Parliament

The Parliament of the United Kingdom is the supreme legislative institution for the United Kingdom of Great Britain and Northern Ireland and also for the British Oversas Territories. The latter are some 14 territories under the sovereignty of the U.K. and include Bermuda, Gibraltar, the Falkland Islands, British Indian Ocean Territories etc. The term "British Overseas Territories" came about as a result of the British Overseas Territories Act 2002.

The Queen and the two Houses of Parliament are together referred to as “The Queen in Parliament” though the Queen only attends on ceremonial occasions – principally the State Opening of Parliament. The State Opening is the occasion when the Queen’s Speech is read by the Queen from the throne in the House of Lords Chamber. Although it is referred to as “the Queen’s Speech” it is, in practice, a speech prepared for her by the Prime Minister and is a broadly worded statement of what the government plans to do in the forthcoming session of Parliament.

The question of Parliamentary Sovereignty (or Supremacy) is discussed below. The term "sovereignty" refers to where the supreme authority in a State lies. For example, the Constitution of the USA places "sovereignty" with "the People" whereas, in the U.K., essentially as a result of history, it is the Queen in Parliament which is sovereign and where the ultimate law-making authority is said to lie.

The two Houses of Parliament are named – for historical reasons – the House of Lords and the House of Commons. The House of Lords is an unelected chamber and comprises the Archbishops of Canterbury and York, a number of senior Bishops of the Church of England; a limited number of hereditary peers and the life peers. The “life peers” are the largest element in the House. Since July 2006, the House of Lords has been presided over by the Lord Speaker who is elected by the members of the House of Lords. Previously, the Lord Chancellor presided.

From time-to-time, reform of the House of Lords is raised - see, for example, February 2007 Reform Paper and July 2008 Reform. The government formed after the 2010 general election is also looking at how the Lords may be reformed.

Until the end of July 2009, the House of Lords had an “Appellate Committee” which was the highest court within the English legal system – see Courts Page 1. House of Lords decisions on the law bound all other English courts and tribunals. The Constitutional Reform Act 2005 created a Supreme Court of the United Kingdom which replaced the appellate committee of the House of Lords. Another consequence of the 2005 Act is that the Justices of the Supreme Court need not be members of the House of Lords whereas the former "Lords of Appeal in Ordinary" were. The first Justice to be appointed and not granted a peerage was Sir John Dyson - appointed in 2010.

The House of Commons is an elected Chamber with each Members being elected to represent a “Parliamentary Constituency.” Elections are held under a "First Past the Post" voting system though changes to the system are to be considered - e.g. an Alternative Vote (AV) system. The Commons is presided over by the Speaker who is elected by the M.P.s. There are currently 650 constituencies which break down as 533 from England; 40 from Wales; 59 from Scotland and 18 from Northern Ireland. Given that the House of Commons is an elected chamber, it is frequently argued that the Commons has greater democratic legitimacy than the House of Lords.

The boundaries of parliamentary constituencies are periodically reviewed by the Boundary Commission . There are separate Boundary Commissions for England, Wales, Scotland and Northern Ireland but all their websites may be accessed via – Boundary Commissions.

Prior to the Act of Union 1701, there were separate Parliaments for England and Scotland. The Act brought them together to form a Parliament for Great Britain. The Act of Union 1800 brought Ireland within the remit of what became, from 1801, the Parliament of the United Kingdom. In December 1922, the Irish Free State came into being and the modern Republic of Ireland finally came into being in December 1948. Only Northern Ireland remained as part of the United Kingdom.

When the government is proposing to alter the law in some way, formal legislative processes are frequently preceded by Green Papers or White Papers. These will assess public reaction to proposals by enabling interested persons or organisations to comment.

Proposed legislation starts life as a Bill. Most Bills are prepared by the government but there are procedures for individual members to raise a Bill – (referred to as “Private Member’s Bills”) – and, in certain circumstances, persons or bodies outside of Parliament may “promote” a “Private Bill.” Some Bills are subjected to Pre-Legislative Scrutiny by a parliamentary committee.

To become an Act of Parliament the Bill must normally pass both Houses and receive the Royal Assent. Technically speaking, Royal Assent could be refused. However, by constitutional convention it is never refused. Before the Parliament Act 1911 the House of Lords could have refused to pass any Bill. However, the 1911 Act has, in specified cases, limited the power of the House of Lords to a “delaying power.” The Parliament Act 1949 reduced further the period for which the House of Lords could delay a Bill. In recent years, the Parliament Acts have been invoked by the government to force through legislation – e.g. War Crimes Act 1991; Hunting Act 2004.

The Scotland Act 1998 created a Parliament for Scotland but this has “devolved powers.” Similarly, the Government of Wales Act 1998 created an “Assembly for Wales” (Cynulliad Cenedlaeithol Cymru) with devolved powers.

