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Parliamentary sovereignty

Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change

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Separation of Powers, Parliamentary Sovereignty & the Rule of Law

This short guide explains what the concepts listed below mean and how they relate to our Human Rights Act:

• the constitution
• the separation of powers
• parliamentary sovereignty
• the rule of law

What is a constitution?

A constitution is the established principles and rules for how a state is run. The state is the legal name given to a territory or country. A constitution can be written down in one single law, contained in lots of different laws and documents, or established principles, or a combination; each state will have different constitutions. A constitution explains the rules on how the three parts of the state (usually called the branches of state) should work together.

This is important to make sure that no one part of the state such as the Government has unchecked power.  

“A constitution puts limits on the 3 parts of the state, balancing them all to work well, and sets out the rights of citizens which these branches need to respect.”

The three branches of the state are explained in detail later, but they are:

• parliament (the legislature)
• courts (judiciary) and
• government (executive).

The UK’s constitution

The UK does not have a single written constitution. This means that there is no one document that contains all of the rules and principles. Instead, the UK’s constitution is found through laws passed by Parliament and rules established through practices across hundreds of years, and principles established in court decisions (also known as the common law.)

The Human Rights Act is one of the laws that form part of the UK’s constitution. It exists to set out the rights of each person in the UK and the responsibilities of all the branches of state. It is a crucial part of the UK’s constitution because it sets out the rules by which the state should treat people; with dignity, respect and without discrimination.

Not having a single written constitution in the UK means that it can be harder to understand as there’s not one document that sets all the rules for the state. It also means that it can be easier to change the rules, which can be both a good or a bad thing depending on what these changes are and your opinion of what’s good and bad. Changes to the constitution have included:

• the removal of hereditary peers from the House of Lords (hereditary peers are members of the Lords based on their birth and used to be able to pass this on to children upon their death).
• introduction of the Human Rights Act
• devolution to Scotland, Wales, and Northern Ireland, which set up parliaments/assemblies and governments for each nation.
• creation of the Supreme Court, which is the highest court in the UK.

UCL, a university, have a good guide on the UK’s constitution which we have used to help explain it.

What is the separation of powers?

The separation of powers is an idea which is fundamental to how the UK works. It is about having specific and separate powers and functions between the three branches of state. This is supposed to help keep these three branches independent and accountable, by making sure no one part is too powerful.

The three branches of state are:

The legislature makes the laws.

In the UK, the legislature is Parliament, which is mainly the House of Commons (which MPs are elected to) and the House of Lords (which is made up of peers). Both the “houses” of parliament will debate proposals for laws, look at what changes should be made, and pass or reject laws.  When a law is passed, the Crown (currently the Queen) gives it royal assent to make it official. This is ceremonial, as the monarch does not refuse to make laws passed by Parliament official.

Parliament also carries out “scrutiny” work, which examines and challenges the work of the Government. This might be through debates, questions or committees.

We have devolution in the UK, so the legislature also includes the Scottish Parliament, the Welsh Parliament and the Northern Ireland Assembly. These parliaments and assemblies have been given law-making powers by the Houses of Parliament.

The executive is responsible for creating policy, putting proposals for laws to the legislature, and putting laws into effect. We call this the government.

In devolved nations (Scotland, Wales, and Northern Ireland) the executive includes the First Ministers and governments of the devolved nations.

The judiciary decides whether laws are being followed or if they have been made properly. This is done through a system of courts and tribunals.

In the UK, the judiciary is made up of the judges and officers of the courts of law. These are overseen by the Supreme Court,  the highest court in the UK . The courts in the UK can decide on conflicts between state bodies, between the state and individuals and between individuals. In the UK we have 3 legal systems; one each for England and Wales, Scotland, and Northern Ireland. The Supreme Court is the top court for all these systems.

Why is the idea of separation of powers important?

It is important that these branches of government are separate so that one branch of government doesn’t hold all (or too much) power. Each branch is therefore able to check on the other two branches to ensure that they are not overstepping their role. This means that there is a system of checks and balances. This should prevent each branch from abusing their power and helps ensure fairness in our system, making sure every part of the state has to play by the rules.

How does this work in the UK?

