Introduction
A.V. Dicey’s articulation of parliamentary sovereignty stands as a central tenet in the study of the British constitution. This doctrine, traditionally understood, posits that Parliament possesses the absolute authority to legislate on any subject matter, free from legal constraints by other entities. Dicey himself defined this principle as meaning that “Parliament has… the right to make or unmake any law whatever” and that “no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” This view emphasizes the unlimited nature of parliamentary power and its legal supremacy within the UK legal framework. The technical principles inherent in Dicey's concept include the absence of any higher legal authority and the inability of Parliament to bind future Parliaments. Key requirements are legislative authority over all matters and judicial deference to statutes enacted by Parliament. This essay examines the validity of this traditional concept in light of modern constitutional developments, demonstrating that the doctrine of parliamentary sovereignty, while still influential, does not reflect the entirely unlimited view originally conceived by Dicey.
The Impact of EU Membership on Parliamentary Sovereignty
The European Communities Act 1972 marked a significant departure from Dicey's classic definition of parliamentary sovereignty. This Act incorporated European Union law into the domestic legal order, granting it a supremacy that challenged the absolute authority of Parliament. Section 2(1) and 2(4) of the 1972 Act enabled EU law to be directly effective in the UK, a principle upheld by the European Court of Justice (ECJ). This mechanism allowed EU law to take precedence over conflicting national legislation, effectively limiting Parliament’s ability to legislate without considering the existing obligations under EU law. The subsequent Section 3 of the Act further complicated this issue by allowing courts to take into account ECJ rulings, a potential transfer of judicial allegiance from the UK Parliament to a supranational body.
The landmark case of Factortame [1991] 1 AC 603, confirmed the supremacy of Community law over Acts of Parliament, obliging UK courts to disapply national law that conflicted with EU law. This ruling, rooted in the ECJ's preliminary ruling, granted interim relief to appellants who argued that the Merchant Shipping Act 1988 infringed on their EU rights. Lord Bridge’s statement that any limitation on sovereignty accepted by Parliament through the 1972 Act was "entirely voluntary," highlights a critical aspect of this debate: the concept of ‘self-embracing’ sovereignty. While Parliament retains the formal power to repeal the 1972 Act, the political and constitutional realities suggest a significant constraint. The European Union Act 2011, which reinforces Parliament's legal sovereignty (specifically Section 18), serves as a partial counter to these limitations.
Constitutional Statutes and Limits on Implied Repeal
The concept of constitutional statutes, as articulated in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), further modifies Dicey's original doctrine. This case identified a class of statutes, such as the European Communities Act 1972, that possess a higher constitutional status and cannot be impliedly repealed by later legislation. This principle means that any legislation seeking to alter or repeal such a constitutional statute would require an express statement by Parliament, effectively establishing a hierarchy of statutes where some legislation holds greater legal and constitutional weight. This approach departs from the traditional Diceyan view of all Acts of Parliament being equal in their legal effect.
Further limitations arise from the use of Henry VIII clauses within the European Communities Act 1972. These clauses, exemplified by s. 2(2) in conjunction with s. 2(4) of the Act, empower the executive to alter statutory provisions to conform with Community obligations. The judiciary has thus set a de facto limitation on the law-making capabilities of Parliament, indicating that Parliament can “make or unmake” laws only expressly when dealing with fundamental statutes. The continued application of ECJ decisions to UK national courts in cases such as Davis also demonstrates the strength of these constitutional limits, underscoring the influence of EU law even during periods of political friction.
The Effect of Devolution on Parliamentary Sovereignty
The devolution reforms of 1998 established devolved legislatures in Scotland, Wales, and Northern Ireland, each with their own specific areas of competence. While the devolved legislatures’ authority is derived from authorization from the UK Parliament, these bodies exercise considerable legislative power in their areas. Though formally considered a sharing of power, the devolution process has also presented a new challenge to parliamentary sovereignty as understood in Dicey's time. Convention dictates that Westminster refrains from legislating on devolved matters without the consent of the relevant devolved legislature, most clearly articulated through the Sewel Convention.
