
• Malta — Article 6 of Constitution calls laws that go against it void (express clause)
• US — decision in Marbury v Madison (judicial principle)
- Many systems uphold constitutional supremacy by:
• Protecting provisions from easy repeal and amendment by only allowing it to occur through
procedures that are stricter than those used to repeal ordinary law
• e.g. Brazil — altering ordinary law requires majority vote in both houses of Congress, but
altering the Constitution requires cross-party support shown by proposed amendments being
approved by three fifths of both houses in 2 different readings.
• Empowering a Supreme or Constitutional Court that reviews legal and political instruments to
ensure that they do not go again the Constitution.
• e.g. Benin — Constitution refers to their Constitutional Court as ‘the highest jurisdiction of the
State in constitutional matters’
- Constitutional supremacy requires constitutions to be codified and written down so it can be
clearly identified and distinguished from ordinary law, hence making the UK Constitution not
supreme, but instead its Parliament.
Why is Parliament sovereign?
- Historical development of sovereignty
• Pre-1688
• Supreme authority rested with Crown
• Monarch could exercise full executive power through Privy Council, and some legislative
power through proclamations under the royal prerogative
• Parliament stated as advisory body to monarch, but had arisen as alternative legislative body
during Tudor period when they provided key mechanisms through which monarch could
‘legalise their actions’
• In seventeenth century, when Stuart Kings took to throne, they wanted to establish power back
to the monarch
• 1610 — King James reaffirmed the supremacy of monarchs in a speech to Parliament,
referring to them as ‘God’s lieutenants upon earth’
• Parliament refused to comply with monarch’s demands, so courts had to decide on authority of
each institution, presenting that it was mainly up to courts to limit powers
• Affects King’s powers:
• e.g. Bates’s Case — Courts upheld validity of King’s import duty, which supported King’s
power to impose tax.
, • e.g. Case of Proclamations — King claimed power to ‘prohibit new buildings in and about
London’, where courts held that King could not legislate without Parliament’s authority
• Affects Parliament’s powers:
• e.g. Dr Bonham’s Case — Courts held that College could not rely on its Statute of
Incorporation to fine Dr Bonham for practicing medicine without appropriate license. Also
held common law to be superior to Acts of Parliament
• Weakness of Parliament was that monarch had power under royal prerogative to control when
they sat
• 1625 — Although Crown needed consent from Parliament to impose taxation, Charles I
attempted to impose taxes without permission
• 1629 — Charles I summoned Parliament, but they refused to allow a raise on taxes, so he
adjourned them for 11 years.
• 1641 — Parliamentarians presented Charles I with ‘Grand Remonstrance’, which contained
Triennial Act 1641, requiring monarch to call Parliament at least once every 3 years
• Conflict between Crown and Parliament led to civil war, and Parliamentary forces overcame the
Crown, executing Charles I in 1649
• 1660 — Monarchy reinstated by Charles II
• 1685 — James II become King, and tensions between Crown and Parliament rose again. He
exercised his powers without acknowledgment of Parliamentary authority, causing opposition to
the monarchy to grow
• William of Orange and his army came to England and took over large portion of country,
leaving James II dissolve Parliament in 1688 and flee, giving rise to the Glorious Revolution
• Glorious Revolution and Bill of Rights 1688
• William of Orange could take the throne on one condition: he accepted the Bill of Rights, which
established parliamentary supremacy and stated that the Crown could not exercise authority
without Parliament’s permission. Also stated that Parliament should meet more regularly
• e.g. Article 9 — Freedom of Debates in Parliament could not be impeached or questioned
outside of Parliament
• Parliamentary supremacy later confirmed by Act of Settlement 1700
• Parliamentary sovereignty and the British Empire
• British Empire reached its peak in the 18th and 19th century, and Parliament’s sovereignty
became further established due to the spread of the British legal system, allowing Parliament to
pass laws on colonies. Government institutions on those colonies were inferior to UK
Parliament
• e.g. Constitution Act 1902 — gave Australian State of New South Wales a Constitution
• e.g. South Africa Act 1909 — created South Africa from various colonies
• e.g Indian Independence Act 1947 — split Indian subcontinent into India and Pakistan
- Legal Basis for Parliamentary Sovereignty
• According to Adam Tonkins, legislative supremacy of Parliament involves looking at the
relationship between Acts of Parliament and the law
• Wade and the rule of judicial obedience
• Judicial obedience — judges obey the wishes and enactments of Parliament
• Wade regards 3 points as the legal basis for Parliamentary sovereignty
• Parliament is sovereign because courts recognise its Acts as supreme, as confirmed in R
(Jackson) v Attorney-General
• Parliamentary sovereignty is a political principle. It is not a legal principle because Parliament
would have to rely on that statute for its existence, which could be repealed at any time,
meaning Parliament would not be “continuously sovereign”
- “Parliament thus defined has… 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 the right to override or set aside
the legislation of Parliament” — A.V. Dicey
Constitutional supremacy
- Written constitutions are usually supreme over all ordinary law, and laws are only valid when
they conform to the constitution, as affirmed by the US Supreme Court in Marbury v Madison.