In the UK, we do not have a strict separation of powers. The branches of the state are closely linked. For example, the Prime Minister is both head of the executive (Government) and generally the leader of the majority party in the legislature (Parliament). This is because to form the government in the UK a political party has to win more local elections than other parties to have the most MPs. This means the leader of that party will be the head of the Government, the Prime Minister, and will usually have the most MPs who can vote to pass laws in parliament.

 There are still checks and balances in place to ensure that no branch of government has too much power. For example, the legislature can keep check on whether the executive is doing their job through things such as  Ministers questions, debates and investigations by committees . Prime Minister’s Questions is another example of this.

The judiciary (courts) are independent of both the executive and legislature. In the UK judges are not elected (unlike some other countries) so they are not accountable to voters. Judges are selected by the Judicial Appointments Commission, based on their merit; they are independent. People can start a legal case and ask a judge to look at whether the right laws and processes have been followed or broken. This includes bringing cases that are about the actions or decisions of the executive/government. This type of case is usually a judicial review. Judicial review is a tool to examine whether decisions by public bodies have been made in a lawful way, using the correct processes.

You can read our explainer on judicial review here

What is parliamentary sovereignty?

Parliamentary sovereignty is often said to be  ‘the defining principle of the British Constitution’

Parliamentary sovereignty means that  Parliament is the supreme legal authority in the UK . This means that:

• Parliament can create or get rid of any law
• the courts cannot overrule Parliament
• no Parliament can pass laws that future Parliaments cannot change. This is because every Parliament must be as powerful as the ones before and after it.

The Human Rights Act does not limit parliamentary sovereignty. Section 19 of the HRA requires the government to make a statement on whether any laws they are proposing to parliament are compatible with HRA rights; but this is advisory only. This means that the government can say that a proposed law is not compatible with human rights but parliament could still pass this law.

This is because parliament has ultimate authority; the Human Rights Act does not change that. As noted above judicial review means a person or body asks the courts to look at a law (or decision or action) to decide if the right laws and processes have been followed. This includes whether the law, action or decision supports or breaches the rights in the Human Rights Act. If a court decides the Human Rights Act has not been followed or if a law passed by parliament does not support the rights in the HRA then the courts can issue a Declaration of Incompatibility under section 4 of the HRA. This is the court saying that it believes that a particular law is not compatible with the rights in the Human Rights Act. This does not automatically change the law. Instead, it is the responsibility of Parliament to decide whether to change the law or not. This demonstrates how parliamentary sovereignty works.  This means that these declarations are not a strike down power, but a way to flag human rights incompatibility of UK law .

What is the rule of law?

The rule of law is a principle that means that every person and body, whether public or private and including the state, are subject to the law. This means that no one is above the law. The rule of law requires that laws should be:

• publicly made
• widely communicated
• enforced equally
• consistent with human rights
• not retrospective (meaning they don’t go back and change the rules for events that have already happened and then hold people/bodies to account for those events now, according to the new rules) and
• that any disputes about the law should be decided independently

The rule of law means that people can have certainty on what the law is, access that law, and seek accountability when the rules may not have been followed. This includes accountability where the executive/government may have overstepped the mark, and courts play an important role in helping people seek justice and ensure that the rule of law is applied.

The rule of law and our Human Rights Act

Our Human Rights Act is an essential part of the rule of law in the UK, it “brings rights home”, by taking 16 of the fundamental human rights in the European Convention on Human Rights and putting them into our law here in the UK. This means that individuals can challenge the government, including local government and public authorities and services without having to go to the Court in Strasbourg, France. You can read BIHR’s explainer on the ECHR  here .

The Human Rights Act puts legal duties on the state to respect, protect and fulfil our rights. This legal duty must be met at all times, especially during times of crisis. Our Human Rights Act helps to ensure accountability so that no one, including the Government, is above the law. It is our Human Rights Act which says that the state must not treat us in an inhuman or degrading way (Art 3); that our private and family life must be respected (Art 8), our liberty (Art 5) and our right to be free from discrimination (art 14). It is important to note that whilst the rights come from the Convention, they are now applied here at home, and it is the Human Rights Act (not the Convention) which creates the legal duties for people in the UK to hold government and public bodies to account.

