Supremacy of Parliament

Conservative peer Lord Jenkin of Roding has tabled a couple of important amendments to the Parliamentary Standards Bill which assert Article IX of the Bill of Rights and Parliamentary supremacy, “notwithstanding any provision of the European Communities Act 1972, the European Convention of Human Rights or the Human Rights Act”. I understand this has official Conservative party backing. That’s a good move in view of the nature of this legislation.


  1. eeyore
    July 15, 2009

    My understanding (admittedly amateur) was that its own supremacy is one of the few things Parliament does not have supremacy over. Others include Magna Carta (honoured now more in the breach than the observance) and the Bill of Rights. These constitutional fundamentals are supra-parliamentary; Parliament cannot give away what it does not own. Can any of your learned readers enlighten us further?

    1. Denis Cooper
      July 15, 2009

      I’m short of time, so I’ll just say that ultimately it must come down to who controls the armed forces, or potentially who controls the most powerful armed forces. While Parliament can still decide to remove any judge who denies its legal supremacy, and can still use the police and then the army to enforce his removal if that proves necessary, then judges will uphold the legal supremacy of Parliament for at least as long as they believe Parliament still insists on its legal supremacy. However in the Metric Martyrs case Judge Morgan decided that Parliament had voluntarily surrendered its supremacy to the EEC in 1972, and he had to be over-ruled by Lord Justice Laws; so clearly there’s the possibility of judicial drift which could eventually lead to a constitutional crisis.

  2. Derek W. Buxton
    July 15, 2009

    Is it not that “Parliament is sovereign in it’s own house” and as such represents the people who are sovereign, full stop. Parliament has neglected the role it should play, which is to hold the executive to account. I also thought that the “Bill of Rights” specifically prohibits the giving away of sovereignty to foreign rule. It was presumably to prevent a Catholic Ruler taking his orders from the Pope but since that was not specific it would apply to accepting the rule of the EU. The makings of an interesting debate for those interested in our Constitution. Any offers?


    1. Denis Cooper
      July 16, 2009

      Well, you can read it here with modern English spelling:

      or here on the UK Statute Law Database in its original form, but supposedly indicating which parts have been expressly repealed:

      I think the passage you have in mind is in the second oath to be taken by “all Persons of whome the Oathes of Allegiance and Supremacy might be required by Law”, and it related to ecclesiastical or spiritual, rather than secular, authority.

  3. Carl Gardner
    July 15, 2009

    In the most fundamental sense you’re right, Eeyore. The most basic rule of our constitution – the sovereignty or supremacy of Parliament – is a common-law principle. You won’t find it in statute and of course that makes sense, because if statute weren’t sovereign anyway, a statutory rule saying it was sovereign would not itself be sovereign. Does that make sense?

    It’s important to be clear that Parliament has not given away its sovereignty at all in any real constitutional or legal sense – the ECA 1972 and the Human Rights Act can both be repealed by Parliament. I agree of course it is meaningful to talk in a more general political sense of our membership of the EU having limited Parliamentary sovereignty, in the sense that Parliament cannot maintain that legislation and at the same time successfully legislate contrary to EU law; and in the sense that it provides for laws from overseas to override UK Acts. But it always has what William Hague has called “ultimate Parliamentary sovereignty” to repeal the ECA and leave the EU. Actually, that’s just ordinary Parliamentary sovereignty if you think about it.

    I think this “notwithstanding the ECA 1972…” stuff is a waste of time. Bill Cash kept going on about that form of words in discussions of the Lisbon Treaty if I remember right. I suppose some wording like that just might work to protect one piece of legislation from EU law – though even that is doubtful. If MPs want their legislation systematically to override EU law they need to amend the ECA 1972, not cook up clever forms of words to go in new bills.

    As for Lord Jenkin’s amendment, what it says (as far as supremacy is concerned) is that “nothwithstanding… [the ECA, ECHR and HRA]… nothing in this Act shall affect or be construed by any court in the United Kingdom as affecting the supremacy of the United Kingdom Parliament.” But how would the Bill affect Parliament’s supremacy anyway? I don’t understand what Lord Jenkin is trying to achieve, but I don’t think it relates to Parliament’s ability to make or unmake any law – which is what its sovereignty (or supremacy if you prefer) is about.

    1. Denis Cooper
      July 16, 2009

      But even while we’re in the EU, Parliament still remains the supreme legal authority for the UK and therefore it can legislate contrary to EU law if it so chooses, and at present courts in the UK would give the law passed by Parliament priority over the EU law.

      The sole proviso is that it must be clear to the court that Parliament intended to over-rule the EU law, rather than having done so inadvertently.

