Parliamentary Sovereignty

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.

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.

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.

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.

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.

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.