Parliamentary sovereignty

Parliamentary sovereignty

Overview
Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

 of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 has absolute sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

, meaning it is supreme to all other government institutions—including any executive (government)
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...

 or judicial bodies. The concept also holds that the legislative body may change or repeal any previous legislation, and so that it is not bound by precedent.
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Encyclopedia
Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

 of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 has absolute sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

, meaning it is supreme to all other government institutions—including any executive (government)
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...

 or judicial bodies. The concept also holds that the legislative body may change or repeal any previous legislation, and so that it is not bound by precedent. Parliamentary sovereignty is to be contrasted with the concept of popular sovereignty
Popular sovereignty
Popular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...

, where the people are sovereign. Localities in which the legislature is sovereign are Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...

, Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...

, the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...

, Jamaica
Jamaica
Jamaica is an island nation of the Greater Antilles, in length, up to in width and 10,990 square kilometres in area. It is situated in the Caribbean Sea, about south of Cuba, and west of Hispaniola, the island harbouring the nation-states Haiti and the Dominican Republic...

, Barbados
Barbados
Barbados is an island country in the Lesser Antilles. It is in length and as much as in width, amounting to . It is situated in the western area of the North Atlantic and 100 kilometres east of the Windward Islands and the Caribbean Sea; therein, it is about east of the islands of Saint...

, Papua New Guinea
Papua New Guinea
Papua New Guinea , officially the Independent State of Papua New Guinea, is a country in Oceania, occupying the eastern half of the island of New Guinea and numerous offshore islands...

, and the Solomon Islands
Solomon Islands
Solomon Islands is a sovereign state in Oceania, east of Papua New Guinea, consisting of nearly one thousand islands. It covers a land mass of . The capital, Honiara, is located on the island of Guadalcanal...

, among other nations.

Finland


According to the constitution of Finland
Constitution of Finland
The Constitution of Finland is the supreme source of national law of Finland. It defines the basis, structures and organisation of government, the relationship between the different constitutional organs, and lays out the fundamental rights of Finnish citizens...

 sovereign power lies with the people, represented by the parliament. As the highest organ of government the parliament holds supreme legislative power and can override a presidential veto and alter the constitution. There is no constitutional court and the supreme court does not have an explicit right to declare a law unconstitutional.

By principle, the constitutionality of laws in Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...

 is verified by a simple vote in the parliament. However, the Constitutional Law Committee of the parliament reviews any doubtful bills and recommends changes, if needed. In practice, the Constitutional Law Committee fulfils the duties of a constitutional court. In addition to preview by the Constitutional Law Committee, all Finnish courts of law have the obligation to give precedence to the constitution when there is an obvious conflict between the Constitution and a regular law.

The power to alter and amend the constitution is vested with the parliament, requiring approval either by a two thirds majority in a single parliament if the proposed alteration is first declared to be urgent by a five sixths majority of the same parliament, or by a slower procedure of first passing the amendment by a simple majority in the then current parliament and then passing the amendment by a two thirds majority in the following parliament that convenes after a general election. A Finnish peculiarity is that the parliament can make exceptions to the constitution in ordinary laws that are enacted in the same procedure as constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...

s. An example of such a law is the State of Preparedness Act which gives the Council of State certain exceptional powers in cases of national emergency. As these powers, which correspond to U.S. executive orders, affect constitutional basic rights, the law was enacted in the same manner as a constitutional amendment. However, it can be repealed in the same manner as an ordinary law.

Executive power is shared by the President of the Republic and the cabinet. The latter must rely on the confidence of parliament. From the independence of Finland in 1917 up to the constitutional reform of 1999, the president held considerable executive powers, and in particular was able to call a re-election of the parliament at will. In order to strengthen the role of the parliament as the highest organ of government, the constitutional reform constrained most of the presidential powers to be exercised only on the advice of the cabinet.

New Zealand


The concept of parliamentary sovereignty in New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...

 is derived from that in the United Kingdom but differs in that New Zealand has no devolved institutions and supra-national obligations. New Zealand's unitary and insular status avoids any comparable limitations on legislative power:
However, the sovereignty of Parliament has been questioned in recent times.