      Hence Bill Cash’s formula “notwithstanding the European Communities Act 1972 …”, which he spoke about during this debate in 2006.


      The relevant section, about New Clause 17, starts at Column 749 with JR speaking.

      Of course it’s possible that if Parliament disapplied some aspect of EU law in that way then other EU countries or the EU institutions might object that the UK was in breach of the treaties, but that would not prevent Parliament doing so and leaving the government to find a political solution.

      Then again, there may be no objections; for example it might be met with total indifference across the EU if Parliament legally disapplied the laws enforcing metrication – rather than leaving it to a Minister of the Crown to illegally instruct trading standards officers not to apply them.

      The very first Article of the Bill of Rights:

      “That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.”

      But as I mentioned above, there is the possibility of judicial drift on the question of the supremacy of Parliament.

      To quote Martin Howe QC, page 19 of his booklet analysing the draft EU Constitution:

      “However, the doctrine of the supremacy of Parliament is not written in stone, but rests on continued judicial acceptance of its validity. There have been arguments by academic lawyers that the European Communities Act 1972 created a wholly new constitutional order which superseded the sovereignty of Parliament. An argument was advanced by prosecuting counsel in the Metric Martyrs case that the importation of Community law via the 1972 Act imported the ECJ doctrine of primacy and so inhibited Parliament from repealing EC law by implication in a later Act. That argument was rejected by the Court, but the fact that leading counsel for a public authority should think it worth advancing suggests that the doctrine of the supremacy of Parliament is not quite so certain and secure as one would wish.”

      Incidentally the German constitutional court takes a position which is analogous to that of the UK courts:

      “Brussels expresses concern at Germany’s court judgement”

      “In addition, the judges ruled that Germany’s highest court should have final say on interpretation of EU law allowing it to overturn judgements by the bloc’s highest court, the European Court of Justice (ECJ).”

      1. Carl Gardner
        July 18, 2009

        I completely agree with you about Parliament’s legislative supremacy being intact. But a “notwithstanding” clause in a new Bill just creates a direct conflict with s2(4) ECA 1972, which the courts would have to resolve by seeing one as subject to the other. It might work, yes; the House of Lords might think you can in effect amend the ECA “non-textually” in that way. But you can’t be 100% confident they would, because you’d have left the ECA untouched, and it clearly says (I paraphrase) “all enactments passed or to be passed” are subject to EC law. You’d have created a legal headache.

        A legal technique that would give clear instructions to the judiciary, and that you could be confident of working, would be actually to amend the ECA 1972. So, in whatever new Bill you want to protect, keep your unreliable “notwithstanding…” if you like, but also include an amendment to s2(4) of the ECA to make an exception for your new Bill. Those would be the “magic words” Bill Cash is after.

        1. Denis Cooper
          July 19, 2009

          Not according to Bill Cash, speaking to his proposed New Clause 17 for the Legislative and Regulatory Reform Bill, aka “the Abolition of Parliament Bill”, in May 2006:

          “In my legal opinion, it would be impossible to seek to override section 2 of the European Communities Act merely by order. However, I can assure the hon. Gentleman that the mechanism that I have employed in my new clause has been before parliamentary counsel and cleared for this purpose. It says

          “notwithstanding the European Communities Act 1972”,

          and refers to any order repealing, amending or replacing other legislation that has been introduced under section 2 and is therefore binding on this Parliament only by virtue of the 1972 Act. We could not change that by order, but if the authority were given by primary legislation, using the words

          “notwithstanding the European Communities Act 1972”,

          that would attract the legislative supremacy of the primary legislation that the Bill before us would then provide.”

          “The mechanism to enable the constitutional procedure to have the effect that I desire is contained in the new clause. I think that the hon. Member for Cambridge (David Howarth) understood that. We need the backing of primary legislation, using the magic words,

          “notwithstanding the European Communities Act 1972”,

          and then referring to the fact that it shall be binding in legal proceedings in the United Kingdom. That provides the mechanism whereby the judiciary are under a duty to give effect to that latest Act of Parliament.”

          Curiously it seems that Bill Cash had somehow managed to get official Tory support for this amendment, but in March 2008 he didn’t get official support for his New Clause 9 to affirm and defend the supremacy of Parliament against possible attack by Declaration 17 attached to the Lisbon Treaty.

          Apparently Dominic Grieve incorrectly advised that it would “create a constitutional contradiction” – obviously incorrectly, as EU law has no force in this country other than that allowed to it by Parliament, and Parliament can decide that it will not consent to a certain EU law taking effect.