The courts also have an essential role due to the Human Rights Act. They must interpret laws as being compatible with the Human Rights Act and if this cannot be done, they can make a declaration of incompatibility. However, as mentioned, this declaration does not change the law. Parliament is the one who decides whether to change laws to ensure that they are compatible with the European Convention on Human Rights.

Watch our video on the Rule of Law

Related topics

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Parliamentary Sovereignty Essay

Introduction.

Parliamentary sovereignty is the most crucial principle in Westminster’s constitution. As a result, Parliament is given the power to pass and veto any legislation in the UK. [1]  Upon Parliament’s approval in 1972, the European Communities Act of 1972 (ECA) was officially created. It was a voluntary decision to limit Parliament’s power. As a result of legislation like this, major political shifts have taken place both inside and outside the United Kingdom since the 1970s. Since these changes, the United Kingdom has grown less unified by the acts of its multinational state. With more devolved authorities, the United Kingdom has gone from being Europe’s most centralised state to one with more decentralised powers. [2]

Under EU conditions, traditional Westminster-style government may no longer be in existence. On January 1st, 1973, the UK officially joined the European Economic Community (EEC), which would later become the European Union. UK lawmakers passed the European Community 1972 statute, which lays out the steps we have taken to incorporate EU law into our own (the European Communities Act 1972). [3]  The UK’s majoritarian system risks becoming more polarised if it relies exclusively on precedent. The European Convention on Human Rights was adopted into UK law in 1998 and a UK Supreme Court was established in 2009.

All of these have contributed to expanding the judicial role from one that was previously limited to upholding legislation passed by Parliament. In 2016, a resounding majority of the electorate chose to “leave” the EU in a referendum, and the carefully watched Article 50 discussions and the departure deal signed under Theresa May’s Conservative administration all highlight how unclear the situation remains. [4]  Before, the United Kingdom was unable to accept its membership in Europe but not in the European Union.

Unlike many other democracies [5] , the United Kingdom is headed by an elected prime minister who is responsible for governing through parliament. As a long-standing tradition of parliamentary sovereignty means that, in the absence of a codified constitution, the UK is more than a parliamentary democracy where the executive branch is reliant on legislative backing. A lot of debate has taken place since Britain’s first application to join the European Community was made in 1961 and the European Community Act was passed in 1972. The Brexit campaign argued in favour of the UK’s exit from the European Union because of EU law’s restrictions. According to many pro-EU supporters [6] [7] , a break with Brussels is vital to restore both legislative and public order in Europe.

Legislative Sovereignty

Legislative sovereignty [8]  is often discussed with one eye on the past and the other on the present. Legislative sovereignty’s theoretical development and conceptualization are so constrained. In this essay, the concept of legislative sovereignty’s breadth and impact are vital for ongoing advancement in this field. The author needs a more sophisticated view of legislative sovereignty to explain why legislative sovereignty has become idolised. The paper makes use of Kantian, Friedrich Nietzschean, Ludwig von Misesian, and Derridean theories to criticise parliamentary sovereignty in various ways. Because of our preoccupation with out-of-date beliefs, we are unable to develop a sound theory of sovereignty in the current geopolitical and interstate setting.

As a result of Brexit, some believe that the United Kingdom’s traditional constitution has been reaffirmed. Other outcomes may still be possible, even if the traditional constitution is more fragile following Brexit. [9]  A “populist” democracy may be established in the UK that would give the executive branch of the country more authority. All of the concepts in the crisis lexicon allude to a point in time when the inherent contradictions and ambiguities of a situation must be resolved, including tipping points, catastrophic equilibrium, and failure. At all levels of the United Kingdom government, there is an overriding “Anglo-British fantasy” and ambiguity in terms of location. These issues arose as a source of fundamental constitutional instability under Theresa May’s administration. Despite May’s best efforts, a constitutional crisis may yet arise. Aside from that, she was in charge of major constitutional reform, even if it wasn’t a crisis at the time.

