A Guide to UK Constitutional Law: Part III
“[In the UK], Parliament has…the right to make or unmake any law whatever; and…no person or body is recognized by the law…as having a right to [takeover] or set aside the legislation of Parliament.’ A.V. Dicey
One of the clearest results of an unwritten constitution in the UK is that the legislative powers of Parliament (its powers to make laws) have NEVER BEEN SET OUT IN ANY ONE DOCUMENT. In short, this resulted in Parliament and not the constitution being the supreme legal authority. In countries where there are written constitutions, the legislature is limited by the constitution in what it can or cannot do. The UK’s Parliament has been subject to no such legal limitation. The courts have no power to declare laws duly passed by Parliament as invalid or unconstitutional. There is no supreme law (constitution document) or Supreme Court (constitutional court) in the UK and thus supremacy has passed to the institution that makes the laws (Parliament). This principle of Parliamentary supremacy is quite unique to the UK and is fundamental to its constitutional law. Parliament as legislature can make whatever laws it wants.
© Ali Yýldýrým 2002
As a source of constitution law, A.V. Dicey was and is one of the most significant writers on the subject. For Dicey, Parliamentary supremacy was the dominant legal principle of the constitution. In the UK Parliament enjoys legislative supremacy, it has the right to alter the powers of the Crown or to establish new courts. In other constitutions, the powers of these institutions would come from the document called the constitution itself.
However, Parliamentary supremacy means its power to make laws. It should not be confused with ultimate political control or power (thus arguably not right to describe this as Parliamentary sovereignty as Dicey did, but rather as Parliamentary supremacy).
The word ‘Parliament’ is sometimes used to describe different things. In the UK the word ‘Parliament’ can be used to describe the actual buildings of the House of Commons and the House of Lords which are in Westminster, London. It is also mistakenly used to describe the House of Commons alone. However, Parliament in the context of Parliament supremacy means the legislature in the UK. This is the law-making body in the UK. The legislature is also known as the Queen in Parliament because it is made up of the House of Commons, the House of Lords and the Head of the Monarchy (the Queen).
The legislative process is by which a Bill requires the consent of the Queen, the House of Commons and the House of Lords before it may become an Act of Parliament (a statute/Law).
As said above, this is the fundamental rule of the UK’s constitutional law. It means that Parliament can legislate (make law) on any matter. However, in discussing this principle there are many things to think about in order to be able to understand the principle better and how it is really used in practice.
Whilst Parliament may be supreme in theory, in practice it will usually have regard to public opinion. Few governments would be foolish enough to start legislation that the public opinion did not want. This is true even when there is a clear majority in the House of Lords and Commons, because the public can ultimately change the make-up of the Commons at General Elections. An even better example of the strength of public opinion is the recent event in British political history of the ‘poll tax’ legislation. people demonstrated against the Poll Tax in Trafalgar Square, London on the 31st March 1990. The Poll Tax eventually caused the downfall of Margaret Thatcher in November 1990. The government (with John Major as Prime Minister) replaced the community charge with the council tax in an effort to regain public support.
See THE POLL TAX RIOTS (History in Pictures - from Paul Ross' camera)
So, there are practical and political limitations. The reality is that there are many internal and external political limitations on Parliament’s freedom of action. It has been argued that British membership of the European Union (EU) imposes not only legal (see below) but political limitations on Parliament. In practical terms, the increased co-operation required in the development of a common foreign and defence policy arising out of the Treaty on the European Union and the emphasis on co-operation in home affairs is an ever increasing bind on the Westminster Parliament’s freedom of action. The passing of the European Communitites Act 1972, and effectively entering the UK into the European Community, has been regarded as Parliament giving away (at least to some extent) its supremacy by its own hand, in that any laws made before now or later should not confict with European Community law.
European Community law is now the primary source of law in the UK. So when discussing the constitution of the UK, it is essential to mention the European Union and its institutions.
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