Thursday, December 7, 2023 1:48 PM
Parliament and parliamentary sovereignty basics:
Parliament is one of the three institutions of the state which has the role of making the law.
A parliament is a body that consists of the house of commons, the house of lords and the crown.
Parliamentary sovereignty basically means that parliament is supreme means that law or legislation
made by the parliament is supreme. As every country has a source of ultimate authority, in countries
with codified constitution, source is the constitution and the parliament is inferior to the constitution.
And the countries with uncodified constitution as uk whose source of ultimate authority is parliament
and the law made by the parliament is the highest law in country. The principle of the parliament
being supreme goes to the heart of british constitution. Av dicey describes parliamentary sovereignty
as 'the very keystone' of the constitution. By the belief of hans kelsen it would be the 'grundnorm' of
the british constitution. Grundnorm is a german word which is known as a rule forming the underlying
basis for a legal system. Parliamentary sovereignty described by Loveland states that 'A statute, that is
a piece of legislation produced by parliament, is regarded as the highest form of law written within
the British constitutional structure'. And tomkin says ‘As a matter of English law, there is no source of
law higher than a statute’. As a matter of fact parliament can enact any law without the fear of the
law being overturned by the courts or to be stated as invalid or incompatible with the constitution as
opposed to the codified constitution where the constitution itself is supreme and parliament is
subsidiary to the constitution.
- The judges recognize this practical reality 'Parliamentary sovereignty is an empty principle if
legislation is passed which is so absurd or so unacceptable that the populace at large refuses to
recognize it as law.'
Parliamentary sovereignty and reforms in the constitution:
Parliament can bring about fundamental constitutional changes referring to parliament by passing or
repealing an act of parliament which is also known as a primary legislation without the need for
lengthy procedures as the uncodified constitution can be modified quickly.
- Primary legislation - acts of parliament/statutes
Origins of the principle of parliamentary sovereignty:
Parliamentary sovereignty began as a result of political events in the 17th century called as 'glorious
revolution' which is identified as a settlement between the crown and parliament. It was laid down in
the bill of rights 1698 over the crown in order to restrict monarchial prerogative powers (powers
which belong to the monarch/king/ queen/ ruler)
As it was established by the bill of rights 1689 that monarch/king was bound by the parliament.
Parliament consists of:
House of commons;
House of lords; and
The monarch/the king
- Together, known as king/queen in parliament.
Parliamentary sovereignty Page 1
, - Together, known as king/queen in parliament.
Judiciary and parliamentary supremacy (how is this principle enforced):
The question that arises here is that from where the principle of parliamentary sovereignty stem from
as there is not act which established this principle. Lord steyn described parliamentary sovereignty in
the case of jackson v attorney general (2005) as a judge made principle and a construct of a common
law. It is the constitution's fundamental common law rule rule as it is the courts which recognize and
accept it as the highest laws of the land. Till the courts and judges respect and acknowledge that they
are bound by this principle, it will be continued to be followed. Also barnett says about parliamentary
sovereignty "The key to acceptance lies in its acceptance...by the judges within the legal system.
Sovereignty is therefore a fundamental rule of the common law for it is the judges who uphold
parliaments sovereignty. For as long as judges accept the sovereignty of parliament, sovereignty will
remain the ultimate rule of the constitution."
Exception to the general rule (judges uphold the parliamentary sovereignty)
The general rule is that judges uphold the parliamentary sovereignty but its exception is where the
judges state might asses if they need to uphold it or not. Lord steyn in the case of jackson v attorney
general (2005) spotted the exceptional circumstances where the legislation may not be upheld by the
judges. That if there was a try to abolish judicial review which is known as the procedure where
actions by parliament, executive can be reviewed by judges or where the parliament tries to limit the
ordinary role of court which is interpretation.
Dicey’s traditional view of parliamentary supremacy:
Furthermore, Av dicey's traditional view explained parliamentary sovereignty in three ways. First
being that parliament has the right to make or unmake any law and that parliament holds a supreme
law making power on any subject matter. It can repeal and amend previous laws while also having the
power to make law retrospectively which are the law passed today that determine/amend what was
legal or illegal yesterday. There is a presumption that laws against international laws cannot be made
by the parliament. As in there case of Cheney v Conn (1968) there was a taxpayer who claimed that
some of the tax was going towards the manufacture of nuclear weapons and he claimed this was
against the international treaty known as Geneva convention (regulates how to act in times of war,
prisoners of war, wounded etc.) it was held by the court that the highest form of law in the UK is an
act of parliament and it prevails over international law. It was also held that in theory, parliamentary
sovereignty is unlimited geographically. As jennings stated 'Parliamentary sovereignty means that
parliament can legislate for all persons and all places. If it enacts that smoking in the streets of Paris is
an offence, then it is an offence". However the critics argue that the theory of parliamentary
supremacy does not reflect political reality.
Secondly, that no one can challenge the validity of an act of parliament but historically it was thought
that it is possible for the act of parliament to be set aside by the courts. In Dr bonham's case (1610)
chief justice coke stated that the courts could intervene if parliament enacted outrageous legislation.
However the traditional view of parliamentary sovereignty has prevailed as it was established via the
bills or rights in 17th century. Then we have the enrolled bill rule where the courts will simply apply
legislation made by the parliament instead of looking behind it. Moreover, in the case of Edinburgh
and Dalkeith Railway Company v Wauchope (1842) lord campbell stated "All a court of justice can look
to is the parliamentary roll (Acts of parliament are printed on calfskin rolls). They see that an act
passed both houses of parliament and that it received royal assent, and no court of justice can inquire
into the manner in which it was introduced, or what passed in parliament during the various stages of
its progress through both houses of parliament." lord Ried in the case of british railways board v pickin
Parliamentary sovereignty Page 2
Parliament and parliamentary sovereignty basics:
Parliament is one of the three institutions of the state which has the role of making the law.
