We know that the United Kingdom has a monarch and a Prime Minister, but who's ultimately in charge? Who holds the reins of power and where are final decisions made? In the UK, Parliament is the ultimate source of authority - a reality that has been shaped by centuries of debate, conflict and compromise. Let's take a look at how parliament became sovereign.
Parliamentary Sovereignty meaning
Parliamentary sovereignty is a crucial component of UK constitutional law and can be defined as follows:
Parliamentary sovereignty
Parliamentary sovereignty is a constitutional principle that designates parliament as the supreme legal authority in the United Kingdom
There are three main principles of parliamentary sovereignty in the UK:
Parliament can create or dispose of any and all laws
Acts of Parliament cannot be overridden by any other branch of government
Parliament cannot be bound by its predecessors or previous precedents and likewise, cannot bind its successor.
A Constitution is a body of laws and principles that outline the functions, structures and duties of a state's government, such as that of its legislature, judiciary, and executive, as well as the fundamental rights of its citizens.
The constitution of the United Kingdom is not codified into a single document but consists of multiple documents including:
- Acts of Parliament
- Judicial/court judgements
- Historical and modern conventions and treaties
The doctrine of Parliamentary Sovereignty
The modern-day parliament originated from the Royal Council, which the monarch would rely upon for advice before passing legislation. During the 13th century, the Royal Council became divided into two branches: the House of Lords, consisting of barons, earls and bishops and the House of Commons, consisting of two knights from each shire and two burgesses from each borough.
The monarch began by consulting both houses before passing the legislation. During the 15th century, Henry VI frequently allowed the houses to write up bills which he would revise and sign into law, if he approved, by giving royal assent.
The Coronation Oath Act of 1688 was a significant factor on the road to parliamentary sovereignty, as it bound the monarch's ability to rule based on laws and legislation agreed upon in parliament, whilst formally embracing the parliament as a constitutional framework. This was followed by the Bill of Rights and the Claims of rights Acts 1689. The former defined the newly granted powers of the English parliament and the now limited powers of the monarch, regarding England and Wales. The latter had a similar function for Scotland, whilst also formally expanding the English sovereign's rule in the country. That same year, the parliament used its new powers to establish the very first civil list. The civil list contained the names of people who were to be paid by the government, including the monarch, and outlined how much these individuals would need to perform their duties. The monarch's income was dependent on this list until 2011 when it was replaced by the new funding system called the Sovereign Grant.
Palace of Westminster, Houses of Parliament, London, 2007, Diliff, CC-BY-SA-2.5, Wikimedia Commons
Today, parliamentary legislation still requires royal assent in order to formally become law. However, this is now viewed as more of a formality. The English Monarch Queen Elizabeth II currently holds no law-making powers. Whilst she remains constitutionally authorised to veto laws, she is only expected to exercise this authority during an extreme crisis.
Queen Anne was the last monarch to refuse a bill's assent in 1708! She withheld royal assent for the proposed Scottish Militia bill due to fears that the militia would be unfaithful to the Crown.
Parliamentary Sovereignty Example in the UK
This section highlights an example of how parliamentary sovereignty was exercised through the passing of the War Damage Act of 1965 which retroactively exempted the government from having to compensate an oil company.
War Damage Act 1965
In 1942, the Japanese army invaded Burma during the Second World War. To prevent oil fields owned by a British company called the Burmah Oil Company from falling into the hands of the Japanese army, the British government ordered its forces to destroy them. This resulted in massive losses for the company, which then filed a suit against the UK government. This case came to be called Burmah Oil Ltd v Lord Advocate (The Lord advocate being the representative of the UK government and the Crown).
The case was held in the Outer House of the Supreme Civil Court of Scotland, in which the judge ruled in favour of Burmah Oil. The UK government appealed the case to the Senior Inner House of the Scottish Supreme Court, which voted unanimously to reverse the decision. Burmah Oil then appealed this decision in the House of Lords. By majority, the House of Lords decided that the damage was not illegal, as it fell into the realm of property requisition. However, this also meant the company should be compensated by public funds (synonymous with government funds), as the oil fields had been destroyed for the public good.
Chamber of the House of Lords, Palace of Westminster, London, 2013, UK Parliament, CC-BY-3.0, Wikimedia Commons
The UK Parliament reacted by passing the War Damage Act 1965. This was a retroactive act, meaning it was created after the dispute had taken place. The act abolished the company's rights to compensation by stating that the Crown (The legal head of the UK government) would be exempt from liability of damages if the acts of destruction had been
lawfully done by, or on the authority of, the Crown during, or in contemplation of the outbreak of, a war in which the Sovereign was, or is, engaged.1
Parliamentary sovereignty allowed the legislative branch of the government to retroactively change the outcome of the case in its favour. This turn of events demonstrated the extent of the parliament's legal supremacy.
