International Journal of Constitutional Law
The afterlife of parliamentary sovereignty
Subject: Constitutional law. Other related subjects: European Union
Keywords: EU law; Parliamentary sovereignty; Supremacy of EU law
Legislation: Parliament Act 1911
Parliament Act 1949
European Communities Act 1972
Case: R. v Secretary of State for Transport Ex p. Factortame Ltd (C-213/89)  E.C.R. I-2433 (ECJ)
This note proceeds in four stages. The first part of the paper outlines the nature of Parliamentary sovereignty. The second part describes its death in the pivotal case of Factortame. The third part recounts the afterlife of Parliamentary sovereignty; though no longer part of the United Kingdom's Constitution, it still continues to attract the attentions of scholars, who, knowingly or unknowingly, apply the label to new constitutional phenomena. The paper concludes by reflecting on the problems this can cause.
*I.J.C.L. 145 1. Parliamentary sovereignty
Much has been written about Parliamentary sovereignty and much about Parliamentary sovereignty is open to debate. Despite this, before 1991, there was broad agreement about its content. Parliamentary sovereignty was a legal rule that specified the legal force of statutes. The rule could be expressed in deceptively simple terms:
Whatever the Queen-in-Parliament enacts as a statute is law.1
A few inferences can be drawn from this rule. First, no institution within the Constitution has the capacity to declare that a statute is beyond the power of Parliament. Once the Court--or anyone else operating within the legal order--has concluded that a document is a statute, it is obliged to treat that document as legally binding, unless it has been repealed by later legislation.2 Second, when there is conflict between an older and a newer statute, the resolution of this conflict must give legal force to the newer statute--a resolution which may require a court to find that elements of...