Introduction
The United Kingdom's constitution is uncodified, drawing its legal framework from several sources. The principal primary sources of law are legislation (Acts of Parliament, also known as statutes) and common law (judge-made law). The question of which source takes primacy is fundamental to understanding the UK's constitutional arrangements. This essay will argue that statute law enacted by the sovereign Parliament is the primary source of law in the UK and takes precedence over all other sources, including the common law. This principle, known as Parliamentary Sovereignty, holds that Parliament has the ultimate legal authority. This essay will first outline the traditional doctrine of Parliamentary Sovereignty before considering the apparent challenges posed by the UK’s membership of the European Union and the implementation of the Human Rights Act 1998. It will conclude that despite these significant developments, the primacy of statute law remains the central feature of the UK's legal system.
The Supremacy of Statute Law: Parliamentary Sovereignty
The orthodox understanding of the UK constitution is built upon the doctrine of Parliamentary Sovereignty. As articulated by the constitutional theorist A.V. Dicey, this doctrine has three core components: Parliament can make or unmake any law; no Parliament can bind its successor; and no court or other body can question the validity of an Act of Parliament (Dicey, 1915). This means that statute law, as the product of the Queen-in-Parliament, is the highest form of law in the UK.
The judiciary has consistently upheld this principle. In the case of Pickin v British Railways Board [1974] AC 765, the House of Lords refused to investigate allegations that Parliament had been misled during the passing of a private Act. The court affirmed the ‘enrolled bill rule’, which states that once a bill has passed through the required parliamentary procedures and received Royal Assent, the courts must treat it as a valid Act and will not inquire into the process by which it was made. This demonstrates the courts' deference to Parliament and confirms that a statute is immune from judicial challenge on procedural grounds.
This principle establishes a clear hierarchy. While judges create and develop the common law through the system of precedent, they are subordinate to Parliament. If a statute conflicts with a principle of common law, the statute will always prevail. A judge cannot declare a statute to be unlawful simply because it conflicts with a long-standing common law right or principle. Parliament can, and frequently does, legislate to alter or abolish common law rules. Therefore, in the domestic legal order, statute law is recognised as the supreme source of law, taking primacy over the judge-made common law.
The Challenge of European Union Law
For many years, the most significant challenge to the traditional view of Parliamentary Sovereignty came from the UK’s membership of the European Community (later the European Union). The European Communities Act 1972 (ECA 1972) was the domestic statute that gave legal effect to EU law in the UK. Section 2(1) of the Act provided for directly applicable EU law to become part of UK law without further enactment. More radically, section 2(4) required that any UK legislation, whether passed before or after the ECA 1972, be interpreted and applied subject to the requirements of EU law.
The constitutional implications of this were tested in the landmark case of R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603. The House of Lords was faced with a conflict between the UK's Merchant Shipping Act 1988 and EU law concerning the right of establishment. The court followed the direction of the European Court of Justice and granted an injunction that effectively suspended the application of the Merchant Shipping Act. This was a momentous decision, as it meant a UK court had 'disapplied' a primary Act of Parliament because it was incompatible with EU law.
On its face, this appeared to be a direct contradiction of Dicey's theory; a source of law external to Parliament was being given priority over a domestic statute. However, the prevailing judicial view was that this situation did not represent a fundamental surrender of sovereignty. In the Factortame case itself, Lord Bridge stated that the UK Parliament had voluntarily accepted this limitation on its sovereignty when it enacted the ECA 1972. The argument was that sovereignty was not lost, but rather limited by Parliament’s own choice. The ultimate proof of this, it is argued, is that Parliament retained the power to repeal the ECA 1972 and end the supremacy of EU law. This is precisely what happened following the 2016 referendum, with Parliament enacting the European Union (Withdrawal) Act 2018 to repeal the ECA 1972 and formally end the supremacy of EU law in the UK. This confirms that Parliament’s legislative supremacy was, in the final analysis, retained (Elliott and Thomas, 2020).
The Human Rights Act 1998
A further perceived challenge to the primacy of statute has come from the Human Rights Act 1998 (HRA 1998), which incorporated rights from the European Convention on Human Rights (ECHR) into domestic law. The Act has had a significant impact on the relationship between the judiciary and Parliament. Section 3 of the HRA 1998 requires courts to read and give effect to all legislation in a way which is compatible with Convention rights "so far as it is possible to do so". This has led to courts adopting interpretive approaches that can significantly alter the meaning of a statute to make it compliant with the ECHR.
However, the HRA 1998 was deliberately crafted to preserve Parliamentary Sovereignty. Where a court finds it impossible to interpret a statute compatibly with a Convention right, it cannot invalidate or disapply that statute. Instead, under section 4 of the HRA 1998, a higher court (such as the High Court, Court of Appeal or Supreme Court) may issue a "declaration of incompatibility". This declaration has no legal effect on the validity of the statute in question; it simply puts Parliament on notice that one of its Acts is in breach of the UK’s international obligations under the ECHR. The power to amend or repeal the offending legislation remains with Parliament.
An example is the case of Bellinger v Bellinger [2003] UKHL 21, where the House of Lords issued a declaration of incompatibility regarding the Matrimonial Causes Act 1973, which did not allow a post-operative transsexual person to marry in their acquired gender. The court made it clear that changing the law on such a socially sensitive issue was a matter for Parliament, not for the courts. Subsequently, Parliament responded by passing the Gender Recognition Act 2004. This demonstrates that the HRA 1998 creates a dialogue between the courts and Parliament, but ultimately respects the latter's legislative supremacy. The final decision rests with the elected legislature, confirming that statute remains the primary source of law.
Conclusion
In conclusion, the UK's legal system is composed of several sources, but statute law enacted by Parliament holds a position of primacy. The constitutional doctrine of Parliamentary Sovereignty, as explained by Dicey and consistently upheld by the courts, establishes that an Act of Parliament is the highest form of law, to which the common law is subordinate. While this established hierarchy was tested by the supremacy of EU law under the European Communities Act 1972, the UK's withdrawal from the EU and the repeal of that Act have served to reassert the traditional doctrine. Similarly, while the Human Rights Act 1998 has empowered the judiciary to scrutinise legislation for compliance with human rights, its mechanism of a declaration of incompatibility was carefully designed to ensure that the final law-making authority remains with Parliament. Therefore, despite the complexities and debates of recent decades, statute law remains the primary source of law in the UK, which takes precedence over all others.
References
- Dicey, A.V. (1915) Introduction to the Study of the Law of the Constitution. 8th edn. London: Macmillan.
- Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford: Oxford University Press.
Cases
- Bellinger v Bellinger [2003] UKHL 21
- Pickin v British Railways Board [1974] AC 765
- R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603
Legislation
- European Communities Act 1972
- European Union (Withdrawal) Act 2018
- Gender Recognition Act 2004
- Human Rights Act 1998
- Merchant Shipping Act 1988
