What is parliamentary sovereignty, and does it have limits? A close look

The UK is often said to have a so-called legal doctrine of parliamentary sovereignty, and this article will explain it in depth.

Copyright: Dwayne Hards.

The doctrine of the sovereignty of the Westminster Parliament in London supposedly means that the ultimate authority lies with the elected lower House of Commons and the upper unelected House of Lords, which makes today’s modern Parliament. This ancient legal principle was believed to have been established after the passing of the Bill of Rights 1689, an Act of the UK Parliament drafted after the Glorious Revolution to resolve the conflict between ordinary people and the legislature and guarantee individual liberties while maintaining the rule of law, and is still partly recognised by the Judiciary today. However, in reality, it doesn’t function exactly how some people interpret it, and it does come with fundamental limitations established under both unwritten conventions and written domestic and international law, as well as through historical judgements from both international and domestic law courts.

Some of the limitations of the so-called absolute unlimited sovereignty of the Westminster legislature were established by its very own legislation — like the Scotland Act 2016, the Constitutional Reform Act 2005, the Succession to the Crown Act 2013, the Human Rights Act 1998, the European Communities Act 1972 (currently repealed), the Magna Cartas of 1215 and 1297, the Equality Act 2010, the Petition of Right 1627, the Acts of Union 1707 and 1800, the Act of Settlement 1701, the Constitution of Canada Act 1982, the Scotland Act 1998, the Northern Ireland Act 1998, the Government of Ireland Act 1920, the Union with England Act 1707, the Treaty of Union (partially in force to this day but amended by the Acts of Union), and the Government of Wales Act 1998, as well as several other constitutional acts of Parliament. These principles are enshrined as a fundamental part of the constitution of the United Kingdom; and, so, the legislative branch must follow the conditions set out in these Acts should it wish to amend, replace, or repeal them, several independent legal sources and institutions have confirmed. And, while these pieces of legislation are one of the most well known and important elements of the UK’s constitution, there are still many other fundamental limitations of the authority of Parliament established through the senior law courts of the UK and also by certain international institutions, tribunals, institutions, and courts with jurisdiction over the UK — which were established through several historical court judgments and international legal documents accepted by the United Kingdom throughout its history. And, in addition to the many binding international treaties accepted and ratified by the UK, the common law, case law, and judicial decisions and precedents of the senior domestic courts of the Union of England, Wales, Scotland, and Northern Ireland (which, together, make up the sovereign European country of the United Kingdom of Great Britain and Northern Ireland consisting of four member countries and located in the northwestern part of Europe) plays a crucial role as to what legal authority the legal institutions — including the devolved governments and parliaments, the national Westminster Parliament, and the national Government, as well as local authorities — have, what their limitations are, and the duties and responsibilities that come with their authority. These limitations were imposed through various acts of Parliament, judicial decisions, legal documents predating Parliament, and international treaties and decisions from their respective enforcement institutions (for example, the European Court of Human Rights of the CoE and its Committee of Ministers, the International Court of Justice of the UN, tribunals and courts established through treaties, and the courts of the UK when interpreting international treaties), as well as highly persuasive and politically sensitive (but not officially binding) unwritten conventions — two of the most famous and commonly cited international treaties being the European Convention of Human Rights 1949 of the Council of Europe, which the UK is still currently a member of due to the Council not being part of the European Union, and the International Covenant on Civil and Political Rights (ICCPR) 1966 of the United Nations — that the UK has signed and ratified throughout its history, and these place a fundamental legal limitation on the powers of the UK Judiciary, executive branches, and legislative authorities. The decisions of the domestic and international courts and tribunals, which were established through international and domestic constitutional law, bind all public authorities, which includes Parliament and not just the executive. The UK legislative branch is, unfortunately for those looking to abuse their authority but generally respected by supporters of the rule of law, no exception. The common law and case law of the senior courts has also placed limitations on the powers of the legislature throughout the history of the UK, and one of the most well known judgments affecting today’s constitutional framework was handed down by the Supreme Court of the United Kingdom (UKSC) on 24 September 2019 with all 11 Justices unanimously ruling that former Prime Minster Boris Johnson had no right to request that Her Majesty Queen Elizabeth II suspend Parliament, as it was an unconstitutional attempt to interfere with the House of Commons’ constitutional duty to hold Johnson’s 2019 Conservative Government to account over the Brexit process. The Court also cancelled the suspension of Parliament, allowing it to continue its work and hold the Government accountable. Shortly after the ruling, MPs returned to Westminster, and the Order in Council was ruled void (of no affect and not binding). The R (on the application of Miller) (Appellant) v The Prime Minister case of 2019 has set a historical legal precedent — which is binding on the lower courts of England and Wales, Scotland, and Northern Ireland — as it was decided by the highest Court of the land.