Constitutional Law Of UK: Doctrine Of Parliamentary Supremacy

Parliamentary Supremacy

Describe about the constitutional law of UK.

The government and the Parliament of the UK is a democratic one. The UK Parliament consists of two houses known as the House of Commons and the House of the Lords. Passing of a bill in the Parliament has to get the approval of both the houses and after receiving the Royal Assent, it becomes an act of the Parliament. An act passed in such a manner is binding on the people and authorities who are concerned with the law[1]. As a matter of general legal parlance, subsequent acts replace and repeal the existing ones. The main reason behind this principle is that subsequent acts are passed with amendments that are required in the contemporary world. However, as the UK does not have an unified and coded constitution, the Parliament of the country works mainly based on the principle of an important Doctrine called the “Doctrine of Parliamentary Supremacy”[2]. According to the Doctrine, Parliamentary sovereignty is the key element of the UK constitution and this makes the Parliament the Supreme Legal Authority in the UK. In the given case scenario, an act was passed (The Marriages Act 2016) by the existing Parliament and the provisions of the act stipulated that the act shall prevail over and above any other subsequent act in this regard. It’s provisions also provided that the act can only be amended and repealed by 80% majority of both the Houses. At a later stage, there was a change in the government and the Family Law Act 2021, which made amendments in the provisions of the existing act, replaced the Marriages Act. This essay will try to bring out the legality and validity of such a change in the context of the mentioned Doctrine.

Parliamentary supremacy generally means that the legislative body is supreme and above all the other government institutions in UK. This includes the executive and judicial bodies and branches of the government. The Doctrine of Parliamentary supremacy gives power to the Parliament of the country in such a manner that when a law is passed by the Parliament it cannot be challenges in any court of law. The simple logic behind this is that the Parliament is composed of two houses known as the House of the Commons and the House of the Lords and the House of the Commons is constituted by representatives of the common people who have been elected in a democratic manner by the people of the country[3]. Therefore, a certain trust and responsibility is reposed on them that they will act in a just and equitable manner that will not be against any public policy or public interest. This faith of the common people gives the House of Commons their power and it is accepted that whatever decision they take will be in the good interests of the common people[4]. With this fact as the base, it has been provided in the Doctrine that the laws passed in the Parliament cannot be challenged in any legal forum.

Importance of the Doctrine

The Doctrine has been in operation for a long time and as the UK does not have a written and codified constitution as some other developed countries, the Doctrine has become an important source of law in the country. The Doctrine establishes a relation between the Parliament and the courts of the country. It provides answer to a very sensitive question: Is the Parliament supreme or the Courts? It has already been said and proved that the Parliament holds the supreme power. In other words, the Parliament has the right to make and repeal any law under the constitution of the UK and no person or authority or a recognized body in England has the right to override or set aside the laws passed by the Parliament[5]. Another very important point stipulated by the Doctrine is that no Parliament is authorized to pass any law that future Parliaments cannot change or amend and it is only the Parliament that can change or reverse a law passed by the Parliament. In simple words, a law passed by a Parliament can only be amended or repealed by another Parliament or the same one. Here, it can be seen that the jurisdiction of the courts have been restricted by the Doctrine and they only have the power of judicial interpretation of the laws passed by the Parliament. It has also been provided that a law passed by a Parliament can be changed by a subsequent Parliament by a simple majority (the minimum requirement of a Parliament to pass a bill). Consequently, it can be seen that there is no fundamental constitutional law that the Parliament is unable to change. Thus, the courts are left with just one function that is to oversee that a law is passed in a proper manner in the Parliament before receiving Royal Assent[6].

Some important case laws in this regard Canon Selwyn (1872) [Ex-Parte] and Pickin vs. British Railways Board (1974), where a subsequent law passed by the Parliament amended the provisions of the Enrolled Bill Rule that was passed by the earlier Parliament. Some other cases where the judiciary failed to question the validity of an act passed by the Parliament are Cheyney vs. Conn (1968) and Manual vs. AG (1982)[7]. The situation changes a bit with the inclusion of the UK in the European Union (EU). With the passing of the European Communities Act in 1972, the whole scenario changes a little. According to the laws of the EU, the statutes of the EU will always prevail over national laws. In cases where there is contravention between national and EU law, the laws of the Union will override the national laws. This supremacy of the EU law was provide in the Act of 1972[8].

