Sovereignty

It is said that parliament is sovereign in the UK. Sovereignty, in this sense, refers to supreme legal and political authority. This principle is not provided for by legislation but is a longstanding and fundamental principle of the Constitution.

Many countries that adopted written constitutions in modern times provide that the people are fully sovereign and create the constitution with institutions of government conferred with legal executives and judicial powers. Because the UK constitution has been so stable and is not tied to a particular written document, the starting point is the stark legal reality that parliamentary sovereignty remains. The judges accept the decisions and do not purport to invalidate acts of parliament.

In practice, of course, the theoretical sovereignty of parliament to enact any law it wishes is constrained. However, even in pre-democratic times, it is politically understood (not necessarily legally) that extremely unjust and arbitrary laws are forbidden in modern times, given democratic control, and public protests will act as a significant practical barrier under the theoretical and limited powers of parliament.

Once the bill has completed its passage through parliament, either through normal procedures or by bypassing the powers of the House of Lords under the Parliament Acts and received royal assent, it becomes valid. It may not be questioned by the court. The courts may determine if it is, in fact, an act of parliament once it’s received royal assent, but it must not be questioned.

The introduction of the Human Rights Act has been done in such a way as to respect parliamentary supremacy. The Court of Judges can declare acts of parliament to be inconsistent with the European Convention on Human Rights. The act does not invalidate the parliament’s laws, but the parliament is likely, in most cases, to take remedial steps.

European law asserts the principle of the supremacy of community law over domestic law in respect of the areas covered by community law. Local courts are obliged to uphold the supremacy of community law, and in this context, an act of parliament may be found inconsistent with community law by the UK court.

Parliament established supremacy over the Crown under the Bill of Rights. Prerogative powers of the Crown continued before being severely curtailed or abolished by acts of parliament. It is well established that the Crown may not claim new prerogative powers.

Examples of parliament’s theoretically unlimited law-making power can be seen from time to time. In times of emergency, such as during the First and Second World Wars, the parliamentary terms were extended beyond the normal periods for 8 years (1910-1918) and 10 years (1935-1945), respectively.

Parliament has legislated in relation to the succession to the Crown, as under the Act of Settlement 1700 and the His Majesty’s Declaration of Abdication Act 1936. Parliament may reorganize and reestablish itself, as happened with the union with Scotland and Ireland in 1706 and 1800, respectively. Parliament may limit its own powers, as occurred in 1911 with the curtailment of the House of Lords and in 1949.

Parliament may enact legislation retrospectively, and it may specifically reverse the effect of a court decision.

There is a distinction between the legal principle of parliament’s supremacy and the practical effectiveness of laws. Although parliament could in theory enact legislation revoking the independence of former colonies, in practice, both international law and any sect of legal international laws prevent this.

Internally, the sovereignty of parliament is practically limited by popular resistance in modern terms. The government is an institution of the state that serves the people and is accountable to them through elections.

In strict legal terms, no parliament is bound by the decisions of its predecessors, nor can it bind its successors. Later Acts may repeal earlier laws. Moreover, later Acts may apply to repeal earlier laws where they are inconsistent with them. This may occasionally happen by oversight.

Parliament has granted independence to various dominions in the 19th and early 20th century, including Canada, Australia, New Zealand, South Africa, and Southern Ireland.

As to the imperial conference of 19, the Statute of Westminster declared that no act of parliament could extend to a dominion unless the dominion requested or consented to it. In theory, parliament could revoke the statutes, but in practical terms and in terms of the constitutional rights in those countries, this would be wholly ineffective.

The courts have held from time to time that legislation regarding the fundamental organization of the United Kingdom may face limits on the powers of parliament. The Act of Union of Scotland Act pledges to preserve certain institutions, such as the court in Scottish Private Law and the Church of Scotland’s law, because the parliament was reconstituted by the Union of Scotland Act.

It is arguable that the courts may recognize the basic constitutional structure under that act may not be repealed by parliaments. In contrast, it tends to evoke general provisions in the Union of Scotland Act, including Article XVIII, providing that laws may not be altered in relation to private rights in Scotland. These matters are well held not to be reviewable by courts but to be political matters.

Moving this up, the Colonial Laws Validity Act 1865 recognized the convention that laws passed in colonies that are contradictory to the laws of the United Kingdom would not be invalidated under UK law. It provided that colonial legislators could amend their own constitution legislative procedures in accordance with laws. However, the courts have held that subordinate legislators must comply with the terms of the UK act in making such amendments.

The Colonial Laws Validity Act was not applied to laws made by dominions after 1931. No law by a dominion must be void under English law or any present or future acts of the UK parliament. UK Acts might only apply to a dominion parliament with the consent of that parliament, where the former dominion legislators, under the terms of their own laws, may be limited by their own constitutional acts which may be constitutional by the UK Act of Parliament. They do not enjoy the same unlimited legislative power that the UK parliament does.

Prior to the Bill of Rights, the courts occasionally held that Acts of parliament were invalid if they were contrary to common rights and reason or impossible to be performed. Other formulations required the Act to be contrary to the law of guard or natural justice. However, the Bill of Rights is accepted to have removed the remaining power on the parts of courts to invalidate Acts of parliament.

The European Communities Act 1972 provides that community law has direct application and effect in the United Kingdom. The legislation does not expressly state that community law is supreme. However, the European courts of justice have consistently asserted the supremacy of community law.

The courts assert that where EU legislation is inconsistent with domestic legislation, the domestic courts are obliged to invalidate it.

The UK courts have maintained the view that these premises of community law arise from the continued ascent and descent of the parliament. If parliament chose to repeal the acts or legislate contrary to European Union Law, the UK courts are likely to uphold the will of parliament.

UK courts can effectively interpret the 1972 European Communities Act as intending to overrule other inconsistent legislation.