The Scotland Act 2016, which gives statutory recognition to the Sewel Convention, strengthens the limitations on Parliamentary action in devolved areas. Though not a legal restraint, such an instance is indicative of the practical constraints that the UK Parliament operates within. Lord Hope’s statement in AXA General Insurance that “Devolution is an exercise of its law-making power by the United Kingdom Parliament at Westminster,” acknowledges that the UK Parliament still holds the legal power. However, attempts by Parliament to act on devolved matters without consent could lead to significant political repercussions, as has been the case with the calls for a Scottish independence. The Miller case, which involved a judicial ruling on the Sewel Convention, supports the view that although Parliament retains legal sovereignty in relation to devolved matters, it operates within a more limited constitutional context.
The Parliament Acts 1911 and 1949 and Manner and Form
The Parliament Acts of 1911 and 1949 further illustrate the evolution of the concept of parliamentary sovereignty. These acts conferred the power to the Commons to pass legislation without the approval of the Lords. The 1949 Act further curtailed the delaying power of the Lords. The judicial ruling in Jackson confirmed the validity of the 1949 Act and the subsequent Hunting Act 2004, implying that manner and form rules can bind successive Parliaments when the Parliament passes legislation using the procedure created by Parliament Acts, which was the Parliament's intention. This interpretation was contested by Young, who stated that the Parliament Act 1911 was binding on successors in manner and form.
This view contrasts with the Diceyan conception of sovereignty, where no Parliament can be bound by the procedures established by its predecessors. This means that while Parliament can technically modify the provisions of the Parliament Act 1911, such changes require the consent of the House of Lords, a reversion to the standard legislative procedure that existed during Dicey’s time. This interpretation suggests a limited entrenchment of certain procedural laws, another departure from the unlimited legislative power envisioned by Dicey, and further supports the idea that the rule of recognition may be modified.
Rule of Law and Human Rights Limits
The rule of law has emerged as an independent constitutional principle that further limits the scope of parliamentary sovereignty. Lord Hope in Jackson stated that “Parliamentary sovereignty is no longer, if it ever was, absolute,” and that “the rule of law enforced by the courts is the ultimate controlling factor.” This demonstrates the limitations on parliamentary power in relation to the rule of law. Dicey considered the rule of law a pillar of the constitution alongside parliamentary sovereignty, meaning that sovereignty was never envisioned to operate without the framework provided by the rule of law. However, modern interpretations of the rule of law, such as the protection of human rights, have added a level of constraint to Parliament’s power.
The Human Rights Act 1998 (HRA), while not the focus of this discussion, serves as a further example. Although it is often described as an extension of EU law in terms of constitutional limitation, it does also represent a general limitation on parliamentary powers. The principle of legality suggests that parliament must legislate expressly to deviate from basic common law rights. The interplay of common law developments and statutory interpretation is illustrative of a more general trend of evolution.
Conclusion
In conclusion, the doctrine of parliamentary sovereignty, as originally conceived by A.V. Dicey, has undergone significant modification due to developments in UK constitutional law. While Parliament retains the legal power to legislate on any matter, the reality is far more complex. EU law, constitutional statutes, devolution, manner and form requirements, and the rule of law, all impose significant constraints on Parliament’s practical ability to exercise its powers without limitation. Parliament’s ability to make or unmake any law is most limited by factors external to Parliament. These limits do not result from the legislation itself but from the broader implications of subject matter, the reach of the statute, and also from attitudinal changes as seen within the common law, which is reflective of the wider society. Although the court has some control over sovereignty, any such alteration is indicative of a more general trend, which can be deemed self-imposed by Parliament. Therefore, the modern understanding of parliamentary sovereignty is not what was first described by Dicey.
