Parliamentary Supremacy
“The law is the law is the law.”
Parliamentary Sovereignty/Supremacy is a common law rule of constitution.
Parliament is supreme over monarchs, common law, treaties, etc.
Parliamentary Supremacy → Cluster of rules about ‘legislative competence’.
[Miller v Secretary of State for Exiting the European Union] Parliamentary Sovereignty is the most
fundamental rule of the UK Constitutional Law. There are no restraints on the Parliament. “There is no
superior form of law than primary legislation, save only where Parliament has itself made provision to
allow that to happen.”
Bill of Rights 1689: King is bound by Parliament.
Wade: Parliamentary Supremacy is the ‘ultimate political fact’.
Dicey: Parliament is dominant characteristic of our political system. It is the keystone of our constitution.
Orthodox/classic view.
Ian Loveland: “A statute, that is a piece of legislation produced by Parliament, is regarded as the highest
form of law within the British constitutional structure.”
Tomkins: “As a matter of English law, there is no source of law higher than a statute.”
House of Commons European Scrutiny Committee: “...a more exact term for the legal doctrine is
‘legislative supremacy’, whereby the power of the Queen-in-Parliament to legislate is subject to no legal
limitations, and the courts have no power to review the validity of Acts of Parliament.”
Political Constitutionalism:
Parliament → Power to make & legitimize law.
Has the benefit of an Elected House of Commons and Ministerial Accountability.
Adam Tomkins: British Constitution uses politics for constitutional purposes.
Judges → Elite background. Cannot understand socialistic legislation.
Legal Constitutionalism:
Accountability of Government by judges.
Parliament Acts 1911 & 1949 restrict House of Lords thus minority rights become fragile because
whatever House of Commons says becomes law as they can now bypass the House of Lords via
Parliament Acts 1911 & 1949.
Government/Majority Party → Concerned with votes.
Judges → Concerned with individual rights & liberty.
Parliamentary Supremacy undermines individual rights because it can pass ANY law.
Lord Steyn: Codified Constitution or Entrenched Bill of Rights would ensure accountability of
Parliament.
Dicey: Hierarchical Order of Power
1. Make or Unmake Any Law
‘Unlimited legislative competence’
General presumptions play a role, but they may be rebutted. For e.g. it is presumed that Parliament
will not legislate retrospectively but this was done in the War Crimes Act, 1991 or War Damages
Act, 1965 which overruled the House of Lords decision in [Burmah Oil Company v Lord
Advocate].
Leslie Stephens: “Kill all blue eyes babies.” → Legitimate law.
Ivor Jennings: Ban smoking in Paris → Legitimate law. Supremacy does not always reflect
political reality.
, No legal/constitutional backlash. Only political or social backlash is possible.
[ex parte Simmons O’Brian] Lord Hoffman: Parliament can make any law.
[Jackson v Her Majesty’s Attorney General] Lady Hale: No constitutional restraints, only political
ones.
[Cheney v Conn] Justice Ungoed-Thomas: International law is law of the land, but it is not statute,
but rather it yields to statute. Rebutted by existence of Human Rights Act, 1998.
Ivor Jennings: Political impediments restricting Parliament power. There is therefore a debate on
Validity v Enforceability.
[R v Secretary of State for the Home Department ex parte Simms] Lord Hoffmann: Obiter
Parliament can legislate against fundamental human rights.
Human Rights Act, 1998: s.3 → All law must be read and given effect so as to be compatible with
the European Convention on Human Rights (ECHR).
s.4 → Any law that cannot be read and given effect so as to be compatible with the ECHR must be
declared as incompatible by the Courts.
s.2(4) European Communities Act, 1972 (ECA) → All law incompatible with EU law will be
(impliedly) disapplied.
[Factortame] EU Law is supreme and case of a conflict with UK law, EU law will prevail.
Statute of Wesminster, 1931: Released the Parliaments of UK’s Dominions. s.4: No Act of
Westminster shall extend to the Dominions. Parliament could repeal s.4 or attempt to impliedly
repeal it. The Dominions, however, view the Act as binding and irreversible.
