Parliamentary SupremacySovereignty What is Parliamentary Supremacy sovereignty The

Parliamentary Supremacy/Sovereignty

What is Parliamentary Supremacy (sovereignty)? • The idea that our Parliament is the supreme law-making body in the country – can’t be overruled by anyone else • Established in Bill of Rights 1689 • Explained by Dicey (1885) – as a democratically elected body, Parliament is the supreme law-making body in the country • “Parliament…has…under the English constitution, the right to make or unmake any law whatever…and 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” • Parliament can make law on any topic • Legal Sovereignty – Acts of Parliament must be applied by the courts and override any judicial precedent or previous Acts of Parliament • Political Sovereignty – no Parliament can bind its successors – can’t make laws restricting law making in future Parliaments

Limits on Sovereignty – the EU • European Communities Act 1972 – membership of the European Union takes priority over conflicting laws in member states • So, if an EU law conflicts with a UK law, the EU law is the one that counts • S 2(1) – all provisions of EU law have the force of law in the UK • S 2(4) – UK Acts of Parliament are subject to directly applicable EU law (any laws dealing with the same issue) • Costa v ENEL – both pre-existing Acts and those made in the future must comply with EU law • Factortame - If Parliament passes an Act which conflicts with EU law, EU law must prevail - the courts must set aside the Act of Parliament and follow the EU law (contrary to the principle of legal sovereignty) • Areas of law not covered by the EU, Parliament is supreme • ECA could be repealed – as will eventually be the outcome of the EU referendum

Limits on Sovereignty – Human Rights • Human Rights Act 1998 – incorporates European Convention on Human Rights into English law – but Convention does not have superiority over English law and Parliament can still make laws that conflict with it • S 19 – Government minister must declare before a Bill is given its second reading whether it is compatible with the HRA • S. 3 HRA – courts are required as far as possible to interpret Acts so that they comply with the Convention • If an Act cannot be reconciled with the Convention, a judge can make a statement of incompatibility, although ministers are not then obliged to change the law • Parliament could refuse to respond to such a declaration, but in practice it is likely the Government will accept the legislation has to change – e. g. – Government changed the law following a declaration of incompatibility in A and others v Secretary of State for the Home Department (the indefinite detention of foreign prisoners in Belmarsh without trial under the section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights. )

Questions you may be Asked • Outline the doctrine of Parliamentary supremacy (usually half of a 10 mark question) • Briefly explain what is meant by the doctrine of Parliamentary supremacy. Outline one limitation on this doctrine (10 marks) • Note – don’t discuss the limits unless the question asks you to