History


During the 17th century the idea grew in England that parliament (House of Lords and House of Commons) shared in the sovereignty, based on an entirely erroneous notion of the history of parliament. It was not until the changing of the Coronation Oath in the Coronation Oath Act 1688
Coronation Oath Act 1688
The Coronation Oath Act 1688 was an Act of Parliament of the Parliament of England passed in 1689, the long title of which is "An Act for Establishing the Coronation Oath"...

 as part of the Glorious Revolution
Glorious Revolution
The Glorious Revolution, also called the Revolution of 1688, is the overthrow of King James II of England by a union of English Parliamentarians with the Dutch stadtholder William III of Orange-Nassau...

 that Parliament
Parliament of England
The Parliament of England was the legislature of the Kingdom of England. In 1066, William of Normandy introduced a feudal system, by which he sought the advice of a council of tenants-in-chief and ecclesiastics before making laws...

 was recognised as part of the constitutional structure, with laws being considered to emanate from parliament and not just the King. It is arguable whether the concept of parliamentary supremacy arose from the Acts of Union 1707
Acts of Union 1707
The Acts of Union were two Parliamentary Acts - the Union with Scotland Act passed in 1706 by the Parliament of England, and the Union with England Act passed in 1707 by the Parliament of Scotland - which put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706,...

 or was a doctrine that evolved thereafter. After 1689 English parliamentary supremacy began to be seen in the relation of the English parliament to those of Scotland and Ireland. The Act of Settlement 1701
Act of Settlement 1701
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...

 made a presumption upon Scotland: the Scots retaliated with the Act of Security 1704
Act of Security 1704
The Act of Security 1704 was a response by the Parliament of Scotland to the Parliament of England's Act of Settlement 1701. Queen Anne's last surviving child, William, Duke of Gloucester had died in 1700, and both parliaments needed to find a Protestant successor...

, which was countered by the Alien Act 1705: the issue was settled by the Union of English and Scottish parliaments
Parliament of Scotland
The Parliament of Scotland, officially the Estates of Parliament, was the legislature of the Kingdom of Scotland. The unicameral parliament of Scotland is first found on record during the early 13th century, with the first meeting for which a primary source survives at...

 in 1707 which created a new British parliament, though "in essence it was just an extension of the English parliament". The autonomy of the Irish parliament
Parliament of Ireland
The Parliament of Ireland was a legislature that existed in Dublin from 1297 until 1800. In its early mediaeval period during the Lordship of Ireland it consisted of either two or three chambers: the House of Commons, elected by a very restricted suffrage, the House of Lords in which the lords...

 also came under attack and the Declaratory Act 1720
Dependency of Ireland on Great Britain Act 1719
The Dependency of Ireland on Great Britain Act 1719 was an Act of Parliament of the Parliament of Great Britain passed in 1719 ....

 made the Irish parliament a dependency. The so-called Constitution of 1782
Constitution of 1782
The Constitution of 1782 is a collective term given to a series of legal changes which freed the Parliament of Ireland, a Medieval parliament consisting of the Irish House of Commons and the Irish House of Lords, of legal restrictions that had been imposed by successive Norman, English, and later,...

 removed British parliamentary supremacy for a short period but then the Irish parliament was merged with Britain's in the Acts of Union 1801.

The doctrine of parliamentary supremacy may be summarised in three points:
  • Parliament can make laws concerning anything.
  • No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).
  • A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.


Some scholars and judges have questioned the traditional view that Parliament cannot bind itself, arguing that it can impose procedural (or "manner and form") restrictions on itself, since the legislature must be constituted and regulated by legal rules.

The notion of parliamentary sovereignty began to be challenged with the Parliament Act 1911
Parliament Acts 1911 and 1949
The Parliament Acts 1911 and 1949 are two Acts of the Parliament of the United Kingdom, which form part of the constitution of the United Kingdom. Section 2 of the Parliament Act 1949 provides that that Act and the Parliament Act 1911 are to be construed as one.The Parliament Act 1911 The...

 which changed the nature of what was meant by parliament, as Dicey regretfully noted in the Introduction to the 8th edition of his Introduction to the Study of the Law of the Constitution (1915) , but that while the reality was now Cabinet
Cabinet of the United Kingdom
The Cabinet of the United Kingdom is the collective decision-making body of Her Majesty's Government in the United Kingdom, composed of the Prime Minister and some 22 Cabinet Ministers, the most senior of the government ministers....

 and political party
Political party
A political party is a political organization that typically seeks to influence government policy, usually by nominating their own candidates and trying to seat them in political office. Parties participate in electoral campaigns, educational outreach or protest actions...

 were supreme (pp lxxii-lxxiv), in law parliament was still sovereign albeit that "the share of sovereignty" of the Commons had increased (p xlii).

