What is parliamentary supremacy?
If you are a student of English law, you will at some point study parliamentary supremacy. Some of your textbooks will refer to this legal concept as parliamentary supremacy and some will refer to it as parliamentary sovereignty. In this blog the doctrine will be referred to as ‘parliamentary supremacy’. For you as a law student, it is important to note that when we speak of Parliament’s supremacy in English constitutional law, we are concerned with Parliament’s legislative powers.
Parliamentary supremacy is a legal concept concerned with the relationship between Parliament and the courts. Therefore, we are concerned with how the courts respond to the laws Parliament makes.
Academics such as Wade and H.L.A Hart have helped us to understand this relationship through their writings. Additionally, some judges, through their remarks in certain legal cases, help us to understand this relationship.
It was the academic A.V. Dicey who first defined the legal concept. In the 19th century he observed and explained that ‘Parliament under the English constitution, has the right to make or unmake any law whatsoever; and, further, 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. ‘
70 years later Wade focused on explaining the foundations or basis of the sovereignty of Parliament. He found that the basis of the legislative supremacy of Parliament was found in the courts’ obedience to Parliament. In other words, Parliament had legislative supremacy because the courts obey Parliament.
Some judges confirm this obedience to Parliament through commentary in judgements. For example, in Ex p Canon Selwyn (1872) -Cockburn CJ stated, ‘There is no judicial body in the country by which the validity of an Act of Parliament could be questioned’.
Similarly, in British Railways v Pickin (1974), Lord Reid stated that ‘The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its standing orders perform these functions.’
It is important to note that comments such as Cockburn CJ’s and Lord Reid’s observations made by Wade and A.V.Dicey were made after the year 1689.
When we examine the relationship between Parliament and the courts before this date, we notice a different relationship between the two bodies. Additionally, it becomes clear that this relationship was significantly affected by the monarch’s position pre-1689 and it is demonstrated that at the heart of the relationship between Parliament and the courts pre-1689, is the courts’ uncertainty as to whether their obedience is to Parliament or to the monarchy.
What was the relationship between Parliament and the courts pre-1689?
Cases such as Dr Bonhams case (1610) and Day v Savage (1614) suggest a very different relationship between the judges and Parliament pre-1689. These cases suggest that some judges thought they could sometimes declare Acts of Parliament void and control them. For example, in R v Hampden or the Case of Ship Money (1637), by five to seven it was ruled that without Parliament’s consent, the King could impose a charge on subjects for providing ships. In other words, the judges in this case decided that the king had more power than did Parliament, because they stated by five to seven that he could impose a charge on subjects for providing ships without any consent from the Parliament.
This relationship would change following the events of the so-called Glorious Revolution 1688-1689.The revolution was ignited by King James II’s clashes with Parliament and the Anglican church. The king attempted to use his powers to dispense with laws which discriminated against Anglicans. In the case of Godden v Hales (1686) judges had to decide if the King could suspend the provisions of Parliament’s Test Act 1673. Eleven out of twelve judges said he could because
A) The kings of England are sovereign princes;
B) That the laws of England are the king’s laws;
Despite the courts’ obedience to the king, prominent politicians were not prepared to accept his behaviour. They invited James II’s protestant son in law, William of Orange to intervene.
James II fled the country. A convention Parliament was summoned, and a declaration of rights was issued. It condemned the actions of James II. The throne was offered to William and his wife Mary on the terms set out in the Bill of Rights 1689.
What did the Bill of Rights 1689 state? How did it change the relationship between Parliament and the courts?
The Bill of Rights 1689 confirmed that Parliament was superior to the monarchy. The Crown’s powers were weakened. Levying of taxation, raising or keeping of a standing army could not be done without Parliament’s grant or consent. Parliament was now responsible for the security of the state and held legislative power. The courts now owed obedience to the Acts of Parliament rather than the monarch. From this point the courts would therefore obey Acts of Parliament and not laws of the monarchy.
What is a constitution?
In most countries the state is divided between the Judiciary (the courts), Parliament (the legislature) and the Government (the executive). It is in a country’s constitution that we will find the broad principles of a state, and what the main institutions of that state are. The constitution also details who can make laws in that country, and the processes that need to be followed when making laws in that country.
For law students, it might be useful to see the constitution as superior law. It is this superior law, the constitution, which states that the courts cannot do A nor B and that Parliament cannot do A nor B.
It sets out principles which the main institutions must follow. It also allocates power between the main institutions of a state. Additionally, it states how the main institutions are to interact with each other and how they are to interact with individual citizens.
The three main principles that underpin the English legal system are Parliamentary Sovereignty, Rule of Law and Separation of Powers.
Does Britain have a constitution?
Most countries have a written constitution. This means there is a written codified document which details the main institutions of the country. It is this document that will indicate which institutions have power and what type of power they hold.
In England there is no such one document with a codified documentary of what the Government, Parliament and the Judiciary can and cannot do. Because there is no such one document, you will hear your law lecturer and tutor say that in England there exists a constitution, but that this constitution is unwritten.
So, if there is no one document with a codified constitution, and there is a constitution and it is unwritten, where is the constitution? How do we know what Parliament can and cannot do? How do Parliament and the courts know how to interact, and how do we know the limits of their powers? Where is the UK’s constitution? In other words, what are the sources of our constitution?
So, what are the sources of the constitution?
Our constitution is scattered in different sources. Some of these sources include Acts of Parliament, cases from the courts, conventions and the European Union.