[British Coal Corporation v The King] Lord Sankey: The idea the UK Parliament can repeal s.4
is true in theory only, and has no connection with reality.
2. No One Can Question Validity of Act of Parliament
[British Railways Board v Pickins] Lord Reid: Courts apply Acts of Parliament, but do not
question them.
The Enrolled Bill Rule: If a Bill has passed through the House of Commons and House of Lords
and received royal assent, the courts will not enquire into what happened before or during the
legislative process.
[HS2 Alliance] Lords Neuberger & Mance: Courts can’t look into Parliamentary procedure. Lord
Neuberger: The UK does not have a constitution but it has constitutional instruments, such as
Magna Carta, Bill of Rights, ECA etc. Will of Parliament > Protecting peoples rights against the
executive. Lord Campbell: Cannot inquire how an Act of Parliament was passed.
Professor Tomkins: Courts should uphold Parliamentary Supremacy.
Lord Bingham: Parliamentary Supremacy, as a concept, is accepted and must be upheld by the
Courts.
[Jackson v Her Majesty’s Attorney General] Lord Steyn: Parliamentary Sovereignty is ‘a
construct of the common law’. There may be certain things which a Parliament cannot be allowed
to do, and the judges would have to decide to not obey Parliamentary Sovereignty in that case, for
e.g. Abolishing of Judicial Review, or Court system.
Hilaire Barnett: Parliamentary Sovereignty is widely accepted, though not necessarily morally
approved. It will remain the ultimate rule of our Constitution, as long as the judges accept it.
Eric Barendth: Source of Parliamentary Supremacy/Legislative Authority is common law.
However, common law is made by judges. Do the judges, then, give Parliament its supremacy?
Professor Bradley: Acts of Parliament disapply when Rule of Law is infringed.
Legislation owes its authority to the rule, not the other way around.
Professor Allen: Parliament depends on judicial interpretation.
Professor Craig: Parliamentary Supremacy is a common law construct.
“The law is the law is the law.”
Parliamentary Sovereignty/Supremacy is a common law rule of constitution.
Parliament is supreme over monarchs, common law, treaties, etc.
Parliamentary Supremacy → Cluster of rules about ‘legislative competence’.
[Miller v Secretary of State for Exiting the European Union] Parliamentary Sovereignty is the most
fundamental rule of the UK Constitutional Law. There are no restraints on the Parliament. “There is no
superior form of law than primary legislation, save only where Parliament has itself made provision to
allow that to happen.”
Bill of Rights 1689: King is bound by Parliament.
Wade: Parliamentary Supremacy is the ‘ultimate political fact’.
Dicey: Parliament is dominant characteristic of our political system. It is the keystone of our constitution.
Orthodox/classic view.
Ian Loveland: “A statute, that is a piece of legislation produced by Parliament, is regarded as the highest
form of law within the British constitutional structure.”
Tomkins: “As a matter of English law, there is no source of law higher than a statute.”
House of Commons European Scrutiny Committee: “...a more exact term for the legal doctrine is
‘legislative supremacy’, whereby the power of the Queen-in-Parliament to legislate is subject to no legal
limitations, and the courts have no power to review the validity of Acts of Parliament.”
Political Constitutionalism:
Parliament → Power to make & legitimize law.
Has the benefit of an Elected House of Commons and Ministerial Accountability.
Adam Tomkins: British Constitution uses politics for constitutional purposes.
Judges → Elite background. Cannot understand socialistic legislation.
Legal Constitutionalism:
Accountability of Government by judges.
Parliament Acts 1911 & 1949 restrict House of Lords thus minority rights become fragile because
whatever House of Commons says becomes law as they can now bypass the House of Lords via
Parliament Acts 1911 & 1949.
Government/Majority Party → Concerned with votes.
Judges → Concerned with individual rights & liberty.
Parliamentary Supremacy undermines individual rights because it can pass ANY law.
