Parliamentary Supremacy in the UK

Parliamentary Supremacy in the UK

Parliament supremacy is the alliance between politicians and the judiciary, acknowledged by judges as a very important constitutional relationship. Parliament supremacy justifies the involvement of politicians in the appointment of judges, so that the judiciary works for our elected parliament to enforce all acts, despite how they came to be law.

In the instance of Lee v Budge and Torrington Junction Railways Co., the failure of the judiciary to fulfill its constitutional role of checks and balances through judicial review, proves that parliament supremacy means that the judiciary is answerable and under control of the legislature, not vice versa. Denying the voidance of law that underwent fraudulent recitals clearly demonstrates that judges are ‘servants’ to the laws passed by parliament. In this case, Judge Wills makes it very clear that the courts will deny fundamental theoretical principles such as checks and balances and the rule of law that fabricates our constitution, in order to uphold parliament’s legislative sovereignty. Parliament supremacy is the inconceivable relationship between the parliament and the judiciary, which enables parliament supremacy to the singular framework of our constitution, completely boundless by any other principle considered to be constitutional.

One debatable exception to this general definition of parliament supremacy is when the UK domestic law directly contradicts European Union law, in which case judges recognise that parliament cannot pass any law. The Factortame case explicitly conveys this argument, however it is arguable that judges do not entirely consider the Merchant Shipping Act 1988 to be void. The judiciary still recognises the significance of the Act, accepting it to be void only for as long as parliament wishes to remain in the EU. Legally, parliament can extract itself from the union entirely, however this would prove to be politically difficult, due to the inevitable fact that UK citizens would not welcome the consequential limitations in other member states. Nonetheless, the judiciary recognises that parliament is the supreme law maker because not even the ‘sovereignty’ of the EU law can entirely suppress a parliament enacted law, the Merchant Shipping Act would withdraw legal validity if parliament does politically manage to leave the EU.

It is uncertain where judges stand on parliament being able to pass absolutely any law in the future, any chances we have had to test Lord Woolf’s constitutional perspective if parliament did the ‘unthinkable,’ have been too politically controversial and have thus not passed as statutes. The Asylum and Immigration (treatment of claimant) Bill 2004 proposed to do the ‘unthinkable,’ which Chief Justice argued would have imposed such a constitutional and judicial controversy, that it may have been the origin of a written constitution. Consequently if the bill had been enacted, either the judiciary would have accepted it to be a law and surrender their constitutional significance, or it would have been the constitutional end of parliament supremacy. The significance of this evidence is that parliament’s supremacy is evidently the backbone of our constitution; so much so that its legislative sovereignty is equally the principle that can legally immobilise our unwritten constitution. It is not definitive if judges would accept parliament’s power to pass a law so ‘unconstitutional’ that it degrades the role of the judiciary, therefore the true understanding of what parliament supremacy means and the extent to which it can our constitution, is only presumable.
Parliament supremacy is not merely defined by parliament’s legal competency to enact any law it pleases, it is also a courteous principle regarding good rather than excessive demonstration of power. Parliament should show dignified dominion in order to uphold a good and powerful constitution for British citizens. The Sewel convention illustrates this perspective because the legislature evidently considers ‘Parliament Supremacy’ to be a moral ethnic so embedded in our constitution that it does not need to be implemented through legislation. This principle requires parliament to willingly restrain its legislative supremacy for the political success of our constitutionalism. It is arguable, by way of contrast, due to political pressure, whether parliament attempts to respond well to this pressure because it recognizes that if its legislation is too politically controversial, it can detriment the effectiveness of its legislation, as exemplified by the Asylum and Immigration Bill. It is further arguable that such a value of good governance is constitutionally essential because without a written constitution, UK citizens need to understand that our elected parliament is devoting its power to the deployment of good national identity. Parliament supremacy is just as much a principle of honorable parliamentary conduct, as it is about powerfulness.

Legal supremacy also faces legal restrictions. Modern parliament supremacy can indeed bind its successors, which breaches constitutional rules of law. It is undeniable that the Canada Act 1982 will bind all successors; it is an enduring piece of legislation that cannot be effectively reversed through a repealed or amended act of any sort, making the legislature constitutionally weaker. Parliament can legally pass legislation to change Canada, but unlike the Railways Act 1869 in Lee v Brude and Torrington, it has no legal significance that judges would ever need to interpret or enforce. Another constitutional significance of such an act is that by having the power to bind future parliament, this retrospective legislation is an infringement of the rule of law. Failure to oblige to such principles does not make parliament’s supremacy unconstitutional, but it does that parliament supremacy is so constitutionally powerful that it can, and has, enforced retrospective legislation. The paradox is that it tallies further legislative restraints on future parliaments. Such binding legislation justifies that these limitations upon successors will with time equate to a less supreme and constitutionally weaker legislative parliament, much constitutionally weaker than the one we recognise today.

Exclusive email insights, members-only careers events, insider tips and more.