Legislative Supremacy

The Sovereignty of Parliament [10]  refers to the British Parliament’s supreme power to enact legislation. Legislation, amendment, and repeal of any law in the country are all possible because of its legal capabilities. English lawyers, according to De Lolme’s opinion, believe that Parliament can do anything but make men and women. When the Septennial Act was passed, extending the duration of the then-existing House of Commons from three to seven years, and so surpassing the term of mandate assigned to those MPs by the British public, this was an obvious example. Essentially, the concept of “parliamentary sovereignty” asserts that only Parliament has the authority to enact, alter, or repeal any piece of legislation in the UK.

English parliamentary sovereignty, according to Dicey [11] , has the following three characteristics: Any legislation can be altered by the legislative branch, regardless of whether it is a fundamental law or not, and no one has the authority to declare an act of parliament invalid, judicial or otherwise. The British parliament is in charge of enacting legislation, supervising the executive branch, and holding it accountable for its actions (including auditing its finances). It is also a symbol for the British people [12] . Floor talks and deliberations are essential in these situations. It’s also a place where government officials go to get hired. They are a critical link between the public and the executive branches of government.

The UK has “exclusive competence” in areas like the customs union, euro currency policy and common commercial policy for all EU members, not just the UK (Article 3, TFEU). Only the EU has the power to pass laws and other legally binding documents in these fields. As a member of the EU, the UK is entitled to govern itself in these areas, and the EU cannot intervene. Other EU “special competencies” allow the UK and other EU member states to coordinate their economic, social, and employment policies inside the Union. [ 1 3 ]  Article 24 of the Lisbon Treaty sets out the foundation for a united European foreign and security policy (CFSP), which is overseen by the EU’s High Representative for Foreign Affairs and Security Policy.

Limitations on Parliamentary Supremacy

Parliament’s legislative powers are unclear without a fully established constitution. Unlike the United States, Ireland or even the Indian constitution, which establishes distinct methods for amending principles of their constitutions, countries with a more flexible constitution, such as India, are more open to change. [14]  Restrictions on the future parliament’s power to enact laws or the adoption of laws that cannot be altered would be a denial of the parliament’s sovereignty. But this does not mean that the United Kingdom’s laws are entirely taken from them.

UK Parliamentary Sovereignty and Dicey Theory

Lawmakers of a state’s highest legislative body consider themselves to have supreme authority. According to Dicey’s view of legal sovereignty [15] , an individual can be forced to decide his or her own fate if the government deems it necessary. European Union competence definitions are defined by the European Court of Justice, but British EU membership is not. “The strength of free public opinion represented by the Commons functioned as a check on Parliament’s authority in the United Kingdom,” he asserts.

In the late nineteenth century, Dicey described it thusly: “the right to make or unmake any law whatever.” The European Parliament, on the other hand, is not allowed to change EU law. Following Britain’s membership of the EU in 1972, the European Communities Act recognised EU law as superior. EU membership does not mesh well with the legislative heritage of self-determination when future parliaments are likewise constrained by this agreement. This decision could not be overturned by subsequent parliaments, hence the UK must now recognise EU law as supreme, a decision made by the UK parliament in 1990 with the Factortame judgement. Parliamentary sovereignty is threatened by a greater awareness of judicial review. There is no or very little judicial review of legislation since the judiciary is seen as an undemocratic force. These essential liberties, however, have been construed rather differently in the past.

Former ECJ President Skouris [16]  believed that no area was exempt from interference with the market’s four liberties. For example, bottle deposit laws and limits on tobacco advertising hinder the free flow of goods, whereas policies like abortion prohibition impede the free provision of services. Parliamentary sovereignty has received significant attention in the Brexit environment. A significant component of Brexit [17]  that has been missed is that the UK is a common law jurisdiction. Because of the common-law system’s reliance on precedent, Anglo-American legal precedents could be deemed “de facto” principal reservoirs of British law.

Parliamentary sovereignty, often known as “parliamentary supremacy” or “legislative supremacy,” refers to the power provided by the constitution to the legislative branch over the executive and judicial departments. An important foundation for a better understanding of parliamentary sovereignty and its primary characteristics was laid out by Albert Venn Dicey in his Introduction to the Study of the Law of the Constitution (1885). [18]

Conclusions

Constitutionalized case law and EU objectives have contributed to a politicisation of free movement in Britain. But this common-law legacy of the UK plainly shows that case law is relevant to EU policies as well. As the EU expands, it is probable that European policies may have to adapt to accommodate greater variety.

