Introduction
Parliamentary supremacy, a cornerstone of the United Kingdom’s unwritten constitution, asserts that Parliament is the highest legal authority, capable of making or repealing any law without legal constraint. This principle, often traced back to the constitutional developments following the Glorious Revolution of 1688-89, implies that no court or other body can question the validity of parliamentary enactments. However, despite its central role, parliamentary supremacy faces significant challenges, particularly in the context of modern constitutional developments such as devolution, the influence of European law, and the rise of judicial power. Furthermore, legal scholars such as R.F.V. Heuston, Paul Craig, T.R.S. Allan, and Sir Ivor Jennings have raised critical objections to traditional interpretations of parliamentary supremacy, questioning its absolute nature and highlighting theoretical and practical limitations. This essay aims to explore the concept of parliamentary supremacy in the UK, examine the contemporary challenges it faces, and critically analyse the objections posed by these scholars. By doing so, it seeks to provide a nuanced understanding of this foundational doctrine and its evolving role within the UK’s constitutional framework.
The Concept of Parliamentary Supremacy
Parliamentary supremacy, as articulated by A.V. Dicey in his seminal work, holds that Parliament has the right to make or unmake any law, and no person or body is recognised by the law as having the right to override or set aside parliamentary legislation (Dicey, 1885). This doctrine emerged historically from the assertion of parliamentary power over the monarchy, notably through the Bill of Rights 1689, which established Parliament’s legislative authority. In practice, this means that statutes passed by Parliament are the highest form of law, binding on courts and other institutions, and cannot be challenged on grounds of legality or constitutionality in the way that laws in other jurisdictions, such as the United States, might be subject to judicial review.
The significance of this principle lies in its role as a guarantor of democratic governance, ensuring that elected representatives have the ultimate authority to shape the law. However, while parliamentary supremacy is often described as absolute in theory, its application in practice reveals complexities and limitations. For instance, political constraints, such as public opinion or international obligations, may limit what Parliament can feasibly enact, even if it retains the legal power to do so. This tension between theory and practice sets the stage for the challenges and scholarly critiques discussed below.
Contemporary Challenges to Parliamentary Supremacy
One of the most prominent challenges to parliamentary supremacy in the modern era is the UK’s historical relationship with the European Union (EU). Prior to Brexit, the European Communities Act 1972 effectively incorporated EU law into the UK legal system, granting it primacy over conflicting domestic legislation. This was exemplified in cases such as R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603, where the House of Lords held that UK courts could disapply national legislation that conflicted with EU law. Although the UK’s withdrawal from the EU has altered this dynamic, the legacy of EU law and retained provisions under the EU (Withdrawal) Act 2018 continue to raise questions about the absolute nature of parliamentary authority.
Another significant challenge arises from devolution. The creation of devolved legislatures in Scotland, Wales, and Northern Ireland through statutes such as the Scotland Act 1998 has redistributed legislative powers, creating a quasi-federal structure within the UK. While Parliament retains the legal right to repeal devolution statutes, doing so would be politically contentious and, arguably, impractical. This suggests a practical limitation on parliamentary supremacy, as the exercise of absolute power could undermine the constitutional stability of the Union.
Finally, the growing influence of judicial power and human rights law, particularly through the Human Rights Act 1998 (HRA), poses a challenge. The HRA empowers courts to issue declarations of incompatibility when domestic legislation conflicts with the European Convention on Human Rights, though such declarations do not invalidate the law. This mechanism, while preserving parliamentary supremacy in a formal sense, highlights an increasing judicial role in shaping legislative outcomes, raising questions about the balance of power between Parliament and the judiciary.
Scholarly Objections to Traditional Interpretations of Parliamentary Supremacy
Legal scholars have long debated the theoretical foundations and practical implications of parliamentary supremacy, often challenging the absolutist interpretation associated with Dicey. R.F.V. Heuston, for instance, distinguished between legal and political sovereignty, arguing that while Parliament may be legally supreme, its powers are constrained by political realities and conventions (Heuston, 1964). He suggested that parliamentary supremacy is not an unchallengeable rule but a doctrine subject to change through revolutionary or extra-legal means, thereby questioning its permanence.
Paul Craig has critiqued the traditional view by highlighting the impact of EU membership on parliamentary supremacy. Craig argues that the principle of supremacy was effectively modified by the UK’s integration into the EU legal order, as courts were bound to prioritise EU law over national statutes (Craig, 1991). Even post-Brexit, Craig’s analysis underscores the need to re-evaluate parliamentary supremacy in light of international legal commitments and globalisation, suggesting that absolute sovereignty may no longer be a tenable concept in a modern constitutional context.
T.R.S. Allan, meanwhile, approaches the issue from a jurisprudential perspective, emphasising the rule of law as a constraint on parliamentary power. Allan contends that parliamentary supremacy must be understood within a framework of constitutional principles, including the rule of law, which may impose moral or legal limits on what Parliament can enact (Allan, 1993). For Allan, the idea of an unconstrained Parliament risks undermining fundamental values, such as individual rights, that underpin the constitutional order.
Sir Ivor Jennings offered a more pragmatic critique, focusing on the practical limits of parliamentary power. Jennings argued that while Parliament may be legally supreme, its authority depends on the acceptance and compliance of other institutions and the public (Jennings, 1959). He pointed out that parliamentary supremacy is sustained by political and social factors rather than being an inherent legal truth, thus challenging the notion of absolute power divorced from context.
Conclusion
In conclusion, parliamentary supremacy remains a foundational principle of the UK constitution, embodying the democratic ideal of legislative authority vested in elected representatives. However, as this essay has demonstrated, the doctrine faces significant challenges in the form of EU law (even post-Brexit), devolution, and the expanding role of judicial oversight through mechanisms like the Human Rights Act. Furthermore, scholarly objections from Heuston, Craig, Allan, and Jennings highlight the theoretical and practical limitations of an absolutist interpretation of parliamentary supremacy, pointing to the importance of political realities, international obligations, the rule of law, and societal acceptance as constraints on parliamentary power. These critiques suggest that while parliamentary supremacy may retain formal legal status, its exercise is increasingly shaped by a complex web of constitutional and extra-legal factors. Looking forward, the evolving nature of the UK’s constitutional landscape—particularly in areas such as devolution and human rights—will likely continue to test the boundaries of this doctrine, necessitating a re-evaluation of its role in modern governance. Ultimately, understanding parliamentary supremacy requires not only an appreciation of its historical significance but also a recognition of its adaptability to contemporary challenges.
References
- Allan, T.R.S. (1993) Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism. Oxford University Press.
- Craig, P. (1991) ‘Sovereignty of the United Kingdom Parliament after Factortame’, Yearbook of European Law, 11, pp. 221-255.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Heuston, R.F.V. (1964) Essays in Constitutional Law. Stevens & Sons.
- Jennings, I. (1959) The Law and the Constitution. University of London Press.
