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Law and State Seminar 2 Prep

Seminar Questions

1. Definition of Parliamentary Sovereignty

Parliamentary Sovereignty is a constitutional principle in the UK that establishes Parliament as the supreme legal authority, meaning it can create or repeal any law. It implies that no other body, including courts, executive authorities, or previous Parliaments, can override or set aside the laws passed by the current Parliament. As a result, no Parliament can limit the legislative powers of future Parliaments. This principle is often attributed to the constitutional theorist A.V. Dicey, who described it as Parliament having the "right to make or unmake any law whatever."

2. Legal or Political Power?

Parliamentary Sovereignty primarily refers to the legal power of Parliament. It means that, in legal terms, Parliament has the ultimate authority to legislate on any matter, and there is no legal force that can limit this authority. However, Parliamentary Sovereignty also has political dimensions. While legally Parliament is sovereign, politically, it operates within the context of democratic norms, public opinion, and international obligations, which may constrain or influence its legislative decisions.

3. Can Parliament Ignore the Wishes of the Electorate?

Legally, Parliament can enact laws even if they go against the wishes of the electorate, since Parliamentary Sovereignty means there are no legal constraints on its legislative power. However, this would be politically risky because Members of Parliament (MPs) are elected representatives, and ignoring the electorate's wishes could result in electoral defeat or public unrest.

Examples of Parliament Ignoring the Electorate:

  1. Poll Tax (1989-1990): The Community Charge (commonly known as the poll tax) was highly unpopular in the UK. Despite widespread protests, the government under Prime Minister Margaret Thatcher pushed ahead with the legislation. Eventually, the overwhelming public opposition contributed to Thatcher's resignation and the tax’s repeal in 1993.

4. Can Parliament Enact a Law that Binds Its Successor?

Under the doctrine of Parliamentary Sovereignty, Parliament cannot bind its successors. This principle means that no Parliament can pass a law that future Parliaments cannot amend or repeal. A subsequent Parliament can undo any law passed by one Parliament.

Examples of Attempted Binding:

Parliament Act 1911: Although the Parliament Acts of 1911 and 1949 limited the powers of the House of Lords, these statutes themselves can theoretically be amended or repealed by future Parliaments

European Communities Act 1972: This Act was passed to incorporate European Union law into UK law. Although it gave effect to EU law, subsequent Parliaments retained the power to repeal it, as demonstrated by the European Union (Withdrawal) Act 2018, which facilitated Brexit and repealed the 1972 Act.

5. What are Constitutional Statutes?

Constitutional Statutes are statutes that significantly impact the constitutional framework of the UK. Unlike ordinary statutes, they cannot be implicitly repealed or overridden by newer legislation unless there is express intent from Parliament. This concept was developed in case law to distinguish between laws that form part of the UK's constitutional structure and ordinary laws.

Test for a Constitutional Statute:

The legal test for identifying constitutional statutes emerged from the case of Thoburn v Sunderland City Council [2002]. In this case, Lord Justice Laws identified that certain statutes have a constitutional status because they:

  1. Regulate fundamental legal or political rights, or

  2. Alter the relationship between the citizen and the state.

Constitutional statutes cannot be repealed by implied repeal (i.e., by passing a new law that conflicts with them) but only by explicit legislation that addresses their repeal or modification.

Examples of Constitutional Statutes:

  • Magna Carta (1215): One of the earliest examples of a statute forming the basis for constitutional principles in England.

  • The Human Rights Act 1998: Incorporates the European Convention on Human Rights into UK law, providing significant protection for individual rights.

  • The Scotland Act 1998: Grants devolved legislative powers to the Scottish Parliament.

  • The European Communities Act 1972: this Act was fundamental in making EU law part of UK law until Brexit.

