Parliamentary Sovereignty in the British Constitution

This article critically evaluates the principle of Parliamentary Sovereignty in the British constitution today. It explores the concept of supreme legislative authority and its limitations in light of modern developments and challenges.

According to A.V. Dicey (Law of the Constitution, 1885), “ …Parliament has total power. It is
sovereign.”
Critically evaluate whether or not this statement is still an accurate description of the
principle of Parliamentary Sovereignty in the British constitution today
In view of the customary definition of parliamentary sovereignty given by A V Dicey,
Parliament is considered as having the supreme legislative anti-constitution in Britain. The
surrogate has been given in 1885 before several significant changes were made to the
Constitution in the 20th century. However there are three aspects of the definition given by
Dicey. First of all, the Parliament is considered as the supreme lawmaking body that has the
authority to pass any legislation that it wants. The second aspect is that the meaning of the
authority of statute is that no other statutory entity, even the courts cannot raise questions
regarding the authority of Parliament. Great asset is that the Parliament has the credibility of
binding its successors. In the same way, the Parliament is also bound by the decisions made by
its predecessors. However, the traditional view given by Dicey regarding the argument has to be
considered in view of the modern developments that have taken place in this regard.1
The status of the Parliament as the only body having the ability of formulating and passing
legislation has its basis in the conflict that is present within the monarchy and legislation during
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the 17th century. During this time, attempts were made by the King to regulate by prerogative. It
was trailed by the Bill of Rights in 1689, which subdued the monarchy and the supreme
lawmaking authority was given to the Parliament. The Parliament even had the authority to enact
the legislation with retrospective force.2 An example in this regard, chairman of the War Damage
Act, 1965, which denied recompensing an oil corporation who suffered damage to its
installations in World War II. Similarly In R (Jackson) v AG,3 the ability of the Parliament to
rely on Parliament Act, 1911 for amending the Parliament act, 1949 has been probed in view of
the contentious Hunting Act, 2004. It would have resulted in an existential trial for the authority
of the Parliament. However in this case, the opinion of the House of Lords, no limits existed
regarding the kind of legislation that can be enacted by the Parliament by using the Parliament
Acts, except in cases where a limitation has been imposed by the Parliament itself in its
legislation.4
Therefore it can be claimed that the trend in favor of devolution does not serve to weaken the
supreme authority of the Parliament. But it may be true to claim that as a result of this
devolution, instead of its authority, the jurisdiction of the Parliament may be restricted. In this
context, the most powerful devolved body, which is the Scottish Parliament, has formed powers
in several fields comprising criminal justice and health policy, but it can hardly be considered as
challenging the Parliament, where the power has been passed on in these areas. In view of
independence referendum that was held in the Scottish Parliament, will further enlarge its sphere
of activity, but it does not override the Westminster where the authority lies in the UK
Parliament.5
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Deference to Act of Parliament:. The Bill of Rights, 1689 underpins the difference of the
executive and judiciary towards the Parliament and this legislation had significantly abridged the
authority of the monarchy and at the same time. It also restricted the judges from superseding the
statutes with common law.
In Re Jackson, the House of Lords has shown its keenness for stressing upon the fact that
although it was at liberty to infer the verses of Hunting Act, 2004, but it cannot interrogate the
authority of the Parliament as it challenges the law concerning the previous legislations passed
by the Parliament. Even if the case was controversial, the method adopted by the House of Lords
had clearly revealed the supremacy of the Acts passed by the Parliament. Therefore, as did the
US system, there is no remedy available to the Supreme Court to bring a claim based on law’s
unconstitutional nature. This traditional approach regarding the supremacy of Parliament has
been further confirmed in Pickin v British Railways Board.6 In this case, it was clearly
mentioned by the House of Lords that authority is not present on part of the courts to challenge
the legitimacy of a legislation passed by the Parliament. Sometimes it is also called the 'enrolled
bill rule'.7
, Therefore, it can be argued that the only challenge that is present to the legitimacy of the Acts is
caused by the European Union as the Court of Justice has the path of striking down the
legislation of its member states if these legislations are not in compliance with the primary
legislation of the European Union. This happened in Factortame case.8
In this case, it was stated that Merchant Shipping Act, 1988 of the United Kingdom, that has
been implemented to preclude trawlers belonging to Spain from fishing in UK waters by
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registering their vessels in the UK has to be considered as invalid. The reason was that this
legislation delegated from the European Union law enjoys supremacy over key national law.
