The legislative supremacy of Parliament

The legislative supremacy (or, as it is sometimes called, the sovereignty) of Parliament, has been at the heart of British constitutional law for over three centuries, since the Glorious Revolution of 1688.

Parliament can pass any legislation it wishes to pass; and

only Parliament can repeal legislation which Parliament has passed.

However, three points must be made if this statement is not to be seriously misleading.

First, it is essential to grasp that Parliament is not the same thing as the House of Commons. More particularly, for something to be an Act of Parliament, it must normally have been passed by both the House of Commons and the House of Lords and must always have received the Royal Assent from the monarch. The exceptional situation lurking behind the word normally in the previous sentence arises where a special procedure, which is contained in the Parliament Acts 1911 and 1949, is invoked. The details of this procedure are complicated, but its effect is simple: the House of Lords may delay legislation for one year, but cannot veto it. The only exceptions are Bills which the Speaker of the House of Commons certifies as being money bills – which are exempt even from the one year delaying power – and bills to prolong the life of Parliament, which are exempt from the provisions of the Parliament Acts altogether, and which can, therefore, still be vetoed by the House of Lords. The Parliament Acts procedure is very seldom invoked, although notable examples of its use include:

the Parliament Act 1949, which was itself passed under the provisions of the 1911 Act and which reduced the Lords’ delaying power from two years to one;

the War Crimes Act 1991, which permits United Kingdom courts to try people charged with certain war crimes, provided they were, on 8 March 1990, or have subsequently become, British citizens or residents of the United Kingdom, the Channel Islands or the Isle of Man; and

the Hunting Act 2004 which creates an offence of hunting wild mammals with dogs.

Secondly, the fact that something – in this case the legislative power of Parliament – is legally uncontrolled does not necessarily mean that it is totally uncontrolled. More particularly, in a liberal democracy, it is extremely unlikely that Parliament would use its powers in a way which would be universally viewed as being oppressive or unjust in any other way. Furthermore, there are two relevant constitutional conventions, namely that the House of Lords usually defers to the House of Commons, and that the monarch does not withhold the Royal Assent. The combined effect of these conventions is that, in purely practical terms, the political party that dominates the House of Commons will also very largely dominate the whole of the legislative process.

Thirdly, in Factortame Ltd v Secretary of State for Transport (No 2) [1991] 1 AC 603, the House of Lords accepted that when Parliament passed the European Communities Act 1972, it effectively surrendered part of its sovereignty, to the extent that whenever English law and what is now European Union law conflict, European Union law prevails.

By way of contrast to this third point, and although we will not pursue the protection of fundamental rights until we come to Chapter 5, it may be worth noting here that the Human Rights Act 1998 contains nothing which limits the continuing legislative supremacy of Parliament. More particularly, s. 4(5) of the 1998 Act expressly provides that where a United Kingdom statute is found to be in breach of a Convention right (as defined by s. 1(1) of the Act), neither the outcome of the case, nor – more importantly in the present context – the continuing validity of the offending statute, will be affected.

Two further, but unconnected, points may usefully be made by way of conclusion.

First, the doctrine of the legislative supremacy of Parliament is limited, as the phrase itself indicates, to Acts of Parliament, and therefore the doctrine does not apply to delegated legislation, which can be – and frequently is – quashed by the courts. (We have already considered the topic of delegated legislation in Chapter 2; but, very briefly, you will recall that it is legislation made by some person or body other than Parliament, to whom Parliament has delegated the power to legislate.)

Secondly, Parliament’s power to repeal Acts of Parliament may be exercised either expressly or impliedly. The idea of express repeal requires no comment, but it is worth noticing that implied repeal occurs where two statutory provisions are so fundamentally incompatible that one must give way to the other. In this situation, Parliament is presumed to have been aware of the earlier provision, and therefore is also presumed to have intended that the later one should repeal it.