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4. Prepare to share your views in a group discussion next lesson... Is parliament still sovereign in the UK today? Should it be?

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4. Prepare to share your views in a group discussion next lesson... Is parliament still sovereign in the UK today? Should it be?

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The Leave campaign has argued that membership of the EU limits the sovereignty of Parliament. But is this true? And what does it mean to be "sovereign"?

In advance of June's referendum on the UK's membership of the European Union, both sides have set out several different types of argument supporting their respective positions. On the Remain side, the economic argument (i.e. that we would be poorer as a nation and worse off individually should the UK leave) has been most prominent. On the Leave side, the debate has centred primarily around immigration. Do we have control of our borders? Is immigration-driven population growth unsustainable? Does immigration have an adverse impact upon social cohesion?

Underpinning both sides of the debate however is the underlying issue of sovereignty. Put simply, has membership of the European Union reduced or limited the ability of the United Kingdom to determine its own laws? Or does membership of the European Union mean that we are subjected to laws passed by EU institutions imposed upon us without our consent?

To answer this question, it is important to first ask what "sovereignty" actually means. To be considered sovereign typically requires that a governing body (in this case, Parliament) has the full right and power to govern itself without any interference from outside sources and bodies. Having defined what sovereignty means in conceptual terms we can then ask ourselves: is the UK Parliament sovereign?

The doctrine of Parliamentary sovereignty within the UK is long standing, having its origins in the 17th Century following the Glorious Revolution which commenced the transfer of power from the Monarch to the elected Parliament. Parliamentary sovereignty has often been characterised by constitutional scholars as comprising the following principles: (1) that Parliament can make whatever laws on whatever topic it so wishes, (2) that Parliament has no power to bind a future Parliament and (3) that a valid act of Parliament cannot be challenged by the courts. By fulfilling each of these criteria, it is clear that such a body would have the full right and power to govern itself without any interference and should thus be considered to be sovereign.

One might however argue that each of these principles have, to varying degrees, been compromised by the UK's membership of the EU. That Parliament may not make laws in certain areas where competence over a particular subject matter has been assumed by the EU. That this delegation of legislative power to the EU's institutions as enacted by previous parliaments has inextricably bound present and future parliaments. That, in any case, our laws are regularly challenged and struck down by the EU's courts.

But are any of these contentions true and, if so, does this make Parliament any less "sovereign"?

Parliament may make any law it so wishes

The UK has exercised its sovereign right to enact whatever law it so wishes.

The UK's membership of the EU actually derives from an Act of Parliament (the European Communities Act 1972) under which the UK agreed that in certain areas, primarily those areas required in order to give effect to the Common (now Single) Market, we would permit EU laws to be incorporated (either directly in the case of Regulations or indirectly via implementing Acts of Parliament in the case of Directives) into the UK law.

Laws such as the European Communities Act which effectively delegate legislative responsibility over particular matters to another body are not particularly uncommon. In fact, Parliament regularly delegates its authority to make laws to bodies such as local councils and devolved assemblies such as those in Wales and Northern Ireland. In some cases, a considerable amount of legislative power can be delegated, including in some instances the right to amend the prevailing rate of taxation, as is currently being contemplated in Scotland.

In the case of the EU, the situation is clear. The European Union Act (2011) states that "Directly applicable or directly effective EU law... falls to be recognised and available in law in the United Kingdom only by virtue of [the European Communities Act]." In effect, EU law is only incorporated into UK law by virtue of the laws passed by a sovereign Parliament permitting it to be so.

In each case, the UK has exercised its sovereign right to enact whatever law it so wishes.

Can an earlier decision of Parliament bind a future Parliament?

In the past 40 years there has been considerable evolution in the UK's relationship with the EU. There have been treaties executed among Member States which have increased the size and scope of the Single Market, which have created new and augmented existing EU institutions and which have increased the number of Member States. There has been a steady stream of implementing legislation which has implemented new or amended existing EU Directives. In some instances, these implementing acts have "gold plated" the requirements as set out in the relevant Directive, effectively going further or imposing stricter requirements within the UK in a particular area than may actually required by EU law or which may otherwise have been implemented across other Member States.

Again, each parliament has asserted its sovereign right to amend, supplement or remove existing laws in order to give effect to developing EU law for the purposes of fulfilling the UK's consistent and long-standing policy objective of ensuring access to the single market. In the face of such radical evolution, there is simply no argument to be made that any contemporary Parliament has felt bound by the actions of their predecessors nor that they actually were bound by their predecessors as a matter of constitutional law.

