Introduction
This essay explores the historical development of parliamentary supremacy and constitutional supremacy within the context of UK constitutional law. Parliamentary supremacy, often regarded as a cornerstone of the UK’s uncodified constitution, asserts the legal sovereignty of Parliament to make or unmake any law without challenge. In contrast, constitutional supremacy, more prevalent in jurisdictions with codified constitutions, places the constitution as the supreme legal authority, often protected by judicial review. The purpose of this essay is to trace the evolution of these concepts, focusing on their origins, key historical milestones, and their relevance to contemporary constitutional debates. The analysis will address how parliamentary supremacy emerged in the UK, briefly contrast it with constitutional supremacy in other systems, and reflect on the tensions between the two principles.
Origins and Rise of Parliamentary Supremacy in the UK
Parliamentary supremacy in the UK finds its roots in the tumultuous political developments of the 17th century. The English Civil War (1642–1651) and the subsequent Glorious Revolution of 1688–1689 were pivotal in establishing Parliament’s dominance over the monarchy. The Bill of Rights 1689, a landmark document, affirmed that laws could only be made or repealed by Parliament, curbing royal prerogative (Loveland, 2018). This principle was further entrenched through the writings of legal scholars like A.V. Dicey in the 19th century, who articulated parliamentary supremacy as the foundation of the UK’s unwritten constitution. Dicey argued that Parliament holds the ultimate legal authority, with no court or body able to override its legislation (Dicey, 1885). This view, though influential, has faced scrutiny, particularly in light of modern developments such as the UK’s membership in the European Union (EU), where EU law temporarily held precedence over domestic statutes under the European Communities Act 1972.
However, historical events also reveal limitations to this doctrine. The 1689 settlement did not entirely eliminate tensions between Parliament and other bodies, as evident in early judicial hesitations to fully accept parliamentary authority. Moreover, while Dicey’s doctrine suggests absolute power, practical constraints—such as political conventions and public opinion—often temper parliamentary actions (Bogdanor, 2009). Thus, parliamentary supremacy, while a bedrock of UK constitutional law, is arguably more nuanced in practice than in theory.
Constitutional Supremacy: A Comparative Perspective
In contrast to parliamentary supremacy, constitutional supremacy prioritises a written constitution as the highest legal authority, often safeguarded by judicial mechanisms. This principle is exemplified in jurisdictions like the United States, where the Supreme Court can strike down legislation deemed unconstitutional under the landmark case of Marbury v Madison (1803). Unlike the UK, where no court can invalidate an Act of Parliament, constitutional supremacy ensures that legislative bodies operate within defined legal boundaries (Barnett, 2017). In the UK context, the absence of a codified constitution means that constitutional supremacy, as understood in the American sense, does not apply. However, debates surrounding the Human Rights Act 1998 and the incorporation of EU law have raised questions about whether elements of constitutional supremacy are encroaching on traditional parliamentary sovereignty. For instance, courts can issue declarations of incompatibility under the 1998 Act, though they cannot invalidate legislation, reflecting a delicate balance (Elliott and Thomas, 2017).
Tensions and Modern Challenges
The interaction between parliamentary and constitutional supremacy remains a contentious issue, especially post-Brexit. The UK’s withdrawal from the EU has reignited discussions on reclaiming parliamentary sovereignty, as EU law’s overriding effect no longer applies. Yet, devolution to Scotland, Wales, and Northern Ireland has introduced quasi-federal elements, challenging the notion of a singular, supreme Parliament (Bogdanor, 2009). Furthermore, the increasing judicial role in interpreting rights under the Human Rights Act suggests a creeping influence of constitutional principles, prompting some to argue for a codified constitution to clarify these boundaries (Elliott and Thomas, 2017). Indeed, the evolving nature of global legal norms and international obligations continues to test the adaptability of parliamentary supremacy.
Conclusion
In summary, the historical development of parliamentary supremacy in the UK reflects a gradual shift from monarchical to legislative dominance, shaped by key events like the Glorious Revolution and reinforced by scholars like Dicey. Conversely, constitutional supremacy, as seen in codified systems, offers a contrasting framework where judicial oversight prevails. The tension between these principles remains relevant, particularly as modern challenges like devolution and human rights law blur the lines of traditional sovereignty. Ultimately, understanding this historical trajectory is essential for grappling with contemporary constitutional debates, as the UK navigates its uncodified system in an increasingly complex legal landscape. The implications of this balance—or imbalance—will likely shape future discussions on whether codification or continued flexibility better serves the nation’s constitutional needs.
References
- Barnett, H. (2017) Constitutional and Administrative Law. 12th edn. Routledge.
- Bogdanor, V. (2009) The New British Constitution. Hart Publishing.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. and Thomas, R. (2017) Public Law. 3rd edn. Oxford University Press.
- Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 8th edn. Oxford University Press.
