The Place of Parliamentary Supremacy in the Modern British Constitution

Dicey famously explained the classic account of the doctrine of the supremacy of Parliament in a pure and absolute sense. This is the traditional account of parliamentary supremacy. However, this notion of parliamentary supremacy has been challenged in the post war period especially with the setting up of the European Union. While some may argue that the doctrine of parliamentary supremacy is out of sync with the modern United Kingdom, it is still an important principle of the British constitution as observed by Lord Steyn in R (Jackson) v Attorney General. This essay discusses the place of doctrine of parliamentary supremacy in the modern British constitution by reference to contemporary challenges to the doctrine. Challenges to the doctrine of parliamentary sovereignty comes in the form of challenge to the orthodox reading of parliamentary sovereignty, which sees the law made by the parliament as completely outside the purview of judicial review whereas, the membership of the European Union and the attendant laws made in the UK have given some power to the courts to review parliamentary legislation and harmonise it with the EU law.

The doctrine of parliamentary sovereignty has been considered to be an essential part of the British constitution; so much so that it has been called as the “bedrock of the British Constitution.” The way in which Dicey described parliamentary supremacy was in the orthodox sense and it is in that sense that we see current challenges to parliamentary supremacy. Therefore, it is necessary to first understand how the orthodox sense of parliamentary supremacy means. In the traditional or orthodox sense, the doctrine of parliamentary supremacy relates to three concepts. The first concept of orthodox parliamentary supremacy is that the parliament is unrestricted in how it exercises its legislative powers, which means that the parliament can legislate on any matter. The second concept is that the parliament cannot bind its successor. This means that the parliament can repeal any law made earlier by its predecessor as the parliament is supreme and can make or unmake any law. The third concept central to the notion of parliamentary supremacy is that the parliamentary laws are outside the scope of judicial review. Thus, in the orthodox sense, the parliament is supreme and its laws are outside the scope of judicial review. In the orthodox sense, the parliament is said to be able to legislate on any matter, repeal earlier laws, and not be subjected to the scope of judicial review. Bingham has explained this as meaning that there is no legislative superior to the parliament and that the court cannot invalidate or supersede a statute enacted by the parliament. As the next part of this essay will demonstrate, these orthodox aspects of parliamentary supremacy became watered down when the UK became a part of the EU. However, the next part of the essay will also show that although the orthodox principles of parliamentary supremacy were challenged by UK’s membership of the EU, in no way does this mean that the doctrine itself became redundant because it is as relevant today as it was before.

The membership of the European Union is an important factor in the watering down of the doctrine of parliamentary supremacy. This has happened under legislations enacted by the parliament itself, allowing the courts in the UK to consider the harmonisation of its statutes with the European law. The European Communities Act 1972 was the first such law enacted by the parliament after UK became a member of the EU. Under Section 2(1) of the European Communities Act 1972, the courts in the UK are required to consider the compatibility between the statutory law with the European law; the provision lays down the ‘Directly effective EU law’ principle under which the courts in the UK are required to give effect to the laws of the EU; this

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1. Albert Venn Dicey, Introduction to the study of the law of the constitution (London: Macmillan 1915).
2. R (Jackson) v Attorney General [2005] UKHL 56, para. 102.
3. Hilaire Barnett, Constitutional & Administrative Law (Routledge 2014)129.
4. Jackson v Attorney General [2006] 1 AC 262, [1] per Lord Bingham.
5. Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568.
6. K Abbott, N Pendlebury and K Wardman, Business Law (Cengage 2007) 25.
7. Tom Bingham, The Rule of Law (Penguin 2010).

can at times mean that the laws made by the parliament are declared to be inconsistent with the EU law in which event, certain actions can be taken by the courts. R (Factortame Ltd) is an example of such action taken by the courts in the UK. In this case, the House of Lords was required to assess the compatibility between the EU law and a domestic statute; as there was some conflict between the two and the courts are required to give effect to the EU law, the House of Lords suspended the domestic legislation and referred the matter to the European Court of Justice. In R v Secretary of State for Employment, the court declared that there was incompatibility between the domestic statute and the EU law.

The European Communities Act 1972 is not the only legislation made by the parliament to allow the courts to declare incompatibility between domestic law and the EU law. The Human Rights Act 1998 also makes similar provisions in Section 4(2) under which the courts in the UK can declare incompatibility between parliamentary law and ECHR rights. Although, the courts do not take action on such incompatibility, past cases have shown that the parliament itself corrected the situation after a declaration under Section 4(2). An example can be seen in A v Secretary of the State. This case involved the consideration of certain provisions in an anti-terrorism law in light of ECHR rights. The impugned provisions allowed UK to indefinitely detain foreign terror suspects. The House of Lords held that the provision of indefinite detention is not compatible with the ECHR rights. This led the UK to shelve the provisions on indefinite detention from the law. Thus, the declaration of incompatibility had the effect of making the parliament restrict its own power to make laws in light of ECHR jurisprudence. In Attorney General’s Reference as well the House of Lords declared an incompatibility between the parliamentary law and the ECHR.

It may also be noted that even if the orthodox notions of parliamentary supremacy were challenged, it was the law made by the parliament itself that led to these challenges; consequently, it has been argued that the parliament can alter the challenges to its supremacy at any time that it wants by repealing the laws that waters down the orthodox notions of the doctrine of parliamentary supremacy. It may be noted that there is no written constitution in the UK and like other constitutional principles, the doctrine of parliamentary supremacy may be considered to be a hypothesis that can be changed or altered as noted by Lord Bridge in Factortame. Therefore, even if today parliament seems to have lost some of its supreme authority due to the impacts of the European law supremacy, there is nothing to say that the parliament cannot at some future time change that position and once again become supreme in the orthodox sense.