Lord Steyn: Codified Constitution or Entrenched Bill of Rights would ensure accountability of
Parliament.
Dicey: Hierarchical Order of Power
1. Make or Unmake Any Law
‘Unlimited legislative competence’
General presumptions play a role, but they may be rebutted. For e.g. it is presumed that Parliament
will not legislate retrospectively but this was done in the War Crimes Act, 1991 or War Damages
Act, 1965 which overruled the House of Lords decision in [Burmah Oil Company v Lord
Advocate].
Leslie Stephens: “Kill all blue eyes babies.” → Legitimate law.
Ivor Jennings: Ban smoking in Paris → Legitimate law. Supremacy does not always reflect
political reality.
, No legal/constitutional backlash. Only political or social backlash is possible.
[ex parte Simmons O’Brian] Lord Hoffman: Parliament can make any law.
[Jackson v Her Majesty’s Attorney General] Lady Hale: No constitutional restraints, only political
ones.
[Cheney v Conn] Justice Ungoed-Thomas: International law is law of the land, but it is not statute,
but rather it yields to statute. Rebutted by existence of Human Rights Act, 1998.
Ivor Jennings: Political impediments restricting Parliament power. There is therefore a debate on
Validity v Enforceability.
[R v Secretary of State for the Home Department ex parte Simms] Lord Hoffmann: Obiter
Parliament can legislate against fundamental human rights.
Human Rights Act, 1998: s.3 → All law must be read and given effect so as to be compatible with
the European Convention on Human Rights (ECHR).
s.4 → Any law that cannot be read and given effect so as to be compatible with the ECHR must be
declared as incompatible by the Courts.
s.2(4) European Communities Act, 1972 (ECA) → All law incompatible with EU law will be
(impliedly) disapplied.
[Factortame] EU Law is supreme and case of a conflict with UK law, EU law will prevail.
Statute of Wesminster, 1931: Released the Parliaments of UK’s Dominions. s.4: No Act of
Westminster shall extend to the Dominions. Parliament could repeal s.4 or attempt to impliedly
repeal it. The Dominions, however, view the Act as binding and irreversible.
[British Coal Corporation v The King] Lord Sankey: The idea the UK Parliament can repeal s.4
is true in theory only, and has no connection with reality.
2. No One Can Question Validity of Act of Parliament
[British Railways Board v Pickins] Lord Reid: Courts apply Acts of Parliament, but do not
question them.
The Enrolled Bill Rule: If a Bill has passed through the House of Commons and House of Lords
and received royal assent, the courts will not enquire into what happened before or during the
legislative process.
[HS2 Alliance] Lords Neuberger & Mance: Courts can’t look into Parliamentary procedure. Lord
Neuberger: The UK does not have a constitution but it has constitutional instruments, such as
Magna Carta, Bill of Rights, ECA etc. Will of Parliament > Protecting peoples rights against the
executive. Lord Campbell: Cannot inquire how an Act of Parliament was passed.
Professor Tomkins: Courts should uphold Parliamentary Supremacy.
Lord Bingham: Parliamentary Supremacy, as a concept, is accepted and must be upheld by the
Courts.
[Jackson v Her Majesty’s Attorney General] Lord Steyn: Parliamentary Sovereignty is ‘a
construct of the common law’. There may be certain things which a Parliament cannot be allowed
to do, and the judges would have to decide to not obey Parliamentary Sovereignty in that case, for
e.g. Abolishing of Judicial Review, or Court system.
Hilaire Barnett: Parliamentary Sovereignty is widely accepted, though not necessarily morally
approved. It will remain the ultimate rule of our Constitution, as long as the judges accept it.
Eric Barendth: Source of Parliamentary Supremacy/Legislative Authority is common law.
However, common law is made by judges. Do the judges, then, give Parliament its supremacy?
Professor Bradley: Acts of Parliament disapply when Rule of Law is infringed.
Legislation owes its authority to the rule, not the other way around.
Professor Allen: Parliament depends on judicial interpretation.
Professor Craig: Parliamentary Supremacy is a common law construct.