Parliamentary sovereignty was further undermined by the Irish Free State Constitution Act 1922
Irish Free State Constitution Act 1922
The Irish Free State Constitution Act 1922 was an Act of the Parliament of the United Kingdom, passed in 1922 to confirm the Constitution of the Irish Free State, and to ratify the 1921 Anglo-Irish Treaty....

, which effectively recognised the concept of consent
Consent of the governed
"Consent of the governed" is a phrase synonymous with a political theory wherein a government's legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised...

 rather than the law as the source of legitimacy, and the United Nations Act 1946
United Nations Act 1946
The United Nations Act 1946 was passed by the Parliament of the United Kingdom as a means of putting the job of implementing the resolutions of the United Nations Security Council in the hands of the government rather than Parliament...

 which bound the UK to an external organisation and restricted parliament's absolute sovereignty. In theory Parliament could repeal the Act and withdraw from the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...

.

Parliament also renounced its sovereignty over the legislatures of former dominion
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...

s and colonies
Colony
In politics and history, a colony is a territory under the immediate political control of a state. For colonies in antiquity, city-states would often found their own colonies. Some colonies were historically countries, while others were territories without definite statehood from their inception....

 in the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...

. Following the Balfour Declaration
Balfour Declaration 1926
The Balfour Declaration of 1926, a report resulting from the 1926 Imperial Conference of British Empire leaders in London, was named after the British statesman Arthur Balfour, first Earl of Balfour, Lord President of the Council and a previous Prime Minister of the United Kingdom...

, the Statute of Westminster 1931
Statute of Westminster 1931
The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...

 established a status of legislative equality between the self-governing dominions of the British Empire and the United Kingdom, and provided that Acts passed by the UK Parliament would not apply in the dominions without a dominion's express consent. It is difficult to see how the UK could later resile from that position. By way of further example, the UK Parliament passed the Canada Act 1982
Canada Act 1982
The Canada Act 1982 is an Act of the Parliament of the United Kingdom that was passed at the request of the Canadian federal government to "patriate" Canada's constitution, ending the necessity for the country to request certain types of amendment to the Constitution of Canada to be made by the...

 which stated that the UK Parliament would no longer be able to amend the Canadian constitution. If the UK parliament were to repeal or amend the Canada Act 1982, it would be unenforceable as Canada is no longer subject to UK sovereignty." However, such renunciatons do not affect the concept of parliamentary sovereignty.

European law does not recognise the British concept of parliamentary supremacy. The UK courts currently recognize the supremacy of EU law on those subjects where the EU can legislate. However, this supremacy conceptually derives from the European Communities Act 1972
European Communities Act 1972 (UK)
The European Communities Act 1972 is an Act of the Parliament of the United Kingdom providing for the incorporation of European Community law into the domestic law of the United Kingdom. It is not to be confused with the Irish law of the same name, Act No...

 and its successors, which could in theory be repealed by a future parliament. No sovereign state has ever left the EU, but since the passage of the Treaty of Lisbon
Treaty of Lisbon
The Treaty of Lisbon of 1668 was a peace treaty between Portugal and Spain, concluded at Lisbon on 13 February 1668, through the mediation of England, in which Spain recognized the sovereignty of Portugal's new ruling dynasty, the House of Braganza....

 in 2009 there is now a defined process for doing so.

Scotland


Some jurists have suggested that, following the Act of Union 1707, the principle of parliamentary sovereignty may not apply in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...

. Although no Scottish court has yet openly questioned the validity of an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

, certain judges have raised the possibility. Thus, in MacCormick v. Lord Advocate
MacCormick v. Lord Advocate
MacCormick v Lord Advocate was a Scottish legal action in which John MacCormick and Ian Hamilton contested the right of Queen Elizabeth II to style herself ‘Elizabeth II’ within Scotland...

, the Lord President
Lord President
The title Lord President may refer to one of several offices:*Lord President of the Council, the presiding officer of Her Majesty's Most Honourable Privy Council*Lord President of the Court of Session, the Chief Justice and Lord Justice General of Scotland...

 (Lord Cooper
Thomas Cooper, 1st Baron Cooper of Culross
Thomas Mackay Cooper, 1st Baron Cooper of Culross PC, KC was a Scottish politician, judge and historian.-Background and education:...