          I’ve no doubt that eventually this issue will have to be re-visited. Eg next year Cameron may find that he has no alternative but to seek Parliamentary authorisation to nullify EU measures designed to destroy the City of London, whether the Brown government had agreed to them or it had been out-voted.

  4. Freeborn John
    July 15, 2009

    Personally i do not have anything against the ECHR. There is merit in putting basic issues of human rights beyond the short-term majority in parliament who do have it within their power to turn the coercive apparatus of the state against citizens if so minded. In theory this protection could be achieved by a UK Bill of Rights but with no distinction between regular and constitutional law in the UK there is nothing to stop the government of the day repealing a Bill of Rights when we most need it. Therefore only binding commitments entered into via a treaty such as the European Convention on Human Rights can afford a real protection for the human rights of British citizens.

    What cannot be accepted though is that the decision-making across the entire range of politics is put beyond the reach of the short-term majority in Westminster, which is was the successive treaties on European Union will result in.

    1. [[NAME EDITED]]
      July 16, 2009

      If you believe there are such things as human rights, that is.

  5. SJB
    July 15, 2009

    Sir Patrick Mayhew MP, as Attorney-General, set out the relationship between national law and Community law in a statement he made about 20 years ago.

    “When a country joins the Community it is obliged to reconcile its constitution, whether written or unwritten, with Community membership. It has to provide for the application of Community law within its territory, which means providing for Community law to have supremacy over any conflicting provisions of its own national law.”

    I would be surprised if Dominic Grieve dissents from Sir Patrick’s opinion.

    Furthermore, is parliamentary sovereignty such a good idea? For example, if Labour enacted primary legislation that suspended elections indefinitely then I doubt the opposition parties would endorse the measure.

    1. Denis Cooper
      July 16, 2009

      Except that it was not for a member of the government, even the Attorney-General, to determine the relationship between national law and Community law.

      According to Lord Justice Laws in the 2003 Metric Martyrs case:

      “59 … Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty. Accordingly there are no circumstances in which the jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself.”

      Nevertheless, I believe that Parliament should take every opportunity to remove any doubts about its legislative supremacy on order to prevent future judicial drift in the wrong direction.

      1. SJB
        July 16, 2009

        The Attorney-General was not determining the law, Denis, but stating it following the ECJ judgment in the Factortame case.

        In the Metric Martyrs case, Laws LJ introduced the concept of constitutional statutes, like the European Communities Act 1972 (“ECA”), and ‘ordinary’ statutes (e.g. Crossbows Act 1987). A constitutional statute, as might be expected, is more potent that the ‘ordinary’ variety so, according to Laws LJ (see para 69 of your link), it cannot be impliedly repealed. Therefore, the ECA would have to be expressly repealed by Parliament in order to remove the supremacy of Community Law. None of the three major parties is proposing to repeal the ECA.

        There are no doubts about Parliament’s legislative supremacy. The question is whether the courts will always enforce their laws; e.g. The Suspension of Elections Act 2010.

        1. Carl Gardner
          July 16, 2009

          The reason your dispute is going nowhere is that what Sir Patrick Mayhew said is entirely compatible with traditional Parliamentary sovereignty.

          EU law requires that it be supreme over all national laws. UK law reflects this: section 2(4) of the European Communities Act 1972, though obscurely drafted, has the effect of making EU law supreme over all Acts of Parliament – except the ECA 1972 itself. The UK has therefore successfully reconciled its legal system to EU law, and the fact that Parliament has achieved this (and the Factortame case proves it did so successfully) shows the British constitution is entirely compatible with the requirements of EU law. And of course Parliament could repeal the ECA 1972.

          Parliamentary sovereignty means Parliament can “make or unmake any law whatsoever” to paraphrase the great constitutional lawyer Dicey. The ECA 1972 shows Parliament can indeed make any law; it’s also quite clear it can “unmake” it by repealing it.

          Parliamentary sovereignty and EU law supremacy coexist quite happily, in fact. Other countries, notably Germany, have much more difficulty reconciling EU law with their constitutions.

        2. Denis Cooper
          July 17, 2009

          I’m not anticipating that there’ll be a Suspension of Elections Act 2010, SJB.

          However if such an Act was passed, then no doubt the courts would uphold it – in the same way that they would have upheld the previous Acts to postpone elections which were passed during both World Wars, if anybody had sought to challenge them.

          As you’re probably aware, under the Parliament Acts the Lords would still be able to veto the Bill.

          On the main issue, what you mean is that the Attorney-General was repeating the law as supposedly determined by the ECJ; but the ECJ could no more determine our law than he could, except as authorised by Parliament.

          To quote from Lord Justice Laws above:

          “Thus there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom”.

