In the English legal system, legislation is the highest source of law. An Act of Parliament will override any conflicting common law rule. This is a direct consequence of parliamentary sovereignty — the idea that Parliament is the supreme law-making body in the land.
Legislation and case law work together. Parliament creates statutes, and judges interpret and apply them. Where a statute is unclear, the courts will determine its meaning through statutory interpretation. Once a judge has interpreted a provision, that interpretation becomes part of the common law through the doctrine of precedent.
| Source | Authority | Example |
|---|---|---|
| Acts of Parliament | Supreme — cannot be overridden by any court | Theft Act 1968 |
| Delegated Legislation | Has force of law but can be challenged as ultra vires | The Town and Country Planning (General Permitted Development) Order 2015 |
| Retained EU Law | Preserved by statute — status varies | Consumer Rights Directive (retained) |
| Case Law / Common Law | Binding through precedent but overridden by statute | Donoghue v Stevenson [1932] |
| Custom | Very rare — must be ancient, certain, reasonable | Local fishing or grazing rights |
In the SQE, if there is a conflict between an Act of Parliament and a common law rule, the Act always wins. This is one of the most fundamental principles you need to know.
Parliamentary sovereignty is the cornerstone of the UK constitution. The classic formulation comes from A.V. Dicey, who identified three key principles that together mean Parliament is the supreme legal authority in the UK. No other body can make or unmake Acts of Parliament.
In theory, Parliament has unlimited legislative competence. It could pass a law banning smoking on the streets of Paris or changing the length of a year. Of course, enforcement would be another matter entirely, but the legal power to pass such a law exists. This unlimited competence means there is no written constitution to constrain Parliament's legislative reach.
Unlike in the United States, UK courts cannot strike down an Act of Parliament. If Parliament passes a law, the courts must apply it — even if they disagree with it. The strongest thing the courts can do under the Human Rights Act 1998 is issue a declaration of incompatibility under s.4, but this does not actually invalidate the legislation.
This principle means that each new Parliament has complete freedom. If a 2010 Act says something can never be changed, a 2025 Act can simply repeal it. You cannot entrench legislation in the UK the way you can with a written constitution. The doctrine of implied repeal follows from this — if a later Act conflicts with an earlier one, the later Act prevails.
In practice, parliamentary sovereignty faces real-world limitations. Devolution has transferred significant law-making power to Scotland, Wales, and Northern Ireland. The Human Rights Act 1998 creates political pressure to comply with the ECHR. And practically, Parliament cannot legislate on everything — delegated legislation fills the gap. Be aware of the tension between the theoretical doctrine and modern realities.
Not all Bills are the same. A Public Bill changes the general law and applies to everyone — these are the most common type. A Private Bill affects specific individuals or organisations, such as a Bill giving a local authority special powers. A Private Members' Bill is introduced by a backbench MP rather than the government, and while many are proposed, relatively few become law.
Before a Bill is drafted, the government often publishes consultation documents. A Green Paper sets out ideas for discussion and invites responses from interested parties. A White Paper follows the consultation stage and sets out the government's firm proposals for legislation. Think of green as "go ahead and discuss" and white as "here is what we will do."
The legislative process has several formal stages. First Reading is a formality — the Bill's title is read out and it is ordered to be printed. Second Reading is where the real debate begins, focusing on the Bill's general principles. Committee Stage involves detailed, clause-by-clause scrutiny. Report Stage and Third Reading follow before the Bill moves to the other House.
Just because a Bill receives Royal Assent does not mean it takes effect immediately. Many Acts contain commencement provisions that specify when different parts come into force. Some sections may commence on Royal Assent, others on a specified date, and others only when the Secretary of State makes a commencement order. You need to check commencement carefully in practice.
Always check whether a provision is actually in force before relying on it. An Act can be on the statute book for years with sections that have never been commenced. Westlaw and Legislation.gov.uk will tell you the commencement status of each section.
Every Act has two titles. The short title is what you use in everyday practice — for example, "Theft Act 1968." The long title appears at the beginning of the Act and describes its purpose in more detail. The long title can be useful for understanding Parliament's intention when interpreting ambiguous provisions.
Acts are divided into sections (sometimes grouped into Parts), which are further divided into subsections, paragraphs, and sub-paragraphs. Schedules appear at the end and contain supplementary detail — they have the same legal force as the main body. You cite provisions like this: s.2(1)(a) means section 2, subsection 1, paragraph (a).
Most Acts include an interpretation section, usually near the end, defining key terms. For example, the Sale of Goods Act 1979 defines "goods" in s.61. Always check the interpretation section before assuming you know what a word means — Parliament may have given it a specific or unusual meaning for the purposes of that Act.
When a new Act replaces an old one, transitional provisions deal with the changeover. They answer questions like: what happens to cases already in progress? Do contracts entered under the old law continue to be governed by it? These provisions are easy to overlook but can be critically important in practice.
Delegated legislation (also called secondary or subordinate legislation) is law made by a person or body other than Parliament, but under powers granted by an Act of Parliament. The Act that grants the power is called the parent Act or enabling Act. Parliament delegates this power because it simply cannot deal with every detail of every law itself.
| Type | Made By | Example |
|---|---|---|
| Statutory Instruments (SIs) | Government ministers | The most common form — over 3,000 are made each year |
| Orders in Council | The Privy Council (in practice, the government) | Used for constitutional matters and emergencies |
| By-laws | Local authorities or public bodies | Parking restrictions, local regulations |
Every piece of delegated legislation must trace its authority back to a parent Act. The enabling provision in the parent Act sets out who can make the delegated legislation, what they can legislate on, and often what procedure must be followed. If delegated legislation goes beyond the powers granted by the parent Act, it is ultra vires and can be struck down by the courts.