) stated that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law", and that legislation contrary to the Act of Union would not necessarily be regarded as constitutionally valid. Also, in Gibson v Lord Advocate, Lord Keith
Henry Keith, Baron Keith of Kinkel
Henry Shanks Keith, Baron Keith of Kinkel GBE, PC, QC was a Scottish judge.He was educated in the Edinburgh Academy, at the Magdalen College, Oxford, where he graduated with a Master of Arts and the University of Edinburgh, where he graduated with a Bachelor of Law...

 was circumspect about how Scottish courts would deal with an Act which would substantially alter or negate the essential provisions of the 1707 Act, such as the abolition of the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....

 or the Church of Scotland
Church of Scotland
The Church of Scotland, known informally by its Scots language name, the Kirk, is a Presbyterian church, decisively shaped by the Scottish Reformation....

 or the substitution of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

 for Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...

.

The establishment of the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

 has meant that area of parliamentary supremacy is redefined. For example, nuclear power
Nuclear power
Nuclear power is the use of sustained nuclear fission to generate heat and electricity. Nuclear power plants provide about 6% of the world's energy and 13–14% of the world's electricity, with the U.S., France, and Japan together accounting for about 50% of nuclear generated electricity...

 is not within its competence, but the Scottish government successfully blocked the wishes of the UK government to establish new nuclear power stations in Scotland using control over planning applications which is devolved. While it remains theoretically possible to dissolve the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

 or legislate without its consent in relation to Scotland, in practice such a move would be politically difficult.

England and UK generally


Parliamentary supremacy is blamed by contemporary legal historians for the failure of English law to develop due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 in the American sense (that is, a mechanism for protecting the human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

 of individuals from being arbitrarily infringed by the government).

The doctrine of parliamentary supremacy, in English Law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

, has been upheld in 2005 by Lord Bingham in the case of R (Jackson) v Attorney General:
Such a theory might not, however, work in practice. In 2004, the Government sought to pass the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which contained a comprehensive "ouster clause", which would have excluded judicial review of decisions on applications for asylum. There was uproar among judges and lawyers, and the Lord Chief Justice, Lord Woolf, went so far as to suggest that if the clause were to become law, the courts would simply refuse to apply it. With a constitutional crisis looming, the government backed down, and the clause became law in a much-diluted form. It should be noted that following the case of Factortame, which involved an ouster clause in the Merchant Shipping Act 1985, the court can obfuscate such ouster clauses by basing decisions on the "will of Parliament".

However there is a distinction to be made between legal sovereignty and political sovereignty. Parliament is not politically sovereign, which means that if Parliament does pass unpopular or oppressive legislation, then it may not be applied in practice. However this does not necessarily mean that Parliament is not legally sovereign. It is argued that nonetheless Parliament can legally pass any legislation it wishes. This point is made clearly by Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645:

Recent developments


In recent years some judges and scholars in Britain and New Zealand have questioned the traditional view that parliament is sovereign. Others, however, have rejected these arguments. Various constitutional changes in the United Kingdom have influenced the renewed debate about parliamentary sovereignty:
  1. The devolution
    Devolution
    Devolution is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level. Devolution can be mainly financial, e.g. giving areas a budget which was formerly administered by central government...

     of power to regional assemblies in Scotland
    Scotland
    Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...

     (Scottish Parliament
    Scottish Parliament
    The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

    ), Wales
    Wales
    Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...

     (Welsh Assembly) and Northern Ireland
    Northern Ireland
    Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...

     (Northern Ireland Assembly
    Northern Ireland Assembly
    The Northern Ireland Assembly is the devolved legislature of Northern Ireland. It has power to legislate in a wide range of areas that are not explicitly reserved to the Parliament of the United Kingdom, and to appoint the Northern Ireland Executive...

    ). All three assemblies can pass primary legislation within the areas that have been devolved to them, but their powers nevertheless all stem from the UK Parliament and can be withdrawn unilaterally. The Northern Ireland Assembly, in particular, has been suspended multiple times due to political deadlocks.
  2. The UK's membership of the European Economic Community, later the European Union
    European Union
    The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

    , from 1973. The EU represents, as the European Court of Justice
    European Court of Justice
    The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...

     ruled in 1963 in the case Van Gend en Loos
    Van Gend en Loos v. Nederlandse Administratie der Belastingen
    NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen was a landmark case of the European Court of Justice which established that provisions of the Treaty Establishing the European Economic Community were capable of creating legal rights which...

    , a "new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields". The UK became part of that legal order, though as UK membership of the EU has been brought about through Acts of Parliament – principally the European Communities Act 1972
    European Communities Act 1972 (UK)
    The European Communities Act 1972 is an Act of the Parliament of the United Kingdom providing for the incorporation of European Community law into the domestic law of the United Kingdom. It is not to be confused with the Irish law of the same name, Act No...