The Government of Wales Act 2006 amended the governmental arrangements for Wales. In addition to the Assembly there is now a "Welsh Assembly Government" (Llywodraeth Cynulliad Cymru) comprising up to 12 members of the Assembly who are an "executive" accountable to the Assembly. The Act also enabled primary legislation in certain areas to be enacted by the Assembly.

The position of Northern Ireland has been fraught with political difficulty. The original Parliament of Northern Ireland was in being from 1921 to 1972 when it was suspended and later abolished. Northern Ireland was then ruled from Westminster. The Northern Ireland (Elections) Act 1998 provided for an Assembly for Northern Ireland and the Northern Ireland Act 1998 provided for legislative powers, appointment of Ministers etc. After sitting briefly, the Assembly was again suspended in October 2002. That suspended assembly was dissolved in January 2007 and elections held in March 2007. The Northern Ireland Assembly was restored on 8^th May 2007.

Parliamentary Supremacy (Traditional View) - it has been said that Parliament is Supreme in that it may "make or unmake any law whatever" - (A.V. Dicey "Introduction to the Study of the Law of the Constitution" 1885). Dicey also asserted that - "Parliament is not bound by its predecessor". This is a good example of legal theory and the concept is increasingly questioned in modern times.

Clearly, the theory is based on the fact that, for the United Kingdom, there is no law-making body superior to the "Queen in Parliament." Hence, even if one Parliament makes a law, it is entirely possible for any subsequent Parliament to repeal that law.

It has to be recognised that, even if this is correct in legal theory, there are real practical constraints on the ability of a Parliament to make or change the law. For example, could it now be seriously suggested that Parliament could pass an Act to bring to an end the independence of Australia or of Canada or seek to reverse the profound effect of the USA Declaration of Independence of July 1776. Canada offers a useful example. Independence came to Canada gradually from 1867 to 1982. The Statute of Westminster 1931 provided that no Act of the United Kingdom Parliament would extend to Canada without the consent of Canada. In 1982, at the request of the Canadian government, the Canada Act 1982 was passed by the U.K. Parliament and this finally released any control of the U.K. Parliament over Canada.

In terms of the European Union, there remains no doubt that the U.K. could terminate membership - Mcarthy's Ltd v Smith [1979] 1 WLR 1189 per Lord Denning MR. Entry to the "E.U." - as it is now called - was by the European Communites Act 1972 passed by the U.K. Parliament. Clearly, the latter could pass an Act terminating membership. Whether to do so would be wise politically and economically are distinct questions to the issue of the legality of withdrawal.

An important and interesting case relating to the Parliament Acts 1911-49 is Jackson v Attorney-General [2005] UKHL 56. The case concerned a challenge to the Hunting Act 2004. However, there are significant statements relating to a possible changing view within the higher judiciary towards the doctrine of Parliamentary Sovereignty in its traditional form.

“The potential consequences of a decision in favour of the Attorney General are far-reaching. The Attorney General said at the hearing that the government might wish to use the 1949 Act to bring about constitutional changes such as altering the composition of the House of Lords. The logic of this proposition is that the procedure of the 1949 Act could be used by the government to abolish the House of Lords. Strict legalism suggests that the Attorney General may be right. But I am deeply troubled about assenting to the validity of such an exorbitant assertion of government power in our bi-cameral system. It may be that such an issue would test the relative merits of strict legalism and constitutional legal principle in the courts at the most fundamental level.

But the implications are much wider. If the Attorney General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation. For example, it could theoretically be used to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens. This is where we may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order. One must not assimilate the ECHR with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.”

“I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.”

In effect, Lord Steyn appeared to be asserting that because the judges invented the doctrine of parliamentary supremacy then they could change it. That has to be doubtful. Why would it be acceptable for unelected judges to be able to change a basic constitutional principle in this way?

In a modern democracy, the idea of parliamentary sovereignty is undemocratic and it should be replaced with a popular sovereignty in which sovereignty lies with the people. Such a change would (almost certainly) require the adoption of a formal written constitution based on a referendum asserting that sovereignty was, for the future, to rest with the people. It can be argued that parliamentary sovereignty is, in effect, a "power-sustaining" device enabling the executive to secure the passage of any law it desires no matter how draconian or illiberal. This argument carries force given that the executive branch of government has massive control over how Parliament conducts its business.

The reader is referred to the book by Richard Gordon QC - "Repairing British Politics: A Blueprint for Constitutional Change" (Hart Publishing, 2010). Gordon sets out a cogent case for abandonment of parliamentary sovereignty and its replacement by a form of popular sovereignty in which sovereignty lies with the people. He also sets out how a formal written constitution for the U.K. might be brought about.

Treaties – are basically agreements entered into between States or, sometimes, between States and certain International Bodies. The power to make a treaty rests, technically, with the Crown. In practice, it is the government which negotiates and agrees treaties. However, the treaty has no force in English law until Parliament enacts legislation to give it force.