A valid Act of Parliament cannot be challenged by the Courts

It is often argued that validly enacted laws of Parliament may be challenged and rendered unenforceable by the decisions of the European Court of Justice (the ECJ). However, is this indeed the case? To answer this, we first need to establish what the ECJ actually does. In simple terms, the ECJ has judicial competence over matters pertaining to EU law. This role is important as it creates a forum among all Member States whereby disputes relating to a point of EU law can be resolved such that the Member States may be confident in the consistent interpretation and application of EU law across the single market.

However, by exercising its sovereignty in enacting a law which facilitates the creation of a court which is, arguably, superior to our own Supreme Court, has Parliament voluntarily relinquished its own sovereignty?

To make such an argument would be to fundamentally misunderstand the purpose and competency of the ECJ. The ECJ works in tandem with national courts, who may refer questions on EU law to the ECJ. The ECJ may not assert jurisdiction over matters without such matter having been first referred to it by the relevant national court of a Member State. The ECJ ruling is limited to matters within its competency i.e. matters relating to the interpretation or application of EU law.

It does not follow that an ECJ judgement may directly strike down a validly enacted Act of Parliament. Of course, there may be instances when, for example, a previously enacted Directive may be found to have been implemented incorrectly across a number of Member States and it may follow that the corresponding Act of Parliament may need to be revised in order to correctly reflect intended application of the relevant Directive. This is patently not the same as the ECJ randomly or capriciously striking down national laws over which they have been granted no competence by the Member States.

Finally, it is important to remember that the ECJ is empowered to render such judgements only through the operation of the EU Treaties, each of which having been endorsed and enacted into law through the actions of a sovereign Parliament.

Is Parliament sovereign?

This is not a question that is often debated outside of law libraries or academic circles. It is a matter of some curiosity that the question of parliamentary sovereignty has assumed such prominence in the current debate on EU membership, certainly when viewed in comparison to the more tangible and emotive arguments surrounding the economy or immigration.

It is, however, an important question. The sovereignty of Parliament is the key principle upon which the UK's unwritten constitution depends. To assert that Parliament is somehow not sovereign, is to fundamentally undermine the constitution and the entire body of common law upon which our society depends.

In determining whether or not Parliament is sovereign, it is important to distinguish the question from criticism of the EU's institutions or its law-making processes. To argue that the EU is somehow undemocratic, unrepresentative or even dictatorial or that membership of the single market is not worth the level of control currently delegated to the institutions of the EU is largely irrelevant in assessing whether or not Parliament remains sovereign.

It is undeniably true that the institutions of the EU exercise some control over certain areas of our polity. However, in the same way that the Northern Irish assembly has assumed authority over schools in County Derry or that Essex County Council retains control over the roads of Colchester, this authority is only granted to these institutions by the grace of Parliament and by virtue of legislation read, debated and validly enacted by a sovereign Parliament in pursuit of the policy objectives of the government of the day.

It seems clear therefore that, notwithstanding passage of the European Communities Act and all subsequent Acts of Parliament which have served to broaden and deepen the UK's relationship with the EU, Parliament has never relinquished its sovereignty. The argument that a body which is currently considered sovereign in the strict constitutional sense may, at some point in the future, forever relinquish its sovereignty is inherently paradoxical. Having legislated for the incorporation of EU law into UK law in the past, a future Parliament may "reassume its sovereignty" at any point and may, by the enactment of an Act of Parliament, determine that it will no longer be bound by EU law, engage in deliberations with the ECJ nor concern itself with the operation of the various EU institutions.

Indeed, if this weren't possible, what would be the point in having a referendum on EU membership at all?
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The Leave campaign has argued that membership of the EU limits the sovereignty of Parliament. But is this true? And what does it mean to be "sovereign"? In advance of June's referendum on the UK's membership of the European Union, both sides have set out several different types of argument supporting their respective positions.

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A vital reaffirmation of Parliamentary sovereignty
Sandra Fredman FBA, QC is a Professor of Law in the Faculty of Law and a Fellow of Pembroke College.