- Marbury v Madison — Supreme Court unable to award remedy in Marbury’s favour because it
went against Article 3(2) of the US Constitution, although they were eligible to do so under
Section 13 of the Judiciary Act 1789, showing Constitutional supremacy.
- Supreme constitutions establish their supremacy in different ways
• Malta — Article 6 of Constitution calls laws that go against it void (express clause)
• US — decision in Marbury v Madison (judicial principle)
- Many systems uphold constitutional supremacy by:
• Protecting provisions from easy repeal and amendment by only allowing it to occur through
procedures that are stricter than those used to repeal ordinary law
• e.g. Brazil — altering ordinary law requires majority vote in both houses of Congress, but
altering the Constitution requires cross-party support shown by proposed amendments being
approved by three fifths of both houses in 2 different readings.
• Empowering a Supreme or Constitutional Court that reviews legal and political instruments to
ensure that they do not go again the Constitution.
• e.g. Benin — Constitution refers to their Constitutional Court as ‘the highest jurisdiction of the
State in constitutional matters’
- Constitutional supremacy requires constitutions to be codified and written down so it can be
clearly identified and distinguished from ordinary law, hence making the UK Constitution not
supreme, but instead its Parliament.
Why is Parliament sovereign?
- Historical development of sovereignty
• Pre-1688
• Supreme authority rested with Crown
• Monarch could exercise full executive power through Privy Council, and some legislative
power through proclamations under the royal prerogative
• Parliament stated as advisory body to monarch, but had arisen as alternative legislative body
during Tudor period when they provided key mechanisms through which monarch could
‘legalise their actions’
• In seventeenth century, when Stuart Kings took to throne, they wanted to establish power back
to the monarch
• 1610 — King James reaffirmed the supremacy of monarchs in a speech to Parliament,
referring to them as ‘God’s lieutenants upon earth’
• Parliament refused to comply with monarch’s demands, so courts had to decide on authority of
each institution, presenting that it was mainly up to courts to limit powers
• Affects King’s powers:
• e.g. Bates’s Case — Courts upheld validity of King’s import duty, which supported King’s
power to impose tax.
, • e.g. Case of Proclamations — King claimed power to ‘prohibit new buildings in and about
London’, where courts held that King could not legislate without Parliament’s authority
• Affects Parliament’s powers:
• e.g. Dr Bonham’s Case — Courts held that College could not rely on its Statute of
Incorporation to fine Dr Bonham for practicing medicine without appropriate license. Also
held common law to be superior to Acts of Parliament
• Weakness of Parliament was that monarch had power under royal prerogative to control when
they sat
• 1625 — Although Crown needed consent from Parliament to impose taxation, Charles I
attempted to impose taxes without permission
• 1629 — Charles I summoned Parliament, but they refused to allow a raise on taxes, so he
adjourned them for 11 years.
• 1641 — Parliamentarians presented Charles I with ‘Grand Remonstrance’, which contained
Triennial Act 1641, requiring monarch to call Parliament at least once every 3 years
• Conflict between Crown and Parliament led to civil war, and Parliamentary forces overcame the
Crown, executing Charles I in 1649
• 1660 — Monarchy reinstated by Charles II
• 1685 — James II become King, and tensions between Crown and Parliament rose again. He
exercised his powers without acknowledgment of Parliamentary authority, causing opposition to
the monarchy to grow
• William of Orange and his army came to England and took over large portion of country,
leaving James II dissolve Parliament in 1688 and flee, giving rise to the Glorious Revolution
• Glorious Revolution and Bill of Rights 1688
• William of Orange could take the throne on one condition: he accepted the Bill of Rights, which
established parliamentary supremacy and stated that the Crown could not exercise authority
without Parliament’s permission. Also stated that Parliament should meet more regularly
• e.g. Article 9 — Freedom of Debates in Parliament could not be impeached or questioned
outside of Parliament
• Parliamentary supremacy later confirmed by Act of Settlement 1700
• Parliamentary sovereignty and the British Empire
• British Empire reached its peak in the 18th and 19th century, and Parliament’s sovereignty
became further established due to the spread of the British legal system, allowing Parliament to
pass laws on colonies. Government institutions on those colonies were inferior to UK
Parliament
• e.g. Constitution Act 1902 — gave Australian State of New South Wales a Constitution
• e.g. South Africa Act 1909 — created South Africa from various colonies
• e.g Indian Independence Act 1947 — split Indian subcontinent into India and Pakistan
- Legal Basis for Parliamentary Sovereignty
• According to Adam Tonkins, legislative supremacy of Parliament involves looking at the
relationship between Acts of Parliament and the law
• Wade and the rule of judicial obedience
• Judicial obedience — judges obey the wishes and enactments of Parliament
• Wade regards 3 points as the legal basis for Parliamentary sovereignty
• Parliament is sovereign because courts recognise its Acts as supreme, as confirmed in R
(Jackson) v Attorney-General
• Parliamentary sovereignty is a political principle. It is not a legal principle because Parliament
would have to rely on that statute for its existence, which could be repealed at any time,
meaning Parliament would not be “continuously sovereign”
