I recently wrote to the UK Parliament on the subject of sovereignty and the text on their website. While I did not get an answer to my questions, I did get a cut and paste reference on sovereignty, which is genuinely interesting and useful. I am reproducing it here for general reference.
Magna Carta
Only four of the 63 clauses in Magna Carta are still valid today – 1 (part), 13, 39 and 40. The parts of the Magna Carta which are still in force are set out on the British Library’s Magna Carta pages. These explain that “only three of those clauses remain part of English law. One defends the liberties and rights of the English Church. Another confirms the liberties and customs of London and other towns. The third is the most famous:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.”
As noted on the British Library’s website: “This clause gave all free men the right to justice and a fair trial. However, ‘free men’ comprised only a small proportion of the population in medieval England. The majority of the people were unfree peasants known as ‘villeins’, who could seek justice only through the courts of their own lords.”
You may be interested to read the Lords Library paper: A Brief History of the Magna Carta – House of Lords Library (parliament.uk)
The British Constitution
The United Kingdom is quite unusual in modern democracies in having no written constitution – that is, no single document comprising the rules of constitutional practice.
Neither does the UK have a “Bill of Rights” in the conventional sense, setting out the civil rights and freedoms of its citizens. The 1689 Bill of Rights does not amount to a written constitution or what is generally considered to be a modern bill of rights. Rather it was an historic statute that emerged from the “Glorious Revolution” of 1688-89, which culminated in the exile of King James II and the accession to the throne of William of Orange and Mary. Its intentions were: to depose James II for misgovernment; to determine the succession to the throne; to curb future arbitrary behaviour of the monarch and to guarantee Parliament’s powers vis a vis the Crown, thereby establishing a constitutional monarchy.
The 2009 Library paper on Bill of Rights 1689 – House of Commons Library (parliament.uk) sets out the historical background to the Bill and examines how its provisions have changed over time. Its role as part of the uncodified constitution of the United Kingdom is also discussed. [For more on the Glorious Revolution see: The Glorious Revolution – UK Parliament]
Parliamentary Sovereignty
Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.
The UK is unusual in that it has no single document embodying its constitution. Because of this, it is sometimes said that the UK has an “unwritten” constitution. In fact, the UK’s the fundamental rules of constitutional practice are enshrined in many individual documents: in various Acts of Parliament, in the common law, in judicial decisions, in parliamentary law and customs and in constitutional conventions. It is therefore more correct to say that the constitution is “uncodified”, rather than “unwritten”.
With a written constitution, it is generally easier to distinguish constitutional laws from the rest of the law. In the UK there is no strict distinction. In general, constitutional law deals with the distribution and exercise of the functions of government, as well as the relations of the government authorities to each other and to the individual.
The Source of Parliamentary Sovereignty
The source of Parliamentary sovereignty is a matter of long-running academic dispute. This disagreement even extends to (now former) members of the judiciary, as illustrated by the opinions handed down in R (Jackson) v Attorney General [2005] UKHL 56. Some regard it as a legal rule created by the common law (i.e. recognised and changeable by judges, see the judgments of Lords Hope and Steyn in that case), whereas others argue it is instead in a sense a foundational principle of the UK constitution that cannot be altered by the judiciary acting alone (see Lord Bingham/Tom Bingham’s book, listed on the reading list below).
There are several different accounts of the origins of Parliamentary sovereignty.
On an historical analysis, the doctrine can be traced back to the institutional writings of Edward Coke (in the 16th century) and William Blackstone (in the 18th century), in the context of the English constitution. It emerged in contrast to the doctrine of the Divine Right of Kings, under which Monarchs occasionally sought to argue that absolute constitutional power vests in the Crown.
On a statutory analysis, Parliamentary sovereignty might be traced back, at least, to the Bill of Rights [1688] (in England) and Claim of Right Act 1689 (in Scotland). Those Acts were passed in the context of the Glorious Revolution, which settled the dispute over sovereignty between the Crown or Monarch (later the executive or government) and the Legislature (parliament). Both Acts assert many of the privileges of Parliament, including freedom of speech for its members. The Bill of Rights, in Article IX, also prohibits the courts from questioning any proceedings in Parliament. This statutory rule is important for upholding the legislative supremacy of Acts of Parliament.
The modern orthodox formulation of Parliamentary sovereignty is usually attributed to AV Dicey, who popularised the concept in the early 20th century. See for example, AV Dicey, Introduction to the Study of the Law of the Constitution, 8th edition, Macmillan, 1915, page 3:
“Parliament means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the “King in Parliament,” and constitute Parliament.
The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
The existence and extent of Parliamentary sovereignty (and by implication, its source) is disputed in the context of Scotland. You may wish to read Lord Cooper of Culross’ judgment in MacCormick v Lord Advocate 1953 SC 396 to find out more about those issues.
Our constitutional expert in the House of Commons Library has suggested the following academic texts and resources on this topic that you may find it useful:
- HWR Wade, ‘Sovereignty: Revolution or Evolution?’, 1996 LQR pp. 568-575
- Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy, Oxford Scholarship, 2001
- Adam Tomkins, Public Law, Clarendon, 2004 (especially Chapter 4)
- Tom Bingham, The Rule of Law, Penguin Books, 2010 (especially Chapter 12)
- Ian McLean, What’s Wrong with the British Constitution, Oxford University Press, 2012 (especially Chapters 1, 3 and 6)
- Turpin and Tomkins, British Government and the Constitution, Cambridge University Press, 2012 (especially Chapters 1-3 and 9)
- Bradley, Ewing and Knight, Constitutional and Administrative Law, Pearson, 2018 (especially Chapter 3)
- Elliott and Thomas, Public Law, Oxford University Press, 2020 (especially Chapters 2, 3 and 6)
Further reading on constitutional affairs
- Hilaire Barnett, Constitutional and Administrative Law, 11th edition, 2015, Routledge – Taylor & Francis Ltd
- AW Bradley and KD Ewing, Constitutional and Administrative Law, 15th edition, 2011, Longman
- Alex Carroll, Constitutional and Administrative Law, 8th edition, 2015, Longman
- Paul Jackson and Patricia Leopold, O Hood Phillips and Jackson, Constitutional and Administrative Law, 8th edition, 2001, Sweet and Maxwell
- R Brazier, Constitutional Practice, 3rd edition, 1999
- S A de Smith & R Brazier, Constitutional and Administrative Law, 8th edition, 1998
- C Turpin, British Government and the Constitution, 2011
- Dawn Oliver, Constitutional Reform in the UK, 2006, Oxford University Press
- Vernon Bogdanor (ed), British Constitution in the twentieth century, 2004, Oxford University Press
Finally, you may also be interested in this UK Human Rights blog post: Magna Carta and Freemen on the Land – UK Human Rights Blog
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