In a ringing defence of the power of Parliament against the executive, the Supreme Court today held that the decision to trigger the process of leaving the EU cannot be taken by the executive alone. Withdrawal from the EU makes a fundamental change to the UK's constitutional arrangements, and rights of UK residents will be lost. Such a change can only be effected by Parliament. Moreover, the Court made it clear that it was not enough to consult Parliament: the trigger to leave the EU had to be in statute. Nor did it accept that it was sufficient that ministers were accountable to Parliament for the exercise of such powers: the Crown's ancient prerogative power cannot be used in a way which removes existing rights of UK citizens.
One of the most disturbing consequences of the referendum has been the insistence that the Government is entitled to exercise its powers in relation to Brexit without involving Parliament. In a constitution whose central principle is Parliamentary sovereignty, such claims must be viewed with deep suspicion. Human rights are already precarious if left in the hands of a sovereign Parliament without a written constitution, especially where, as in the UK, the legislature is heavily dominated by the executive. Even more so if Parliament can be sidestepped. It is therefore of immense importance that the Supreme Court in Miller stepped in to protect the power of Parliament against the executive.

It is notable that the Government relied on the prerogative, the residual power of the Crown, to make its claim. In a modern democracy, the role of the prerogative is presumptively problematic. As the Court pointed out, the powers of the monarch to legislate or take executive action without the consent of Parliament have been progressively constrained since the 17th century. The Crown's administrative powers are now exercised by ministers answerable to Parliament. These powers must be compatible with both legislation and the common law: otherwise, ministers would be able to change the law, breaching the fundamental principle of Parliamentary sovereignty. Although the Court accepted that prerogative powers are appropriate in the conduct of foreign affairs, this was strictly because under the UK's 'dualist' system, treaties agreed between the UK and another foreign state cannot affect citizens' rights in domestic law without Parliamentary legislation.

The Government nevertheless argued that the European Communities Act 1972, which acts as the 'conduit' for EU law into domestic law, should be interpreted so that the prerogative power to withdraw from treaties is not excluded. It went so far as to argue that acts of the government in the exercise of the prerogative can alter domestic law. The majority judgment convincingly rejected this contention. Indeed, it held that by the 1972 Act, Parliament endorsed the UK's membership of the EU in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw.

It is repeatedly claimed that because the 'people have spoken' through the referendum it is right for the executive to act without Parliamentary consent. Does this mean that the claims of direct democracy, in the form of the referendum, trump the claims of Parliamentary representative democracy, with the paradoxical effect of giving more power to the executive? The majority emphasized that referenda are themselves a product of Parliamentary authority and must therefore depend on the statute which authorises them. The 2015 EU referendum Act simply provided for the referendum to be held without specifying the consequences. 'Where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation.'

This does not undermine the political significance of the referendum. It does, however, reassert the basic tenet that the people speak through their Parliamentary representatives in a democracy. Direct democracy cannot be operationalised by giving undiluted power to the executive.

The human rights implications of leaving the EU are profound. With neither a justiciable bill of rights, nor the binding nature of EU rights, Parliament remains the last custodian of human rights in the UK. The Supreme Court in Miller, far from exerting the power of an unelected judiciary, in fact reasserted the fundamental democratic principle of government through representative Parliament.

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Sandra Fredman FBA, QC is a Professor of Law in the Faculty of Law and a Fellow of Pembroke College. In a ringing defence of the power of Parliament against the executive, the Supreme Court today held that the decision to trigger the process of leaving the EU cannot be taken by the executive alone.

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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. Parliamentary sovereignty is the most important part of the UK constitution.

Parliamentary sovereignty and the UK constitution

People often refer to the UK having an 'unwritten constitution' but that's not strictly true. It may not exist in a single text, like in the USA or Germany, but large parts of it are written down, much of it in the laws passed in Parliament - known as statute law.

Therefore, the UK constitution is often described as 'partly written and wholly uncodified'. (Uncodified means that the UK does not have a single, written constitution.)

Developments affecting Parliamentary sovereignty

Over the years, Parliament has passed laws that limit the application of parliamentary sovereignty. These laws reflect political developments both within and outside the UK.

They include:

The devolution of power to bodies like the Scottish Parliament and Senedd Cymru.

The Human Rights Act 1998.

The UK's entry to the European Union in 1973 - and subsequent exit in 2020.

The decision to establish a UK Supreme Court in 2009, which ends the House of Lords function as the UK's final court of appeal.