5.1 Parliamentary Sovereignty in the Old Constitution

Parliamentary sovereignty was a legal rule that specified the legal force of statutes and, as a result of this, the capacity of Parliament to make law

The good sense of the statute or the manner in which it had been produced was irrelevant

when there was a conflict between an older and a newer statute, the newer statute took precedence: conflicting rules of the earlier statute were impliedly repealed

he court’s inability to rule that a statute was beyond the power of Parliament, coupled with the rule of implied repeal, entailed that Parliament could not effectively impose substantive limits on itself.

whilst Parliament could not place substantive limits on its future selves, it could determine the process by which these parliaments could change the law

It is arguable that, as regards Scots law, the UK Parliament is a limited, non-sovereign, institution, constrained by elements of the treaty and statutes that led to its creation

The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.

interpreting the significance of MacCormick

If there were different rules regarding statues in England and Scotland then the UK constitution would be characterized as a form of legal pluralism which is the presence of more than one legal system in the UK

A statute may be valid in English law, but not Scots law, the validity of which would be decided by the supreme court however a question would arise, will the court hear the case as a English, or Scottish court?

5.2 The European Union and the Quiet Death of Sovereignty

Joining the EC in the 1970s required giving European law priority over conflicting national laws

This requirement conflicted with the principle of parliamentary sovereignty

The European Communities Act 1972’s section 2.4, attempted to make future UK statutes subject to European law, this was a direct challenge to parliamentary sovereignty as it hindered Parliaments absolute law making capabilities

Factortame Cases

Merchant Shipping Act 1988 conflicted with EC treaty articles

Courts were asked to suspend operation of the 1988 Act due to conflict with EC law

House of Lords initially ruled they lacked power to disapply the Act

ECJ ruled national courts must set aside conflicting national rules

House of Lords then suspended operation of the 1988 Act

Marked end of traditional parliamentary sovereignty

Courts could now limit effectiveness of statutes conflicting with EC law

Earlier statute (ECA 1972) could take precedence over later conflicting statutes

Courts continued to disapply UK statutes conflicting with EC/EU law (e.g., Equal Opportunities Commission case, Benkharbouche v Foreign Secretary)

5.3 The Courts, Parliament, and Statutes in the New Constitution

constitutional statutes are special, important laws that are harder to change. Having more constitutional statutes means parliament's power isn't unlimited anymore. parliament is still the top law-making body, just with some new rules to follow

5.3.1 Constitutional Statutes

Constitutional statutes are essentially the "big rules" that shape how a country operates at a fundamental level.

  • Implied repeal: This is when a new law contradicts an older law, so the older law is considered to be automatically overturned, even if the new law doesn't explicitly say so.

  • Express repeal: This is when a new law specifically states that it's overturning or changing an older law.

  • Constitutional statutes: As mentioned before, these are special, fundamental laws about how a country is governed.

  • Express enactment means making a new law in a clear and direct way.

Features of Constitutional Statutes

In the case of Thoburn v Sunderland City Council (2002), also known as the "Metric Martyrs" case, Lord Justice Laws provided a judicial definition of a constitutional statute. He noted that these statutes have:

  • Special legal significance: They affect the fundamental rights or the constitution.

  • Entrenched protection: They cannot be impliedly repealed by ordinary statutes. Instead, any change must be explicit.

This makes constitutional statutes different from ordinary statutes, which can be repealed or amended by later laws without specific, explicit language.

Examples of Constitutional Statutes:
Magna Carta 1215
Bill of rights 1689
Act of Union 1707
Human Rights Act 1998


European Communities Act 1972 (Repealed): Gave effect for EU law in the UK, establishing EU law as a primary over UK law while the UK was part of the EU


Scotland Act 1998, Government of Wales Act 1998, and Northern Ireland Act 1998: These acts established devolved governments, creating constitutional structures within the UK.

The Effect of EU Law on Constitutional Statutes

Primacy of EU Law

Before Brexit, EU law had precedence over UK law by the European Communities Act 1972. This meant that if there was a conflict between UK domestic law (including constitutional statutes) and EU law, UK courts were required to give effect to EU law.

  • Factortame case (1991): This case is a famous example that demonstrates the conflict between UK law and EU law. The UK Merchant Shipping Act 1988 was found to be in conflict with EU law regarding the free movement of goods and services. The House of Lords (now the Supreme Court) ruled that UK courts had to disapply the conflicting parts of the Merchant Shipping Act to comply with EU law. This showed how EU law could effectively override national legislation, even acts of constitutional significance.