Introduction
The principle of Parliamentary sovereignty, as articulated by A.V. Dicey, posits that Parliament possesses the supreme legal authority within a state. Specifically, Dicey defined this doctrine as Parliament’s right to enact or repeal any law whatsoever, without any legal limitations imposed by another body. Further, he stated that no individual or institution within the English legal system is recognized as having the power to override or nullify an Act of Parliament. This traditional understanding of parliamentary sovereignty implies a legally unlimited legislative capacity for Parliament and a position of absolute supremacy within the constitutional structure. This article will examine this concept in light of contemporary influences.
This definition contains two core tenets: Parliament’s unlimited legislative power and the lack of any other body capable of setting aside parliamentary acts. These concepts, though seemingly straightforward, have encountered complexities due to factors such as European Union membership, devolution of powers, and increased judicial scrutiny. Therefore, it is crucial to reexamine Dicey's rigid conceptualization, assessing whether it remains a pertinent description of modern constitutional arrangements, or if it has become a constitutional archaism. The doctrine's practical application and limitations within the contemporary legal and political sphere require careful consideration, focusing particularly on aspects that challenge the notion of an entirely unlimited Parliament.
The Impact of EU Membership on Parliamentary Sovereignty
The United Kingdom's membership in the European Union, established through the European Communities Act 1972, introduced a mechanism by which EU law could integrate into British law without requiring further legislative action from Parliament. Specifically, sections 2(1) and 2(4) of the Act gave direct effect to EU law within the UK legal system, with section 3(1) enabling British courts to take rulings of the European Court of Justice (ECJ) into account when deciding cases. This arrangement brought about a significant constitutional shift, authorizing a partial transference of judicial allegiance from the UK Parliament to the ECJ.
The case of Factortame, confirmed the supremacy of EU law over national law, when the court ordered the interim suspension of the Merchant Shipping Act 1988. This ruling came in response to an ECJ preliminary ruling stating that national courts are required to set aside national legislation that contravenes EU law. Thus, sections 2(4) and 3(1) of the 1972 Act, when considered collectively, meant that British courts became obligated to disapply any UK legislation deemed inconsistent with EU law. Lord Bridge contended that any limitation on Parliamentary sovereignty accepted by Parliament upon enactment of the 1972 Act was ‘entirely voluntary’, which Wade later identified as a revolution by the judiciary. However, this could be viewed as an evolution, as Allan submits. The legal powers of Parliament remain intact, though limits have been placed on its authority.
The European Union Act 2011, particularly section 18, formally recognizes Parliament’s legal sovereignty. However, despite this assertion, the constraints on sovereignty since 1991 are greater than those previously. Factortame represents a key development, demonstrating that the principle of sovereignty extends beyond statutory regulations; and, crucially, beyond an understanding of Parliament's legislative power.
The Emergence of Constitutional Statutes and Limits on Implied Repeal
Beyond the influence of the European Union, British common law principles have further introduced limitations on Parliamentary sovereignty. The case of Thoburn v Sunderland City Council (2002) established a hierarchy of statutes, recognising certain Acts as “constitutional statutes” that cannot be repealed merely by implication. This decision specifically categorised the 1972 European Communities Act as a constitutional statute, confirming that it cannot be repealed indirectly but only through an explicit and express Act of Parliament. This ruling imposes a limitation not only regarding EU law, but more broadly on legislative processes.
Thoburn indicates a divergence from the traditional Diceyan view by suggesting that Parliament's power to "make or unmake any law whatever" is now contingent upon doing so expressly. This signifies that the judiciary, through the common law, has placed a fetter on the legislative capability of Parliament. Furthermore, the inclusion of Henry VIII clauses in the 1972 Act, which grants the executive the ability to modify statutes to align with EU requirements, creates further restrictions on future Parliaments. It suggests that any alteration of constitutional laws must be explicit. The continued adherence to the principle that ECJ rulings are binding on national courts, despite instances of political conflict regarding EU membership as demonstrated by Davis, further strengthens the notion of a constitutional check on parliamentary authority.