EU Law and Parliamentary Supremacy

In the given case scenario, section 1 of the Marriages Act stipulated that only those people who have attained the age of twenty-five be vested with the right to marry. At a later stage, the new government passed the Family Law Act repealed this provision and provided that people who have attained the age of eighteen will be able to marry. This subsequent act was passed with a simple majority in the Parliament and this was not acceding to the provisions of the earlier act that stated that an 80% majority is required. Here the Doctrine of Parliamentary supremacy comes into play. According to the Doctrine, a Parliament cannot pass a law that future Parliaments cannot change[9]. This Doctrine holds immense importance in the legal system of the UK. Irrespective of the situation, the provisions of the Doctrine will always prevail over and above all the laws passed by any Parliament in the UK[10]. According to the said provision of the Doctrine, the section 3 of the Marriages Act will have no constitutional validity. This is due to the fact that a subsequent Parliament of the new government is allowed to change or amend any laws passed by the earlier Parliament in a simple manner an act is passed in the Parliament. In the words of the Doctrine, it can be said that the provisions of the Marriages Act can always be amended by a subsequent Parliament as the case scenario stipulated[11]. The amendments brought about by the Family Law Act are valid and will hold constitutionally implementable. Therefore, in light of the above discussions, it can be said that Henry and Ann will be allowed to enter into the holy sacrament of matrimony since they have attained the age of eighteen years in the year 2024.

Conclusion

The UK does not have an unified and codified constitution. In essence, the whole country is dependent on the laws and statutes passed by the Parliament. The Parliament in UK holds the ultimate and supreme power and this power of the Parliament has been provided to it by the Doctrine of Parliamentary Supremacy. According to the Doctrine, the Parliament has the power to make and change laws and any individual or body cannot challenge the laws passed by the Parliament in any court of law. The Parliament alone holds the power to change or amend any law passed by it or by any previous Parliament[12]. The Doctrine provides that no Parliament can pass a law that a subsequent Parliament cannot change. Therefore, in the given case, the provisions of the Marriages Act that state that the law cannot be repealed by any subsequent act cannot be held as constitutionally valid. Further its provisions stipulating that a majority of 80% of both the houses will be require to amend or repeal the act will also be invalid in the light of the Doctrine as it provides power to a subsequent Parliament to change any provision of an existing law. Thus, the change brought about by the Family Law Act will be valid and applicable to everyone. Lastly, the changed provisions will allow Henry and Ann to get marries as the new law states that a person can marry if he/she attains an age of eighteen.

References

'Bills & Legislation' (UK Parliament, 2016) <https://www.parliament.uk/business/bills-and-legislation/> accessed 23 March 2016

Dicey, Albert Venn. The law of the constitution. Vol. 1. OUP Oxford, 2013.

Gordon, Michael. "The UK's Fundamental Constitutional Principle: Why the UK Parliament Is Still Sovereign and Why It Still Matters." King's Law Journal 26.2 (2015): 229-251.

Gordon, Michael. Parliamentary sovereignty in the UK constitution: Process, politics and democracy. Bloomsbury Publishing, 2015.

Hardt, Sascha. Parliamentary immunity: a comprehensive study of the systems of parliamentary immunity of the United Kingdom, France, and the Netherlands in a European context. Diss. Maastricht University, 2013.

Heywood, Andrew. Essentials of UK politics. Palgrave Macmillan, 2015.

'House Of Commons' (UK Parliament, 2016) <https://www.parliament.uk/business/commons/> accessed 23 March 2016

'House Of Lords' (UK Parliament, 2016) <https://www.parliament.uk/business/lords/> accessed 23 March 2016

'Making Laws' (UK Parliament, 2016) <https://www.parliament.uk/about/how/laws/> accessed 23 March 2016

'Parliament Supremacy | Law Teacher' (Lawteacher.net, 2016) <https://www.lawteacher.net/free-law-essays/constitutional-law/parliament-supremacy.php> accessed 23 March 2016

'Parliamentary Sovereignty' (UK Parliament, 2016) <https://www.parliament.uk/about/how/sovereignty/> accessed 23 March 2016

'Passage Of A Bill' (UK Parliament, 2016) <https://www.parliament.uk/about/how/laws/passage-bill/> accessed 23 March 2016