Parliamentary Law Making: Parliamentary Supremacy (Copy)

Definition

• Parliamentary Supremacy (Sovereignty) means Parliament is the supreme law-making body in the UK.
• No other authority (courts, government, or monarch) can override or set aside an Act of Parliament.
• Parliament has the legal power to make, amend, or repeal any law, and its laws must be applied by the courts.

Dicey’s Classic Definition (1885)

A.V. Dicey described parliamentary supremacy in three key points:

1. Parliament Can Make Or Unmake Any Law
   • Parliament’s legislative power is unlimited.
   • Example: War Damage Act 1965 reversed Burmah Oil v Lord Advocate (1965), removing compensation for wartime destruction.
2. No Parliament Can Bind A Future Parliament
   • Each new Parliament has equal sovereignty.
   • Laws can be repealed or changed at any time.
   • Example: Fixed-term Parliaments Act 2011 attempted to fix election dates, but was later repealed in 2022.
3. No Court Can Question Validity Of An Act Of Parliament
   • Once enacted, courts must apply Acts regardless of fairness or morality.
   • Example: Cheney v Conn (1968) – income tax challenged as contrary to international law; court upheld Parliament’s authority.

Historical Development Of Parliamentary Supremacy

• Magna Carta 1215: early limit on monarch’s absolute power, foundation of parliamentary authority.
• Bill Of Rights 1689: confirmed supremacy of Parliament over monarchy.
• Acts Of Union 1707: created Parliament of Great Britain, reinforcing sovereignty.
• Parliament Acts 1911 and 1949: reduced power of House of Lords, making Commons dominant.

Application Of Parliamentary Supremacy

• Legislative Power:
  • Parliament can legislate on any subject, including constitutional issues.
  • Example: European Communities Act 1972 gave effect to EU law in the UK.
  • Example: European Union (Withdrawal) Act 2018 repealed it, restoring full sovereignty.
• Retrospective Legislation:
  • Parliament can pass laws applying to past events.
  • Example: War Damage Act 1965 (retrospective) prevented claims following Burmah Oil.
  • Raises fairness concerns but demonstrates supremacy.
• Parliament Over Courts:
  • Courts cannot strike down Acts but interpret them.
  • Pickin v British Railways Board (1974): courts confirmed they cannot challenge validity of Acts.

Challenges And Limitations To Parliamentary Supremacy

Although still the central principle, parliamentary supremacy has been qualified in practice:

1. European Union Membership (1973–2020)
   • EU law took precedence over UK law during membership.
   • Factortame (No. 2) (1991): courts suspended part of Merchant Shipping Act 1988 as inconsistent with EU law.
   • Showed that EU law could override parliamentary legislation.
   • After Brexit, sovereignty restored, but Factortame remains historic evidence of limits.
2. Human Rights Act 1998 (HRA)
   • Courts cannot strike down Acts, but can issue a Declaration of Incompatibility under s4 HRA.
   • Example: A v Secretary of State for the Home Department (2004) – detention of foreign terror suspects declared incompatible with Article 5 ECHR.
   • Parliament remained sovereign but political pressure led to amending the law.
3. Devolution
   • Scotland, Wales, and Northern Ireland now have devolved parliaments/assemblies with law-making powers.
   • In theory, Westminster could repeal devolution Acts, but politically this would be extremely difficult.
   • AXA General Insurance Ltd v Lord Advocate (2011): confirmed Scottish Parliament laws subject to judicial review but not easily overridden.
4. Rule Of Law Constraints
   • Although legally unlimited, Parliament is constrained by political and moral principles.
   • Example: Attempting to abolish judicial review or elections would provoke constitutional crisis.
5. International Law And Treaties
   • Parliament is not bound by international treaties unless incorporated into UK law.
   • But ignoring treaties may have political consequences.

Strengths Of Parliamentary Supremacy

• Ensures democratic legitimacy – elected representatives make ultimate decisions.
• Provides flexibility – Parliament can adapt law to new circumstances.
• Prevents deadlock – no higher authority blocking legislation.

Criticisms Of Parliamentary Supremacy

• Outdated In Modern Democracy: absolute sovereignty is inconsistent with checks and balances in modern constitutionalism.
• Conflict With Rule Of Law: unlimited power could allow unjust or oppressive laws.
• Weak Protection Of Rights: unlike countries with written constitutions (e.g., USA), UK Parliament could in theory pass laws undermining basic rights.
• Erosion Of Sovereignty: EU membership, Human Rights Act, and devolution all restrict practical supremacy.

Case Law Illustrating Parliamentary Supremacy

• Burmah Oil v Lord Advocate (1965): Parliament reversed court’s decision with retrospective Act.
• Factortame (1991): EU law supremacy over UK statute.
• Pickin v British Railways Board (1974): courts cannot question validity of Acts.
• A v Secretary of State for the Home Department (2004): Human Rights Act placed pressure on Parliament to amend unjust law.

Evaluation

• Dicey’s view of absolute supremacy remains the foundation of UK constitutional law.
• In practice, supremacy is politically and legally limited by EU (historically), Human Rights Act, devolution, and international law.
• Many scholars argue the UK has moved towards a “sovereignty under the rule of law” model rather than unlimited power.
• Despite limits, Parliament remains the ultimate law-making authority in the UK.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course