Asthana A, ‘Unit-9 Parliamentary Supremacy and Rule of Law in UK’ <http://www.egyankosh.ac.in/bitstream/123456789/71810/1/Unit-9.pdf> accessed 22 January 2022

De Campos-Rudinsky J, ‘James Bryce and Parliamentary Sovereignty’ [2021] Modern Intellectual History <https://www.cambridge.org/core/journals/modern-intellectual-history/article/james-bryce-and-parliamentary-sovereignty/A9129ED482C3CF7C9BED814E9EB99C77> accessed 22 January 2022

Johnson MR, ‘Legislative Sovereignty: Moving from Jurisprudence towards Metaphysics’ (2020) 11 Jurisprudence 360 <https://www.tandfonline.com/doi/abs/10.1080/20403313.2020.1744990> accessed 22 January 2022

Loughlin M, ‘AV Dicey and the Making of Common Law Constitutionalism’ [2021] Oxford Journal of Legal Studies <https://academic.oup.com/ojls/advance-article-abstract/doi/10.1093/ojls/gqab021/6387558> accessed 22 January 2022

McConalogue J, ‘Making Sense of Sovereignty, Parliamentary Sovereignty and the “Rule of the Recognised Helm”’,  The British Constitution Resettled (2020) <https://link.springer.com/chapter/10.1007/978-3-030-25290-8_2> accessed 22 January 2022 , ‘The Impact of EU Membership on UK Government and Parliament’s Sovereignty’,  The British Constitution Resettled  (Springer International Publishing 2020)

Orakhelashvili A, ‘Parliamentary Sovereignty before and beyond Brexit’ (2021) 15 ICL Journal 435 <https://www.degruyter.com/document/doi/10.1515/icl-2021-0024/html> accessed 22 January 2022

Qvortrup M and Trueblood L, ‘Schmitt, Dicey, and the Power and Limits of Referendums in the United Kingdom’ [2021] Legal Studies 1 <https://www.cambridge.org/core/journals/legal-studies/article/schmitt-dicey-and-the-power-and-limits-of-referendums-in-the-united-kingdom/B62731F03A3D7E834F05502EAA64621F> accessed 22 January 2022

Schmidt SK, ‘No Match Made in Heaven. Parliamentary Sovereignty, EU over-Constitutionalization and Brexit’ (2020) 27 Journal of European Public Policy 779 <https://www.tandfonline.com/doi/abs/10.1080/13501763.2020.1733635> accessed 22 January 2022

White S, ‘Brexit and the Future of the UK Constitution’ [2021] International Political Science Review <https://journals.sagepub.com/doi/abs/10.1177/0192512121995133> accessed 22 January 2022

White SG, ‘The Referendum in the UK’s Constitution: From Parliamentary to Popular Sovereignty?’ [2020] Parliamentary Affairs <https://academic.oup.com/pa/advance-article-abstract/doi/10.1093/pa/gsaa062/6010321> accessed 22 January 2022

Wincott D, Davies G and Wager A, ‘Crisis, What Crisis? Conceptualizing Crisis, UK Pluri-Constitutionalism and Brexit Politics’ (2021) 55 Regional Studies 1528 <https://www.taylorfrancis.com/chapters/edit/10.4324/9781003148944-16/populism-uk-sovereignty-rule-law-brexit-john-mceldowney> accessed 22 January 2022

Wincott D, Murray CRG and Davies G, ‘The Anglo-British Imaginary and the Rebuilding of the UK’s Territorial Constitution after Brexit: Unitary State or Union State?’ [2021] Territory, Politics, Governance <https://www.tandfonline.com/doi/abs/10.1080/21622671.2021.1921613> accessed 22 January 2022

[1] Daniel Wincott, Gregory Davies and Alan Wager, ‘Crisis, What Crisis? Conceptualizing Crisis, UK Pluri-Constitutionalism and Brexit Politics’ (2021) 55 Regional Studies 1528 <https://www.taylorfrancis.com/chapters/edit/10.4324/9781003148944-16/populism-uk-sovereignty-rule-law-brexit-john-mceldowney> accessed 22 January 2022.