There is support for the doctrine of parliamentary supremacy on the basis of the principle of separation of powers and the function of the parliament in a democracy. For instance, Sir Philip Sales has argued that the parliament is the only body that is constituted to give effect to the will of the people while the courts do not serve that function; thus, to give too much judicial power to the judges to review the decisions of the legislature would go against the notions of democracy. It appears that the courts are aware of the importance of not overreaching its powers vis a vis the parliament because courts do restrain themselves from reviewing parliamentary law as held in Pickin v British Railways Board, where the court observed that judges

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8. Graeme Broadbent, Public Law Directions (Oxford University Press 2009) 7.
9. R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70.
10. R v Secretary of State for Employment, ex p Equal Opportunities Commission (1995) 1 AC 1.
11. A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.
12. Ibid.
13. Ibid.
14. Helen Fenwick, Civil Liberties and Human Rights (Routledge 2007).
15. Attorney General’s Reference (No. 4 of 2002) [2004] UKHL 56.
16. John Alder and Keith Syrett, Constitutional and Administrative Law (Palgrave Macmillan 2017) 163-165.
17. R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70.
18. Sir Philip Sales, ‘Judges and Legislature: Values into Law,’ (2012) 71(2) Cambridge Law Journal 287.

may not review whether the law made by the parliament is valid or not.

More recently, the doctrine of parliamentary supremacy in its orthodox sense was applied or supported by the Supreme Court in the case of Miller v Secretary of State. In this case, the Supreme Court declared that despite Article 50 of the Treaty of the European Union allowing the government to trigger withdrawal from the EU under Article 50, in the UK, such power could be exercised only after the parliament gave the approval to the government for acting under Article 50. Therefore, even if the EU law allows such power to be exercised by the government, in the UK the court refused to let the government to exercise the power unless authorised by the parliament. The decision of the Supreme Court does not align with the EU law and the decision can be seen to be a reinforcement of the principle of parliamentary principle by the court as noted by Ewing:

“Looking forward, however, the most eye-catching feature of the decision is its defence of parliamentary sovereignty. When all is stripped away, the core of both of the major questions the court was asked to address is the role of the Westminster Parliament in the modern British constitution, the reasoning if not the result paradoxically responding in terms that reflect the sentiment of the referendum result, at least in those parts of the country where a majority of those voting did so to leave the EU. In thus delivering a clear statement of constitutional orthodoxy and a clear re-assertion of parliamentary sovereignty as the fundamental principle of the constitution, Miller has swept aside recent uncertainties, equivocations and qualifications.”

One may argue now on the basis of the Miller decision that although there are challenges to the traditional notions of parliamentary supremacy, the principle of parliamentary supremacy is still relevant today. The decision of the Supreme Court clearly signifies that even though the European law may give the power to the executive, the principle of parliamentary supremacy would mean that the executive cannot exercise the power simply on the basis of Article 50. What can also be noted here is that the orthodoxy associated with the doctrine of parliamentary supremacy itself is also not redundant. The parliament may decide to repeal all legislations such as, the European Communities Act 1972 and Human Rights Act 1998. In that case, the role of the judicial review becomes once again limited or completely done away with as far as the parliamentary law is concerned.

To conclude, the doctrine of parliamentary supremacy has an orthodoxy that is related to three concepts that makes the parliament supreme law making power in the UK. To some extent, the doctrine was watered down when the UK became a part of the European Union. The membership of the EU came with the requirement of having to give direct effect to the law of the EU. This was done through the European Communities Act 1972. However, this does not mean that the doctrine of parliamentary supremacy became redundant as the Miller decision clearly demonstrates.

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Cases

A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.

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Pickin v British Railways Board [1974] AC 765.

Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5.

Ibid.

Keith Ewing, ‘Brexit and parliamentary sovereignty’ (2017) 80 (4) The Modern Law Review 711, 712.

Attorney General’s Reference (No. 4 of 2002) [2004] UKHL 56.

Jackson v Attorney General [2006] 1 AC 262.

Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5.

Pickin v British Railways Board [1974] AC 765.

R (Factortame Ltd) v Secretary of State for Transport [1991] 1 All ER 70.

R (Jackson) v Attorney General [2005] UKHL 56.

R v Secretary of State for Employment, ex p Equal Opportunities Commission (1995) 1 AC 1.

Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568.

Books

Abbott K, Pendlebury N and Wardman K, Business Law (Cengage 2007).

Alder J and Syrett K, Constitutional and Administrative Law (Palgrave Macmillan 2017).

Barnett H, Constitutional & Administrative Law (Routledge 2014).

Bingham T, The Rule of Law (Penguin 2010).

Broadbent G, Public Law Directions (Oxford University Press 2009).

Dicey AV, Introduction to the study of the law of the constitution (London: Macmillan 1915).

Fenwick H, Civil Liberties and Human Rights (Routledge 2007).

Journals

Ewing K, ‘Brexit and parliamentary sovereignty’ (2017) 80 (4) The Modern Law Review 711.

Sales P, ‘Judges and Legislature: Values into Law,’ (2012) 71(2) Cambridge Law Journal 287.