Therefore, in case of the UK Parliament, it has been revealed that Parliamentary Acts are
vulnerable to this scrutiny by outside body.
But in this regard, it is uncertain if this episode results in an existential challenge for the
sovereignty of the Parliament due to the reason that at any moment, the Parliament can extricate
itself from the scrutiny by the EU by adopting legislation to leave the European Union. In the
same way, the Human Rights Act, 1988 also does not significantly contest the sovereignty of
Parliament. In this regard has been pointed out by the experts that are available to the Parliament
to decide that it is not going to alter any provision even if it has been announced as incompatible
by a court with the European Convention on Human Rights (ECHR).9
The principle related with binding successive Parliaments: In this context, it suggested by several
experts on grounds of the constitutional nature of European Communities Act, 1972 as this latest
edition integrates the law of European Union into the national legislations of the United
Kingdom, that in practical terms, the UK Parliament is not at liberty to revoke all the legislations
that have been enacted by its predecessors. As a result, it was suggested by the court in Thoburn
v Sunderland City Council10 that there was a assortment of supposed constitutional statutes
(which included the European Communities Act, 1972) that can only be expressly repealed by
the parliament but not impliedly. Therefore on the face of the situation, it appears to result in a
measure of uncertainty both regarding the issue of which statutes were in fact going to be
considered as 'constitutional' statutes and if 'implied' repeal can be challenged in the courts.11
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In view of the recognized settlement that the courts do not have the authority of challenging the
validity of the Acts passed by the Parliament (counting the ones which repeal prior legislation) .
It is not clear that even the implied appeal may result in giving rise to a conflict. In any case, it is
available to the parliament to simply legislate for specifically repealing some statutes like the
ECA, 1972 that have been considered as 'constitutional' in Thoburn.
Moreover, it is not clear if the dominance of the executive (or in other words, the so-called
elective dictatorship) may include the notion of not binding the successor Parliaments due to the
reason that statutory tools are not available to the executive that can override the Acts passed by
the Parliament.
In this regard, it can be stated in the end that there is no uncertainty that in view of some
constitutional developments that took place in the 20th century, and also in the first part of the
21st-century, mainly related with the membership of UK of the EU and also the tendency in
favor of decentralization present in Scotland, Wales and also in Northern Ireland, have resulted
in providing a succession of challenges for the customary view of A V Dicey which provides the
Parliament has to be considered as supreme. However in practice, the three elements that have
been espoused by Dicey have been upheld significantly build and it will be intriguing to see if
the situation continues.12
Bibliography
Allen Horstman and others, 'Constitutional Reflections: The Correspondence Of Albert Venn
Dicey And Arthur Berriedal Keith' (1998) 30 Albion: A Quarterly Journal Concerned with
British Studies.
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Carolyn Dicey Jennings, 'The Subject Of Attention' (2012) 189 Synthese.
Christina Eckes, 'Protecting Supremacy From External Influences: A Precondition For A
European Constitutional Legal Order?' (2012) 18 European Law Journal.
Dylan Lino, 'The Rule Of Law And The Rule Of Empire: A.V. Dicey In Imperial Context'
(2018) 81 The Modern Law Review.
M O'Neill, 'Great Britain: From Dicey To Devolution' (2000) 53 Parliamentary Affairs.
Matej Avbelj, 'Supremacy Or Primacy Of EU Law-(Why) Does It Matter?' (2011) 17 European
Law Journal.
Ming-Sung Kuo, 'In The Shadow Of Judicial Supremacy: Putting The Idea Of Judicial Dialogue
In Its Place' (2015) 29 Ratio Juris.
Roxanne Khamsi, 'Dicey Play For DNA' [2005] Nature.
Case Law
Pickin v British Railways Board [1974] AC 765 HL
R (Jackson) v AG [2005] UKHL 56
R v Secretary of State for Transport ex p. Factortame [1990] UKHL 7
Thoburn v Sunderland City Council[2002] EWHC 195