The Impact of Devolution on the Sovereignty of Parliament
Devolution reforms in 1998 established devolved legislatures in Scotland, Northern Ireland, and Wales, which have their own defined areas of competence. These devolved legislatures possess a degree of autonomy, with Westminster by convention refraining from legislating on their areas without the relevant consent. The Sewel Convention, formalized in the Scotland Act 2016, recognizes the political requirement for legislative consent motions before Westminster legislates in devolved areas. This appears to challenge the traditional understanding of sovereignty.
However, the authority of the devolved bodies originates from Acts of the UK Parliament. Parliament retains the power to repeal any legislation it wishes, and Lord Hope in AXA affirmed that "Devolution is an exercise of its law-making power by the United Kingdom Parliament at Westminster." The devolved legislatures do not challenge the legal sovereignty of Westminster; they function under authority granted by Acts of Parliament and are subject to those acts.
Nonetheless, Parliament's legal entitlement to legislate on devolved matters does not necessarily translate to constitutional entitlement; any attempt to act in such a manner could lead to severe consequences, such as an increased push for Scottish independence. The Supreme Court ruling in Miller acknowledged the political nature of the Sewel Convention. Although the Court did not rule on the matter, its analysis confirmed Parliament’s maintenance of its legal sovereignty, despite a political limitation.
The Parliament Acts and Manner and Form Limitations
The Parliament Acts of 1911 and 1949 established a procedure which allowed the House of Commons to pass legislation without the full consent of the House of Lords. This is an example of a limitation to the manner and form by which Parliament can legislate. The validity of the 1949 Act and the subsequent Hunting Act 2004 were upheld in Jackson, affirming the 1911 Act’s scope in expanding the Commons' powers. This ruling suggests that Parliament can bind its successors in respect to legislative procedure.
Young contends that Jackson shows that Parliament is bound by specific procedures that have to be agreed to by the House of Lords. While this does seem to depart from the rigid Diceyan model of Parliamentary sovereignty, Parliament remains sovereign if it employs standard procedures. Therefore, such legislative actions, albeit technically bound by a specific manner and form, do not fundamentally challenge Parliament's legal supremacy, as affirmed in Miller. While Jackson indicates the possibility of mandatory reversion to standard manner and form, it ultimately reinforces that changes to Parliament’s standard legislative practice must be explicit.
The Rule of Law as a Constitutional Constraint
The rule of law presents a fundamental, if not always explicit, restriction on the power of Parliament. As Lord Hope noted in Jackson, “Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute.” He maintained that the rule of law, as enforced by the courts, is the ultimate check on which the constitution is based. This assertion suggests that Parliament's authority is implicitly constrained by legal principles ensuring that no body is above the law.
Dicey considered the rule of law as one of the twin pillars of the constitution; this confirms that Dicey’s definition of sovereignty operated within the confines of the rule of law. Therefore, an overly critical view of Dicey’s doctrine may be ill-founded. The need to afford adequate protection to human rights has expanded the rule of law beyond its original parameters. Alterations to the doctrine on this basis are significant, yet do not represent a fundamental shift, but a narrowing of the powers of Parliament. The courts now wield control over the scope of parliamentary sovereignty, indicative of a broader trend, and indicative of the common law’s capacity to develop, evolve and provide for greater protections. This also implies that changes are largely self-imposed by Parliament.
Conclusion
The traditional Diceyan understanding of Parliamentary sovereignty does not entirely represent the modern constitutional reality. The doctrine is limited by a number of factors, most importantly: the incorporation of EU law, the recognition of constitutional statutes, the devolution of powers, and the fundamental place of the rule of law. Parliament remains the supreme legal authority; however, this legal authority is not as unlimited as Dicey’s theory posited.
The emergence of a hierarchy of statutes, the political and conventional restrictions resulting from devolution, and the judicially enforced common law principle of the rule of law, all highlight the self-imposed constraints on the ability of Parliament to make or unmake law as it sees fit. While Parliament remains legally capable of legislating on any subject, external limitations, not internal limitations within Parliament itself, impact its ability to do so. This demonstrates that Dicey’s conception of sovereignty, while historically significant, requires updating in the modern era to account for the evolution of the UK constitution.
