Introduction

Parliamentary Sovereignty is one of the core principles that have developed the meaning and definition of the UK constitution.

The origins of the doctrine can be found in the Stuart monarchs' attempts to reassert the divine right of kings. The belief of Charles I in the absolute power of a monarch was an important motivation for the outbreak of Civil War in 1642. The subsequent victory of Parliament in 1649 resulted in the abolition of the monarchy and established a Commonwealth until 1960.

Tensions developed, soon after the reinstatement of the monarchy, between James I, a devout Catholic and the Protestant Parliament. Parliamentarians began to plot the overthrow of James I and began negotiations with William of Orange to orchestrate a takeover by force. In 1688,a meeting, known as the Convention Parliament, took place in which agreements were made about the grounds on which William could take the Crown. These events are known as the Glorious Revolution.

The result was the passing of the Bill of Rights 1689 which removed sovereignty from the King alone and replaced it with sovereignty of the King in Parliament. The Act ensured that the monarch of the day must gain the assent of Parliament in order to execute legislation and raise taxes, it guaranteed MPs free speech and debate and that Parliament must meet on a regular basis. This can be seen as the first codified statement of Parliamentary Sovereignty.

Diceyan Theory

The most influential proponent of the theory is AV Dicey who argued that Parliamentary Sovereignty is the dominant characteristic of our political institutions and is .. 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)).

Legal and Political Sovereignty

Dicey argued that Parliamentary Sovereignty did not need to be justified as it was a legal fact but he recognised that the public may have political sovereignty. He stated .. 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.... Therefore, his doctrine does not require an adherence to democratic principles. This approach provides legal certainty and fidelity to established authority but does not uphold representative ideals.

TRS Allan highlighted .. 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 that courts must enforce Acts but that there should be exceptions. He argues exceptions could apply when an Act undermines democracy, is inconsistent with values of justice and fairness or is enacted by an unrepresentative Parliament.

Allan's more realistic approach, puts forward that legal sovereignty includes an element of political morality. The legal theorist 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, stating .. 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. The fundamental rule, however it should properly be characterised, derives its legal authority from the underlying moral or political theory of which it forms a part. The sterility and inconclusiveness of modern debate about the nature of sovereignty stems from Dicey's attempt to divorce legal doctrine from political principle. Legal questions which challenge the nature of our constitutional order can only be answered in terms of the political morality on which that order is based....

These theoretical distinctions question the basis of Parliamentary Sovereignty. Arguments continue about whether advancing finite legal certainty or democratic legitimacy has played a more important role in shaping the doctrine.