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Broadbent: Public Law Directions

Chapter 3

1. What is the principle of parliamentary sovereignty?

This is the most important feature of the British constitution. It is the idea that Parliament can make whatever laws it wishes, and, in its pure form, is not subject to any legal limitations on its ability to make law. Further, the law made by Parliament is the highest form of law recognised by the courts and takes precedence over the common law and over Parliament’s previous legislation in the event of a conflict between two Acts of Parliament, as Parliament cannot bind its successors. The theory is tempered by political realities, however, in that Parliament has to recognise that, for example, economic forces or the pressures of international relations mean that Parliament cannot always do what it might wish. Legal limitations arising from membership of the European Union also have to be taken into account by the courts, and the courts also have duties arising from the Human Rights Act as to the interpretation of legislation.  More generally, how the courts approach the task of interpretation can have an impact on whether legislation is applied in ways that Parliament might have envisaged.

2. Why is this principle so important in the British constitution?

It will be remembered that the principle of Parliamentary sovereignty is what lies at the heart of the British constitution in place of a document setting out the fundamental principles by which the state is governed. It provides the foundation of the constitution by enabling legislation passed by Parliament to take precedence over other forms of law. The recognition of the principle by the courts gives it legal significance as well as it being a political idea, and it is the legal aspects of sovereignty that we are concerned with. Even with the limitations on the principle mentioned above, it is still the basis of the British constitution.

3. What is the significance of the difference between Acts of Parliament and other forms of law?

Laws exist in a hierarchy, which is important in order to be able to resolve conflicts between them. A consequence of the principle of parliamentary sovereignty is that Acts of Parliament are the highest form of law in the UK. It therefore follows that Acts of Parliament take precedence over the common law and the principles of equity.  Moving outside the domestic sphere however, a consequence of membership of the EU is that the principle of Community sovereignty operates to ensure that EU laws take precedence over Acts of Parliament in the event of conflict.

4. How have the EU and the Human Rights Act impacted on parliamentary sovereignty?

You should note that their impact has been different.  Joining the European Community (as it then was) entailed subscribing to the idea of Community sovereignty. This means that European legislation prevails over any inconsistent law of a member state and is a necessary principle in order to promote unity in the application of European l aw across all member states. This has been achieved legally by virtue of s .2 European Communities Act 1972 and as such it can be argued that parliament has approved this particular limitation on its sovereignty. The position is very different with regard to the Human Rights Act which specifically incorporated the European Convention on Human Rights within the framework of parliamentary sovereignty, in particular by not giving the courts the power to overturn inconsistent legislation, but rather to refer it back to Parliament by means of a declaration of incompatibility. The power balance between the government, Parliament and the courts is clearly affected by these changes and you might like to reflect on the effect of this.