[2] Daniel Wincott, CRG Murray and Gregory Davies, ‘The Anglo-British Imaginary and the Rebuilding of the UK’s Territorial Constitution after Brexit: Unitary State or Union State?’ [2021] Territory, Politics, Governance <https://www.tandfonline.com/doi/abs/10.1080/21622671.2021.1921613> accessed 22 January 2022.

[3] Stuart White, ‘Brexit and the Future of the UK Constitution’ [2021] International Political Science Review <https://journals.sagepub.com/doi/abs/10.1177/0192512121995133> accessed 22 January 2022.

[4] Stuart White, ‘Brexit and the Future of the UK Constitution’ [2021] International Political Science Review.

[5] Stuart G White, ‘The Referendum in the UK’s Constitution: From Parliamentary to Popular Sovereignty?’ [2020] Parliamentary Affairs <https://academic.oup.com/pa/advance-article-abstract/doi/10.1093/pa/gsaa062/6010321> accessed 22 January 2022.

[6] Alexander Orakhelashvili, ‘Parliamentary Sovereignty before and beyond Brexit’ (2021) 15 ICL Journal 435 <https://www.degruyter.com/document/doi/10.1515/icl-2021-0024/html> accessed 22 January 2022.

[7] Jim McConalogue, ‘The Impact of EU Membership on UK Government and Parliament’s Sovereignty’,  The British Constitution Resettled  (Springer International Publishing 2020).

[8] Jim McConalogue, ‘Making Sense of Sovereignty, Parliamentary Sovereignty and the “Rule of the Recognised Helm”’,  The British Constitution Resettled  (2020) <https://link.springer.com/chapter/10.1007/978-3-030-25290-8_2> accessed 22 January 2022.

[9] Susanne K Schmidt, ‘No Match Made in Heaven. Parliamentary Sovereignty, EU over-Constitutionalization and Brexit’ (2020) 27 Journal of European Public Policy 779 <https://www.tandfonline.com/doi/abs/10.1080/13501763.2020.1733635> accessed 22 January 2022.

[10] Marc R Johnson, ‘Legislative Sovereignty: Moving from Jurisprudence towards Metaphysics’ (2020) 11 Jurisprudence 360 <https://www.tandfonline.com/doi/abs/10.1080/20403313.2020.1744990> accessed 22 January 2022.

[11] Matt Qvortrup and Leah Trueblood, ‘Schmitt, Dicey, and the Power and Limits of Referendums in the United Kingdom’ [2021] Legal Studies 1 <https://www.cambridge.org/core/journals/legal-studies/article/schmitt-dicey-and-the-power-and-limits-of-referendums-in-the-united-kingdom/B62731F03A3D7E834F05502EAA64621F> accessed 22 January 2022.

[12] White, ‘The Referendum in the UK’s Constitution: From Parliamentary to Popular Sovereignty?’ (n 5).

[13] Jordan De Campos-Rudinsky, ‘James Bryce and Parliamentary Sovereignty’ [2021] Modern Intellectual History <https://www.cambridge.org/core/journals/modern-intellectual-history/article/james-bryce-and-parliamentary-sovereignty/A9129ED482C3CF7C9BED814E9EB99C77> accessed 22 January 2022.

[14] A Asthana, ‘Unit-9 Parliamentary Supremacy and Rule of Law in UK’ <http://www.egyankosh.ac.in/bitstream/123456789/71810/1/Unit-9.pdf> accessed 22 January 2022.

[15] Wincott, Davies and Wager (n 1).

[16] Martin Loughlin, ‘AV Dicey and the Making of Common Law Constitutionalism’ [2021] Oxford Journal of Legal Studies <https://academic.oup.com/ojls/advance-article-abstract/doi/10.1093/ojls/gqab021/6387558> accessed 22 January 2022.

[17] Jim McConalogue, ‘The Impact of EU Membership on UK Government and Parliament’s Sovereignty’,  The British Constitution Resettled  (2020) <https://link.springer.com/chapter/10.1007/978-3-030-25290-8_1> accessed 22 January 2022.

[18] Schmidt (n 9).

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