          Furthermore, as:

          “Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA.”

          it’s clear that if Parliament expressly legislated to disapply a specific EU law – which would partly, but not wholly, repeal the ECA – then the courts would uphold the will of Parliament and not accept the supremacy of EU law in that instance.

          Hence Bill Cash’s formula “notwithstanding the European Communities Act 1972 …”, to make it clear that Parliament intended to repeal the ECA not wholly, but to the extent necessary to disapply a specific EU law.

        3. SJB
          July 17, 2009

          Yes, I should have made it clear that The Suspension of Elections Act 2010 was a fictional example 🙂 Let’s assume that the House of Lords did not consent to the Bill, so the House of Commons used the provisions of the Parliament Acts 1911 & 1949 to get the legislation on the statute book, as it did with the Hunting Act 2004. My contention is that the courts would not uphold such an assault on democracy in peacetime, although I take your point that things might be different if we were at war and the opposition parties consented to a postponement.

          I’ll deal with the EU aspect tomorrow or Sunday.

        4. SJB
          July 18, 2009

          Let me now deal with the EU element. Certain provisions of The Merchant Shipping Act 1988 – the subject matter of the Factortame legislation – were held to have breached EU law because they discriminated against citizens of other Member States. The legislation was clearly the will of Parliament but the Law Lords nevertheless disapplied the relevant provisions following the ECJ’s judgment. Let us assume the same provisions are reintroduced but this time with the “notwithstanding the ECA 1972” clause. Professor Dashwood, in his oral evidence to the European Scrutiny Committe on 14 May 2008, gave Bill Cash an idea of what would happen.

          (see Q13 & Q14)

          State liability is not cheap: the UK had to shell out £81 million in damages (including interest) + unknown sum for legal costs.

          (Col WA120)

        5. Denis Cooper
          July 19, 2009

          SJB, a Bill to prolong the maximum duration of Parliament beyond five years was excluded from the scope of the Parliament Act 1911:

          “If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons …”

          The Lords made a mistake by not insisting on the insertion of words such as “or a Bill containing any provision to amend any provision of this Act”, and so they ceded to the Commons the power to unilaterally amend the 1911 Act using its own provisions.

          As the Commons did through the 1949 Act:

          “Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Commons, in this present Parliament assembled, in accordance with the provisions of the Parliament Act, 1911, and by authority of the same, as follows:-”

          and as they could do again, either to further shorten or effectively eliminate the period of delay that the Lords can impose on a Bill, or to suspend elections.

          But the Labour government has now left it too late to attempt either of those things, even under the 1949 Act.

        6. Denis Cooper
          July 19, 2009

          As I understand, the Law Lords gave “interim relief”, but the Factortame case never came to a final judicial conclusion because the government caved in and got Parliament to change the UK law before the case went back to court.

          I think Bill Cash was well aware of various possible consequences if Parliament nullified some aspect of EU law, before having one of them explained to him by Professor Dashwood.

          Ultimately the answer could be that the UK courts ignored a ruling from EU’s Court of Justice – as would the German federal constitutional court, if it found that an EU law was infringing the German Basic Law – and the UK government would either not pay any fines, or would pay them but then deduct them from the UK’s contribution to the EU budget.

          If any other member states wanted to pursue the quarrel further, rather than seeking a political settlement, then let them come across with their army and enforce their will on our Parliament.

          You need to remember that while the Crown can make a treaty with foreign powers, that treaty can’t bind our Parliament if it affects domestic law – see that first article of the Bill of Rights – and while one Parliament can authorise the domestic legal consequences of a treaty, that Parliament can’t bind its successors.

          Basic prior facts of our constitution which were very well known to the governments of the other EEC countries, when they agreed to UK accession in 1972.

  6. alan jutson
    July 15, 2009


    Perhaps I am alone here, but I am totally confused as to what exactly Parliament now stands for, or indeed can do, or is responsible for.

    This Labour Government it would seem, has not continued with any of the considered normal forms of protocol as used in the past with regard to debate for many of the Laws it has passed, or Taxes it continues to raise.
    But they still I assume stand.
    If another future Government thought they would continue in a different manner, then I assume any Laws/Taxes that they passed would also stand.
    In the absence of any written constitution which would outline such powers, it would seem that an elected Government can do as it likes when in power, without restraint, should it so choose to do.
    Never know one day we may find ourselves in a war, without proper debate, consultation or even a vote.
    We may even find (heavens above) that we are being represented by a Prime Minister who cannot even tell the truth and cannot be sacked.
    We may even get unelected people shoehorned into positions of power who cannot be questioned by elected members.