These developments do not fundamentally undermine the principle of parliamentary sovereignty, since, in theory at least, Parliament could repeal any of the laws implementing these changes.

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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. Parliamentary sovereignty is the most important part of the UK constitution.

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The doctrine of "parliamentary sovereignty" is the central doctrine of British constitutional law, or so we are told.

And, as it is so central, you would expect it to be a powerful organising principle in the polity of the UK. A constitutional truth so entrenched that it only needs defending by stout country Brexit fellows from the continental designs of Johnny Foreigner.

On examination, however, what is striking about both the doctrine and the practice of parliamentary sovereignty is not so much its strength but its weaknesses. Its gravest enemies are not those across the channel but people working in the palace of Westminster or within a few miles of its precincts.

Taken together, these threats are such that the ideal may soon be a hollow legal fiction. Something perhaps invoked by the legally pedantic for the sake of procedural form, but not of any real constitutional weight.
The limits of the doctrine of parliamentary sovereignty
First, it is important to appreciate that the doctrine of parliamentary sovereignty is far more limited than many realise: in scope, in place and in time.

In scope: parliament is "sovereign" in respect of enacting primary legislation but not for anything else that the legislature does. The resolutions and orders of either house of parliament do not bind anything other than the houses themselves, nor do the various motions that can be passed. Even statutory instruments that are debated and affirmed can be quashed by the courts outside. When one talks of parliamentary sovereignty, one usually means the supremacy of Acts of Parliament. It is thereby not parliament that is "supreme", but just one of its activities.

In place: the doctrine of parliamentary sovereignty is known to the law of England and Wales, and arguably that of Northern Ireland. But as any Scots lawyer will proudly tell you, it has no equivalent in the law of Scotland. A senior Scottish judge declared in 1953 that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law". In fact, the law of Scotland is radically different to that of the other constituent parts of the UK in substance, procedure and its intellectual foundations. The constitutional fogey who waxes blithely about the "British constitution" (or a "British Bill of Rights") usually misses this point, as well as others.

In time: parliamentary sovereignty is not a principle that has been around since the dawn of time, or indeed for most of the history of parliaments. As the late historian Conrad Russell frequently observed, parliament from its origins in the 1200s to the 1600s was "an event and not an institution".

Although some constitutional writers have contended from Tudor times on that parliament may not be gainsaid, other jurists have been less emphatic. Sir Edward Coke, one of most important figures in English constitutional and legal history, was sometimes doubtful: "for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void", he reportedly said in a 1610 case. It was not a surprise that from the same common law cloth, American judges after independence were able to fashion the judicial review of acts of congress.

In England, though, the political and legal mood went against such Cokery. By the late Victorian period, AV Dicey was able to assert confidently that parliament was sovereign (though he is careful to limit his maxims on this to the law of England).

Even if they were minded to challenge the validity of statutes, the judges of England, unlike those of the US, had no codified constitution or recognised fundamental rights against which to compare Acts of Parliament. Such Acts were supreme by default. Dicey's influence was immense. (Not least because he was fortunate enough to write textbooks when law degrees were new.) His statements of constitutional orthodoxy still have devoted adherents on the judicial benches as well as in the university faculties of law. Senior legal figures will look as collectively horrified as any crowd in a Bateman cartoon if one dissents openly against what Dicey said.

But in practice the courts began to move away from Diceyanism during the 20th century. In the early 1930s, the courts set aside a provision of an Act of Parliament which contradicted a later Act (see paragraph 42 here). Rather than leaving it to parliament to resolve, the courts somehow found (that is, invented) the jurisdiction to vacate the law itself. It was an "implied repeal", the courts assured themselves and others: they were only giving effect to the true intention of parliament.

In 1990, the highest court of the land managed to do the same trick, but the other way round. A 1988 statute conflicted with the European Communities Act 1972. But the "implied repeal" this time was of the later and not the earlier legislation; and somehow this, too, was the real intention of parliament. Of course, in these cases "implied repeal" was a fiction: parliament had done what it had intended to do by passing all the Acts involved. The courts were picking and choosing which ones to enforce.

Indeed, in a 2005 House of Lords case Lord Steyn said in passing:

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

This was heady stuff. It appeared to go even further than an "implied repeal". It was now no longer fanciful to plead in court that a court should void a statute.You had judicial dicta of the highest level on your side.