Parliamentary Sovereignty limitations
Some states can somewhat limit their parliament's power through the doctrine of the separation of powers. This means that their executive, judicial and legislative branches of government are kept separate, so they can check each other's power and prevent tyranny. The branches of power in the UK are not strictly separate, with members of parliament participating in executive (government) and legislative (parliament) structures simultaneously. This is due to the First-Past-the-Post Voting system used in the UK to elect and form the government. In order for a party to win, it must have more parliamentary seats than the other parties.
First-Past-the-Post is a plurality electoral system used in the United Kingdom to elect members of parliament, whereby the candidate that receives the most votes (a plurality rather than a majority) wins the seat in parliament. By plurality, we mean when a candidate does not have the majority vote (more than 50% of the total vote) but has received the most votes out of all candidates.
Legal Loopholes
Since there is no clear separation of powers, it can be argued that the UK parliament has no limits on its legislative sovereignty. However, it is important to understand that parliament does not have political sovereignty. This means that although parliament can pass any form of legislation (even if the bill is unpopular or deemed unjust), civil servants can be depended on to prevent it from being enforced through a series of loopholes such as ambiguous wording in the bill.
Similarly, the judiciary can set future legal precedents through these loopholes by interpreting the bill carefully on a case-by-case basis. The parliament is sovereign in that it can pass any laws regardless of moral code, but it cannot ensure the enforcement of laws in the exact way in which they are intended.
In some sense, the separation of powers between the judicial and legislative branches was created in 1875 through the establishment of the High Court, with the House of Lords having previously been the highest court. There are also some mechanisms by which the legislature as a whole can put the brakes on the executive's decisions.
The legislature has the ability to call for a vote of no confidence. Despite this being an imperfect separation of powers between the executive and legislative branches, it must be noted that the branches of government are not entirely merged, and do have mechanisms that allow them to 'check' one another.
Human Rights Act 1998
The Human Rights Act 1998 gives the UK judiciary power to make declarations of incompatibility when they believe an act passed by parliament infringes upon the guaranteed rights of people outlined in the Human Rights Act. However, these declarations do not have legal influence, rather they act as an alarm bell to flag human rights transgressions within bills to the parliament in the hopes that they would make amends. However, parliamentary sovereignty means that if the parliament chooses, they could also solve the issue of legal infringements by repealing the Humans rights Act altogether.
Devolution
The devolution of power to the Scottish, Welsh and Northern Irish Parliaments gave the three devolved parliaments authority to pass primary legislation in regard to all devolved areas. Nonetheless, this authority can be suspended by the UK parliament unilaterally, if they see fit. Furthermore, the UK parliament still has legal superiority and can draft legislation in all areas within the three countries.
For more information check out or article about Devolution.
European Union
The UK's membership of the European Union may have also raised questions over the extent of parliamentary sovereignty, as the European Court of Justice has legal influence on member states. This was part of the 2016 Brexit campaign's grievances pertaining to EU membership, as some UK citizens viewed the interference of outside institutions as unacceptable and an infringement on UK sovereignty.
Exterior of the European Court of Justice, Luxembourg 2015, Katarina_Dzurekova, CC-BY-2.0, Wikimedia Commons
In reality, since the UK's membership of the EU was a result of the parliamentary European Communities Act 1972, the parliament could lawfully repeal the act at any time and regain its full influence. After the 2016 EU referendum, the parliament passed the European Union Act 2017 which legally notified the European Union of the UK's intended departure from the union.
Parliamentary Sovereignty - Key takeaways
- Parliamentary sovereignty is a constitutional principle that designates parliament as the supreme legal authority in the United Kingdom
- There are three main principles of parliamentary sovereignty in the UK; parliament can create or dispose of any and all law, acts of parliament cannot be overridden by any other branch of government and the parliament cannot be bound by its predecessors or previous precedents and cannot bind its successors
- Legislature drafted by the parliament still requires royal assent in order to formally become law; however, this is now viewed as more of a formality
- The lack of clear separation of powers in the UK means that there is no formal limitation on UK parliamentary sovereignty
- Although parliamentary sovereignty may appear ambiguous at times, the UK parliament fundamentally enjoys exclusive legal supremacy.
References
- Legislation.gov.uk. 2022. War Damage Act 1965. [online] [Accessed 27 July 2022].
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