    Can you clarify in simple language exactly what Parliament now stands for, because I do not think I am alone in being confused.

  7. Robert Eve
    July 15, 2009

    Far better to leave the EU and be done with it.

  8. Mike Stallard
    July 15, 2009

    I simply do not understand any of this.
    Meanwhile, the European Flag is hoisted at the Opening of the European Parliament and the European National Anthem is played. I understand that there is quite a lot of European diplomatic activity round the world at the moment. There has also been quite some discussion about the next President of Europe too.
    So, Lisbon is being brought in quite illegally whatever the lawyers say.

  9. Acorn
    July 15, 2009

    There is no such thing as “supremacy of parliament”, it is a myth. The correct phrase is “supremacy of the executive”. Along with this comes the free added feature of a parliamentary majority. Hence for practical purposes, parliament is redundant with its majority caucus beholden to the executive, to which it has umbilical connection; incapable of independent action; voting lobby fodder.

    1. Denis Cooper
      July 16, 2009

      Until Parliament and the executive disagree; then the executive finds that all its powers derive from Parliament, apart from those which still derive from the Crown as matters of Royal Prerogative, and at present that is what the courts will also say.

  10. eeyore
    July 15, 2009

    I’m deeply obliged to all your commenters, and to you, Mr Redwood, for starting this very lively hare. To trespass further on your patience: a linked question, topical at the moment in the light of proposals for an elective House of Lords, is what right MPs have unilaterally to give away any part of their ancient duty exclusively to represent us Commons?

    As a reductio ad absurdum, we might imagine a House of idle and scoundrelly MPs who vote, in the exuberance of their fecklessness, to devolve all their representative functions on the inmates of Pentonville prison, and devote themselves exclusively to filling in their expenses. Could they really do this?

    They haven’t jibbed at handing some of their basic responsibilities (for lawmaking and tax-imposing) to Brussels. Nor, one fears, will they jib at handing another (representation) to a new-style House of Lords at the bidding of an unelected and discredited PM.

    At the lowest, is it not the case that if representation of us Commons is to be shared between an MP and an elected “Lord”, then an MP’s pay should be cut because his responsibilities have been, by his own wish and vote, materially diminished?

  11. Adrian Peirson
    July 15, 2009

    However they spin it, we all know in our Hearts what they are up to and it’s Treason.
    They also knew long ago we would never vote for the surrender of sovereignty, that is the purpose of mass movement of people throughout the EU, it is to destroy borders and national identity.
    This is what the Soviets did in the USSR, moved people around to erdicate National Identity.
    I’m quite sure ethnic cleansing was illegal, how soon before someone comes to oir rescue to save us from the EU and Whitehall like we did in Serbia.

  12. Anne Palmer
    August 4, 2009

    Your Blog was pointed out to me rather late in the day to make a comment, however, because I have read every word of thses excellent comments, I hope you do get to read mine.

    Although there are some very interesting and important points too, I have to say that the one that attracted me the most was one by Denis Cooper at 2.35. It was the most important one to me although I do go along with many of the legal and constitutional angles and the repealing of the European Communities Act 1972. However I cannot see any of the three political Parties ever doing that.

    To me the whole legal angle sinks into oblivion if the EU AGREEMENT SOFA directive (Official Journal of the EU, C 321/6 dated 31.12.2003.) becomes active and or article 5 of the Treaty of Velson is activated and the EU sends in the Eurogendarmerie, or perhaps both together. Our Government has agreed to the whole of SOFA, in total. That combined with the NEW External Action Article 188R (Article 188 R is a new article which introduces a new and wide-ranging “solidarity clause” which compels the Member States to act together in the event of a natural disaster or a terrorist attack.) and I think perhaps we would be trapped probably unable to fight our way out because who would be in command of our forces? Plus, we have already reduced them to ‘blend in’ with the EU forces too. We haven’t got enough or good equipment now even while our troops are away fighting and desperately need better and more supplies.

  13. Malcolm
    August 11, 2009

    Can I ask why it’s acceptable to have a frequent commenter on this site called (name supplied) Is racist and offensive language considered OK on this blog?

    Reply: No such language is not approved by this site. If it appeared in text submitted I would edit it out.

  14. Malcolm
    August 11, 2009

    There’s an example of it on this page – in reply to this comment:

  15. Malcolm
    August 11, 2009

    Also, there are lots of examples on the site. Here’s a google search that highlights them: And there are many examples of it on the site – here’s a search from google:

  16. Malcolm
    August 11, 2009

    Hi, I see you’ve taken them off. Good to see. Cheers.

    Reply: Yes, I found out how to delete addresses and did so.

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