Public | Constitutions
Principle: Parliamentary Sovereignty
Revision Note | Degree
Download
bitsoflaw.orgbits of law
Introduction
- Parliamentary Sovereignty is a core principles that has developed the meaning of UK constitution
- origins of the doctrine can be found in the Glorious Revolution and signing of the Bill of Rights 1689
- Act removed sovereignty from the King, assent of Parliament needed to execute legislation and raise taxes, guaranteed MPs free speech and that Parliament must meet on a regular basis
Diceyan Theory
- AV Dicey argued that Parliamentary Sovereignty is the dominant characteristic of our political institutions
.. the very keystone of the law of the constitution...
.. Parliament is the supreme power in the state and as such possesses unlimited legal power... The principle of Parliamentary Sovereignty means neither more nor less than this, namely that Parliament has, under the English Constitution, 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 a right to override or set aside the legislation of Parliament...
(Introduction to the Study of the Law of the Constitution (1915))
Key Elements
- Parliament means
..the Queen in Parliament...
, comprising of the House of Commons, House of Lords and Monarch - Parliament is competent to legislate on any matter whatsoever, including matters regarding the Constitution of Parliament itself
- Parliament is the sole and supreme law maker with the power to delegate responsibility and is not subject to the law making powers of external bodies
- No court can question the legislative competence of Parliament
- Parliament cannot be bound by prior legislative provisions of earlier Parliaments
Criticism
- rigidity of Dicey's doctrine has attracted criticism
- Lord Steyn:
..the classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law...
(Jackson v Attorney General [2005])
Legal and Political Sovereignty
- Dicey:
.. the Courts will take no notice of the will of the electors. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors...
- his doctrine does not require democratic principles but does provide legal certainty and fidelity to established authority
- TRS Allan:
.. the political notion of the ultimate sovereignty of the electorate must be distinguished from the legal doctrine of legislative supremacy...
(The Limits of Parliamentary Sovereignty [1985] Public Law 614) - Allan argues courts must enforce Acts but there should be exceptions: when undermines democracy, inconsistent with values of justice and fairness or is enacted by an unrepresentative Parliament
- Ronald Dworkin suggests law is not just determined by
pedigree
but should be considered with reference to underlying principles and if found incompatible should be rejected as a mistake (Taking Rights Seriously (1977)) - Allan places Dworkin's thinking in a constitutional context:
.. the fundamental rule that accords legal validity to Acts of Parliament is not itself the foundation of the legal order, beyond which the lawyer is forbidden to look...
- theoretical distinctions question the basis of Parliamentary Sovereignty, debate continue whether advancing finite legal certainty or democratic legitimacy has more important role in shaping doctrine