Parliamentary Sovereignty

The orthodox view

 

  • The orthodox view is that Parliament is legally ‘sovereign’.

 

What does Parliamentary Sovereignty mean?

 

  • Parliamentary sovereignty means that Parliament has sovereign law-making supreme powers.

 

  • Parliament can pass, amend or repeal any primary legislation in the UK.

 

Historical Development of Parliamentary Sovereignty

 

Post 1688

 

  • The Bill of Rights 1688 is a political source of parliamentary sovereignty. The Crown took the thrown accepting that Parliament was sovereign. This was a political contract between the Crown and Parliament.

 

A.V. Dicey’s orthodox theory of Parliamentary Sovereignty

 

  1. Parliament can make or unmake any law on any subject matter. The courts must obey this.
  2. No Parliament is bound by its predecessors or can bind its successors.
  3. No body, including a court of law, can question the validity of an Act of Parliament.

 

Model 1: Wade and Continuing Sovereignty

 

Parliament is fully sovereign, sovereignty is fixed (or ‘continuing’), it is impossible for Parliament to do anything that would limit its own powers.

 

Continuing vs self-embracing sovereignty

 

  • Wade argues the UK has a continuing sovereignty, which cannot be destroyed and therefore, cannot entrench legislation.

 

Model 2: Self-embracing sovereignty

 

The self-embracing model agrees with A.V Dicey’s theory that Parliament is sovereign. However, it disagrees with the fact that entrenchment is not possible.

 

The proponents of the new view

 

  • The proponents of the new view argue that entrenchment is possible.
  • Their central argument is that Parliament is and should be capable of laying binding conditions on how and what form legislation is to be enacted.

 

Model 3: EU law is a substantive limit on Parliament’s law-making authority

 

  • This model rejects the first model as it characterises parliamentary sovereignty as a legal phenomenon.

 

Relevant Case Law:

 

The Case of Proclamations (1610) EWHC KB J22

 

Dr Bonham’s case (1610) 8 Co Rep 114

 

Mortensen v Peters (1906) 8 F (J) 93

 

Vauxhall Estates v Liverpool Corporation (1932) 1 KB 733

 

Ellen Street Estates v Minister of Health (1934) 1 KB 590

 

Edinburgh and Dalkeith Railway Co v Wauchope (1842) UKHL 710

 

R (Jackson) v Attorney General (2005) UKHL 56

 

Thoburn v Sunderland City Council (2003) Q.B 151