Chapter 7 Guidance to answering the end-of-chapter questions

Parliamentary Supremacy: the theory

1. Who has ultimate power to decide on the law in the country?

  • Think about the powers of state: the legislature, the executive, and the judiciary. Which of these has the power to make law? And which of these has the final say (even if another power can make a type of law)?
  • What do you understand by the phrase ‘the Queen in Parliament’?
  • Read over the first paragraph in this chapter at p. 179 if you are not sure about either of these points.

2. From where does this body derive its power?

  • Is it possible to point to a legal document that confers legislative supremacy on Parliament? See p. 182 or the extract from Tomkins on p. 184.
  • Different theorists have put forward different ideas about where parliamentary supremacy is rooted. Can you recall what Jennings and Dicey said about this?
  • H.L.A. Hart suggested that parliamentary sovereignty is the UK’s rule of recognition. What do you understand by the term ‘the rule of recognition’? See p. 183.
  • What role do the courts play in recognising Parliament’s supreme law-making power? Check your answer against the summary on p. 216.

3. Is the power ever open to challenge? If so, under what circumstances and by whom?

  • Do you remember Dicey’s three main principles of parliamentary supremacy? See Table 7.2 on p. 184 for a quick reminder. Thinking about these three principles, may any person or body challenge Parliament’s supreme law-making power?
  • Is Parliament free to enact law on any subject matter it chooses? Or is it possible to challenge the power to make law on any subject matter? It might help to question where any such a challenge might come from: would it be legal or political in nature?
  • Even if the substance of a law made by Parliament cannot be legally challenged, what about the form it takes? In other words, are there any circumstances in which parliament is required to make law a certain way? Think back to the ways that the courts deal with contradictory Acts of Parliament and the discussion of ‘implied’ and ‘express’ repeal at pp. 192–193.

4. Can the body divest itself of the power and, if so, can it do so on a permanent or merely a temporary basis? What is our evidence of this?

  • Can you recall any examples of Parliament legislating for other countries? For example, what do you remember about the Canada Act 1982 or the Australia Act 1986?
  • Could a future Westminster Parliament attempt to regain this power? In other words, by passing these types of laws, has the Westminster Parliament restricted its ultimate law-making power forever?
  • Think about the difference between theory and practice here. What do you remember about the distinction between apparent ‘legal sovereignty’ and ‘political sovereignty’?
  • What have you understood about the Parliament Acts 1911 and 1949? Do these pieces of legislation prove that it is possible for Parliament to bind future parliaments in relation to the way it enacts future Acts of Parliament? If you are unsure, review pp. 197–201.