Parliament retains some control over delegated legislation through two main procedures. The affirmative procedure requires both Houses to approve the instrument before it becomes law. The negative procedure means the instrument becomes law unless either House votes against it within a set period (usually 40 days). The affirmative procedure provides stronger scrutiny but is used less often.
The courts can review delegated legislation through judicial review. If a statutory instrument goes beyond the powers granted by the parent Act, a court can declare it ultra vires and void. This is a key difference from primary legislation — remember, courts cannot strike down an Act of Parliament, but they can strike down delegated legislation that exceeds the enabling power.
If you see a question about challenging delegated legislation, think ultra vires first. The challenge will usually be that the minister has gone beyond the powers granted by the parent Act. This is one of the most important controls on executive power in the UK system.
When the UK left the EU, there was a massive body of EU law that had been part of domestic law for decades. The European Union (Withdrawal) Act 2018 dealt with this by converting EU law into domestic UK law at the point of exit. This "retained EU law" ensured legal continuity — you did not wake up on exit day to find huge gaps in the law.
The 2018 Act retained three main categories of EU law. First, EU-derived domestic legislation — UK laws that implemented EU directives. Second, direct EU legislation like regulations that had applied automatically. Third, any rights or obligations that had been directly effective in UK law. Together, these categories captured the vast majority of EU law that was operative in the UK.
Retained EU law occupied an unusual position in the hierarchy. It was domestic law, but its status depended on its original form. Retained EU legislation derived from EU regulations initially had a status equivalent to primary legislation and could not be easily modified. However, the government was given broad powers to make corrections through statutory instruments.
The 2023 Act changed the landscape significantly. It removed the special status of retained EU law, so it is now treated as ordinary domestic legislation. It also gave ministers powers to revoke or replace retained EU law. Some retained EU law was automatically revoked at the end of 2023 under sunset provisions. The original plan to revoke all unpreserved retained EU law was scaled back — instead, a specific list was revoked.
The status of retained EU law is still developing. For the SQE, focus on understanding the basic framework: EU law was preserved by the 2018 Act, and the 2023 Act removed its special status and began the process of revoking or reforming it. You do not need to know every individual regulation that was revoked.
The Human Rights Act 1998 (HRA) incorporated the rights from the European Convention on Human Rights (ECHR) into domestic law. Before the HRA, you had to go to the European Court of Human Rights in Strasbourg to enforce your Convention rights. Now you can raise them directly in UK courts. This was a major constitutional development.
Section 3 of the HRA requires courts to read and give effect to legislation in a way that is compatible with Convention rights, "so far as it is possible to do so." This is a powerful interpretive tool. Courts have sometimes given statutes meanings that go well beyond their ordinary wording in order to achieve compatibility. But there are limits — the courts cannot rewrite legislation entirely.
When a court cannot interpret legislation compatibly with Convention rights under s.3, it may issue a declaration of incompatibility under s.4. This is crucial to understand: a declaration does not affect the validity of the legislation. The Act continues to apply. It simply signals to Parliament that the law is incompatible and invites Parliament to change it. This preserves parliamentary sovereignty.
A s.4 declaration of incompatibility does NOT strike down or invalidate the Act in question. This is a critical distinction and a common exam trap. The legislation remains in full force and effect. Parliament is expected — but not legally required — to amend the law. In practice, Parliament has almost always responded to declarations by changing the law.
Section 6 makes it unlawful for a public authority to act in a way that is incompatible with Convention rights. Public authorities include obvious bodies like the police, local councils, and the NHS. They also include courts and tribunals. However, a public authority has a defence if it was required to act that way by primary legislation that cannot be read compatibly under s.3.
| Article | Right | Key Points |
|---|---|---|
| Article 2 | Right to life | Absolute right — imposes positive duty on state to protect life |
| Article 3 | Prohibition of torture | Absolute right — no derogation or exception is permitted |
| Article 5 | Right to liberty and security | Qualified — detention must be lawful and for a specified purpose |
| Article 6 | Right to a fair trial | Includes access to court, presumption of innocence, legal representation |
| Article 8 | Right to respect for private and family life | Qualified — can be limited if necessary and proportionate |
| Article 10 | Freedom of expression | Qualified — can be restricted for national security, public health, etc. |
| Article 14 | Prohibition of discrimination | Not a free-standing right — must be linked to another Convention right |
When Convention rights are qualified (like Articles 8 and 10), any interference must be proportionate. Proportionality asks whether the measure is a reasonable and necessary response to a legitimate aim. The margin of appreciation is a related concept used by the Strasbourg court — it gives states some discretion in how they implement Convention rights, recognising that different countries may strike different balances.
For the SQE, you must know the difference between absolute and qualified rights. Articles 2 and 3 are absolute — they cannot be limited or balanced against other interests. Qualified rights like Articles 8 and 10 can be restricted, but only if the restriction is prescribed by law, pursues a legitimate aim, and is proportionate. Article 14 is unusual because it only applies in conjunction with another right.
The Human Rights Act is cleverly designed to protect parliamentary sovereignty. Courts cannot strike down Acts of Parliament — they can only issue declarations of incompatibility. The obligation under s.3 to interpret legislation compatibly is strong but has limits. This balance between human rights protection and parliamentary sovereignty is a favourite SQE topic.