     – there is in principle the possibility that Parliament could, as a matter of UK law, pass further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK. In practice, any Act purporting to withdraw from the European Union would have to be passed in parallel with the withdrawal procedure laid down in Article 50 of the Lisbon Treaty, whereby a Member State would notify the European Council
    European Council
    The European Council is an institution of the European Union. It comprises the heads of state or government of the EU member states, along with the President of the European Commission and the President of the European Council, currently Herman Van Rompuy...

     of its intention to secede from the Union and a withdrawal agreement would be negotiated between the Union and the State. The Treaties
    Treaties of the European Union
    The Treaties of the European Union are a set of international treaties between the European Union member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives...

     would cease to be applicable to that State from the date of the agreement or, failing that, within two years of the notification.
  3. Following the case of Thoburn v Sunderland City Council
    Thoburn v Sunderland City Council
    Thoburn v Sunderland City Council is an important English constitutional law case. It advances the theory that there exists a hierarchy of Acts of Parliament, whereby those Acts affecting "the legal relationship between citizen and State" or "fundamental constitutional rights" form a special and...

    certain statutes are perceived to be protected as Constitutional Statutes. The case involved amendments to the Weights and Measures Act 1985
    Weights and Measures Act
    A Weights and Measures Act is an Act of Parliament determining trade law where the weight or size of the goods being traded are important. For example, if a bottle of milk is for sale and has a label saying it contains one pint, then the law states that it must contain that amount.-United...

     by the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 pursuant to Directive 80/181/EEC. This stated that Imperial measurements could be displayed so long as the metric
    Metric system
    The metric system is an international decimalised system of measurement. France was first to adopt a metric system, in 1799, and a metric system is now the official system of measurement, used in almost every country in the world...

     measurements were displayed in larger type beside them. Thoburn was convicted for only displaying Imperial measurements. In his defence he argued that allowing even limited use of Imperial measurements was inconsistent with the European directive and therefore in contravention of Section 2(2) of the European Communities Act 1972
    European Communities Act 1972
    European Communities Act 1972 can refer to:*European Communities Act 1972 * European Communities Act 1972...

    , and that the relevant section of the 1972 Act had therefore been implicitly repealed
    Implied repeal
    The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed...

    . However, the judgement by Lord Justice Laws held that certain statutes of constitutional importance, including Magna Carta
    Magna Carta
    Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

     and the European Communities Act 1972
    European Communities Act 1972
    European Communities Act 1972 can refer to:*European Communities Act 1972 * European Communities Act 1972...

    , could not be repealed by implied repeal
    Implied repeal
    The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed...

    . The case also introduces the concept of a 'hierarchy of acts
    Basic norm
    Basic norm is a concept in the Pure Theory of Law created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system...

    ', which is used in other European countries, to English constitutional law. However if Parliament did make its intention to overrule any statue express then any statue can be repealed, and so sovereignty is preserved.
  4. The enactment of the Human Rights Act 1998
    Human Rights Act 1998
    The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

     which incorporates part of the European Convention on Human Rights
    European Convention on Human Rights
    The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

     into domestic law. The Act gives UK courts the power to issue a declaration of incompatibility
    Declaration of incompatibility
    A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998, which incorporated the European Convention of Human Rights into the UK domestic...

     where they believe that the terms of an Act of Parliament are in contravention of the rights guaranteed by the Human Rights Act. The effect of the declaration is not to annul the contravening Act but to send a signal to Parliament which may then choose to amend the offending provision. This does not endanger Parliamentary sovereignty because Parliament may choose not to amend the offending provisions. As with the UK's membership of the European Union, the principle of parliamentary supremacy means that Parliament can at any time vote to repeal the Human Rights Act, and indeed the UK's ratification of the Convention itself.


However, Parliament may theoretically withdraw from commitments it has made or repeal any of the constraints it has imposed on its ability to legislate.

See also

  • Parliament of the United Kingdom
    Parliament of the United Kingdom
    The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

  • Factortame case
    Factortame case
    The Factortame litigation led to a series of landmark decisions in United Kingdom and European Union law. The case confirmed the supremacy of European Union law over national law in the areas where the EU has competence...

  • List of democracy and elections-related topics
  • Congress of People's Deputies of the Soviet Union
    Congress of People's Deputies of the Soviet Union
    The Congress of People's Deputies of the Soviet Union was the highest body of state authority of the Soviet Union from 1989 to 1991.-Background:...

  • Congress of People's Deputies of the Russia

External links