And, over the last 40 years or so, domestic courts have also been quashing statutory instruments - which have been passed by parliament - as if they were mere administrative decisions or municipal bylaws. This is now so straightforward it hardly warrants separate consideration in the textbooks of public law: statutory instruments are just another "target" of judicial review. They can be quashed for unreasonableness, illegality, procedural irregularity, disproportionality or indeed any other ground the court can think of.

Dicey asserted in 1885 that parliamentary sovereignty meant "under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament". But, in just over 100 years, the courts were readily overriding or setting aside primary and secondary legislation on a variety of contexts. Of course, this being England, there was the polite pretence that parliamentary sovereignty had been absolute all along.

The doctrine of parliamentary sovereignty never had as much substance as its proponents claimed, in terms of ether scope, geographic extent or historical importance. It has always rested on the courts to apply it as a principle of statutory interpretation or construction - even if the judges still cover what they do with fig leaves about the intent of parliament. But, as Sir Stephen Sedley (the outstanding appeals judge of modern times) said, sovereignty rests in the crown in the courts as much as the crown in parliament.
The practical assault on parliamentary sovereignty
The greatest threat to parliamentary sovereignty is not, however, from the courts. Although legislation can be set aside or quashed by the judiciary, such exercises are infrequent. The possibility of activist judges quashing legislation on fundamental rights or human rights grounds alone - which began to be discussed as a serious possibility by some judges and jurists in the 1990s - has been checked firmly by the Human Rights Act 1998. It is a paradox of contemporary politics that the Human Rights Act is far from the danger to parliamentary sovereignty claimed by its alarmist opponents; it is instead the doctrine's closest legislative friend.

As further posts in this series will set out, the main assaults on the doctrine of parliamentary sovereignty come from ministers and officials in Westminster and Whitehall, and not the judges of the High Court and the bureaucrats of Brussels.

Some important bills are rushed through without adequate time for examination or debate. The only reason the UK government is condescending to place its surveillance and data-retention powers on the basis of primary legislation is more because of Edward Snowden (whose revelations led to the demands by international communications companies that in the UK certain powers be placed on a formal legal basis) than the ghost of AV Dicey. Departments as much as possible seek to bypass proper parliamentary scrutiny of primary legislation by using statutory instruments that will rarely be debated.

When the executive does use primary legislation, it can be for not the best of reasons. Some ministers seem unable to differentiate between a press release and a statute. In one dreadful example, the previous lord chancellor Christopher Grayling used scarce Ministry of Justice resources to enact an absurdly titled "Social Action, Responsibility and Heroism Act 2015 " (or the "Sarah Act") which had no legal effect whatsoever. It was intended to convey a signal on health and safety. But if you want to send a message, use a messenger pigeon, and do not misuse legislation.

We have the current ironic spectacle of the UK suffering an extra-parliamentary referendum campaign on the supposed issue of sovereignty of parliament. We have a prime minister demanding that the upper chamber of the legislature become less effective at scrutinising secondary legislation. We have ministers urging a "Sovereignty Act" that will assert the principle that parliament is sovereign: which would be better called the "Circular Logic Act".

All this daftness and thoughtlessness has a single origin: that, despite their protestations, ministers and their officials do not take the doctrine of parliamentary sovereignty seriously in practice. And if this daftness and thoughtlessness continues, we may find that the courts will not take the doctrine of parliamentary sovereignty seriously much longer, either.
David Allen Green, a lawyer and journalist, writes the Jack of Kent law and policy blog. David was recently shortlisted as digital journalist of the year at the London Press Awards.

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The fragility of parliamentary sovereignty

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The doctrine of "parliamentary sovereignty" is the central doctrine of British constitutional law, or so we are told. And, as it is so central, you would expect it to be a powerful organising principle in the polity of the UK.

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Does parliamentary sovereignty still reign supreme? | Adam Wagner

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Adam Wagner: If parliament is sovereign, why can the UK supreme court ignore the European Convention on Human Rights?

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3. Find out about some differing views on parliamentary sovereignty in the UK. 

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3. Find out about some differing views on parliamentary sovereignty in the UK. 

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Do you agree with any?

Does this change your original opinion?

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Do you think parliament should be sovereign? Why/why not?

Do you think only some aspects/functions of parliament should be sovereign?

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What is parliamentary sovereignty?

Who defined this?

What are the three elements?