Parliamentary Supremacy and Its Limits in British Law

Introduction: Britain's Unwritten Constitution

The United Kingdom government has been in existence for hundreds of years, and in that time relatively little has changed in its fundamental structure. Whereas other governmental systems divide power into three groups — the legislative, judicial, and executive branches — with all powers expressly spelled out in a written constitution, British law is built on precedent, written documents, statutes, treatises, and judgments, the authority of which derives from Parliament. As a result, British law has become known as operating under an unwritten constitution. This premise is supported in historical scholarship by quotations such as, "No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea" (Chrimes 42).

As time passed, Parliament's right to make critical decisions and implement laws became known as the doctrine of parliamentary supremacy. Parliamentary supremacy is the historical idea that within Parliament rests the sole discretionary power to create, amend, and nullify law (Lakin 399). In modern times, however, actions on the part of the United Kingdom have called into question whether Parliament still holds true supremacy, as more and more decision-making power has been delegated away and Parliament itself has drafted laws that limit its ability to function as the ultimate law of the land. In order to fully analyze the current state of Parliament in British law, the system must be examined with regard to Dicey's doctrine, external limits, and internal limits on Parliament's sole power.

Dicey's Doctrine of Parliamentary Supremacy

Dicey's doctrine is a historical analysis of the power of Parliament as it existed in 1885. According to this doctrine, Parliament is composed of the King, the House of Lords, and the House of Commons. Those three branches together hold complete power to make and unmake all laws of the land. Furthermore, all laws that these bodies create must be accepted by the people as binding law (Dicey). In other words, during this period Parliament held the sole power to make and unmake laws in Britain, and during the time of Dicey's analysis this was a simple and accepted fact (Lakin 402). Since the seventeenth century, this was the manner in which Parliament operated (Pocock 234).

For the most part, this method seemed advantageous to the British system of law; however, certain problems and criticisms began to emerge. For instance, the Irish Free State Constitution Act of 1922 drastically curtailed Parliament's power by asserting that law is legitimate only through consent and not through mere existence (Northern Ireland 1191). In more recent times, power has continued to be removed from Parliament through both internal and external measures, raising serious questions about Parliament's current purpose and authority.

External Limits: EU Law and the ECHR

There have been two primary external limits placed on Parliament's sovereignty: European Union law and the European Convention on Human Rights. Upon joining the European Union, Britain relinquished a degree of its sovereign statehood and agreed to abide by EU law. Under the European Union, there are primary, secondary, and supplementary laws that all member states must follow. None of these laws are created by Parliament, and any EU laws that contradict Parliament's legislation immediately override Parliament's authority. As discussed in Himsworth's article, certain European regions, including England, have questioned this practice, viewing it as a destruction of independent statehood. Many others now see it as necessary to embrace the concept of global citizenship rather than exclusive national identity (658). In other words, citizens once under the exclusive power of Parliament must now submit to an overarching supranational authority.

While such an arrangement would seem to usurp parliamentary authority, the one sustaining counterpoint is that individual member states retain the capacity to legislate at a level equal to or greater than EU law (Haughwout 24). Thus, Parliament could in theory overrule EU law by enacting legislation of equivalent or superior force. So, while the EU may currently serve as a model of "ideal" law for Parliament, it is Parliament that retains the ultimate power to legislate — including the power to withdraw from the Union entirely, a possibility that has increasingly entered public and political debate.

The second external restriction on Parliament is the European Convention on Human Rights (ECHR). The ECHR was enacted in 1953 and is intended to protect the basic human rights of all citizens of European nations. This instrument permits a citizen of any member country to bring a case before the ECHR court, and should a nation's action be found in violation of human rights, a penalty is applied to that nation and the offending law must be removed (Ovey 50). Similar to the EU issue, this limitation might appear to remove power from Parliament; however, it is removing power that Parliament never legitimately possessed — namely, the power to violate inherent human rights.

Conclusion: The Future of Parliamentary Authority

Britain has a rich history of Parliamentary rule and proper law-making under that rule. However, in recent years many have questioned the effectiveness of this traditional model in the modern world. While questions persist in many minds about Parliament's overall power and capacity, one thing remains clear: the system has been given both external and internal checks and balances. The question is how long it will be before those checks and balances override the traditional model entirely.

These checks and balances are obviously a significant limitation on any sovereign nation's power, but for the time being they appear to limit that power in ways designed to protect citizens from governmental overreach. There is growing talk and consideration that certain sovereign nations may abandon EU practices — a possibility made more concrete now that a formal exit policy exists — but for now, at least, member nations have made their peace with the EU's rules and procedures. While one can argue that a cleaner solution would be to separate out the powers of each branch, there is also serious concern about the weight of existing precedent, the reconstruction of which would be the equivalent of redrafting the Magna Carta.

Works Cited

A.V. Dicey. Introduction to the Study of the Law of the Constitution. 1885.

Chrimes, S.B. "English Constitutional History." Oxford University Press. 1967.

Haughwout Folsom, Ralph, Lake, Ralph B., and Nada, Ved P. European Union Law after Maastricht: A Practical Guide for Lawyers outside the Common Market (2nd ed.). Kluwer Law International. 1996.

Himsworth, C.M.G. "In a State No Longer: The End of Constitutionalism?" Legal Journals Index. 2012.

Lakin, Stuart. "How to Make Sense of the HRA 1998: The Ises and Oughts of the British Constitution." Oxford Journal of Legal Studies. 2010.

Northern Ireland Parliamentary Report. Vol. 2. 1922.

Ovey, Clare, and White, Robin C.A. Jacobs & White: The European Convention on Human Rights (4th ed.). Oxford University Press. 2006.

Pocock, J.G.A. The Ancient Constitution and the Feudal Law. Cambridge University Press. 1987.

"Sources of European Union Law." Europa. 2010.

White, Richard. "Separation of Powers and Legislative Supremacy." Law Quarterly Review. 2011.