A parliament is a body that consists of the house of commons, the house of lords and the crown.
Parliamentary sovereignty basically means that parliament is supreme means that law or legislation
made by the parliament is supreme. As every country has a source of ultimate authority, in countries
with codified constitution, source is the constitution and the parliament is inferior to the constitution.
And the countries with uncodified constitution as uk whose source of ultimate authority is parliament
and the law made by the parliament is the highest law in country. The principle of the parliament
being supreme goes to the heart of british constitution. Av dicey describes parliamentary sovereignty
as 'the very keystone' of the constitution. By the belief of hans kelsen it would be the 'grundnorm' of
the british constitution. Grundnorm is a german word which is known as a rule forming the underlying
basis for a legal system. Parliamentary sovereignty described by Loveland states that 'A statute, that is
a piece of legislation produced by parliament, is regarded as the highest form of law written within
the British constitutional structure'. And tomkin says ‘As a matter of English law, there is no source of
law higher than a statute’. As a matter of fact parliament can enact any law without the fear of the
law being overturned by the courts or to be stated as invalid or incompatible with the constitution as
opposed to the codified constitution where the constitution itself is supreme and parliament is
subsidiary to the constitution.
- The judges recognize this practical reality 'Parliamentary sovereignty is an empty principle if
legislation is passed which is so absurd or so unacceptable that the populace at large refuses to
recognize it as law.'
Parliamentary sovereignty and reforms in the constitution:
Parliament can bring about fundamental constitutional changes referring to parliament by passing or
repealing an act of parliament which is also known as a primary legislation without the need for
lengthy procedures as the uncodified constitution can be modified quickly.
- Primary legislation - acts of parliament/statutes
Origins of the principle of parliamentary sovereignty:
Parliamentary sovereignty began as a result of political events in the 17th century called as 'glorious
revolution' which is identified as a settlement between the crown and parliament. It was laid down in
the bill of rights 1698 over the crown in order to restrict monarchial prerogative powers (powers
which belong to the monarch/king/ queen/ ruler)
As it was established by the bill of rights 1689 that monarch/king was bound by the parliament.
Parliament consists of:
House of commons;
House of lords; and
The monarch/the king
- Together, known as king/queen in parliament.
Parliamentary sovereignty Page 1
, - Together, known as king/queen in parliament.
Judiciary and parliamentary supremacy (how is this principle enforced):
The question that arises here is that from where the principle of parliamentary sovereignty stem from
as there is not act which established this principle. Lord steyn described parliamentary sovereignty in
the case of jackson v attorney general (2005) as a judge made principle and a construct of a common
law. It is the constitution's fundamental common law rule rule as it is the courts which recognize and
accept it as the highest laws of the land. Till the courts and judges respect and acknowledge that they
are bound by this principle, it will be continued to be followed. Also barnett says about parliamentary
sovereignty "The key to acceptance lies in its acceptance...by the judges within the legal system.
Sovereignty is therefore a fundamental rule of the common law for it is the judges who uphold
parliaments sovereignty. For as long as judges accept the sovereignty of parliament, sovereignty will
remain the ultimate rule of the constitution."
Exception to the general rule (judges uphold the parliamentary sovereignty)
The general rule is that judges uphold the parliamentary sovereignty but its exception is where the
judges state might asses if they need to uphold it or not. Lord steyn in the case of jackson v attorney
general (2005) spotted the exceptional circumstances where the legislation may not be upheld by the
judges. That if there was a try to abolish judicial review which is known as the procedure where
actions by parliament, executive can be reviewed by judges or where the parliament tries to limit the
ordinary role of court which is interpretation.
Dicey’s traditional view of parliamentary supremacy:
Furthermore, Av dicey's traditional view explained parliamentary sovereignty in three ways. First
being that parliament has the right to make or unmake any law and that parliament holds a supreme
law making power on any subject matter. It can repeal and amend previous laws while also having the
power to make law retrospectively which are the law passed today that determine/amend what was
legal or illegal yesterday. There is a presumption that laws against international laws cannot be made
by the parliament. As in there case of Cheney v Conn (1968) there was a taxpayer who claimed that
some of the tax was going towards the manufacture of nuclear weapons and he claimed this was
against the international treaty known as Geneva convention (regulates how to act in times of war,
prisoners of war, wounded etc.) it was held by the court that the highest form of law in the UK is an
act of parliament and it prevails over international law. It was also held that in theory, parliamentary
sovereignty is unlimited geographically. As jennings stated 'Parliamentary sovereignty means that
parliament can legislate for all persons and all places. If it enacts that smoking in the streets of Paris is
an offence, then it is an offence". However the critics argue that the theory of parliamentary
supremacy does not reflect political reality.
Secondly, that no one can challenge the validity of an act of parliament but historically it was thought
that it is possible for the act of parliament to be set aside by the courts. In Dr bonham's case (1610)
chief justice coke stated that the courts could intervene if parliament enacted outrageous legislation.
However the traditional view of parliamentary sovereignty has prevailed as it was established via the
bills or rights in 17th century. Then we have the enrolled bill rule where the courts will simply apply
legislation made by the parliament instead of looking behind it. Moreover, in the case of Edinburgh
and Dalkeith Railway Company v Wauchope (1842) lord campbell stated "All a court of justice can look
to is the parliamentary roll (Acts of parliament are printed on calfskin rolls). They see that an act
passed both houses of parliament and that it received royal assent, and no court of justice can inquire
into the manner in which it was introduced, or what passed in parliament during the various stages of
its progress through both houses of parliament." lord Ried in the case of british railways board v pickin
Parliamentary sovereignty Page 2
