General principles of law

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom..." (Lord Steyn in R (Jackson and Others) v. Attorney General)

Discuss.

Parliamentary sovereignty refers to the absence of any legal constraint upon the legislative power of the United Kingdom Parliament. The definition is given by A.V Dicey (Law of the Constitution, pp. 39-40):

'The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined (Queen, Lords, Commons)has the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to overrule or set aside the legislation of Parliament.'

This absence of legal restraint has three aspects; the positive that Parliament can legislate on any subject matter. The negative; that once Parliament has legislated no court or other body can deny the legal validity of the legislation. And no individual Parliament is bound by its predecessors or can bind its successors.

C J Cockburn in ex parte Canon Selwyn 1872

"There is no judicial body in the country by which the validity of an Act of Parliament could be questioned. An Act of the Legislature is superior in authority to any court of law."

In contrast, Dicey says, sovereignty is 'limited on every side by the possibility of popular resistance'[1]. This view is a living instrument because we live in a democratic society. The purpose of the government is to serve for the people. As we elect them, Parliament's power is limited. It does not necessarily mean that parliament has absolute power to legislate but has intrinsic and extrinsic limits of power.

Courts cannot interfere with mode in which an Act of Parliament was introduced and once it has been passed and is on the Parliamentary Roll it cannot be challenged by the courts as seen in Edinburgh & Dalkeith Railway Co v Wauchope 1842.

The Courts positively asserted Parliamentary Sovereignty and were unwilling to interfere - but the Courts have no power to declare an Act of Parliament unconstitutional: BRB v Pickin[2]

"The Queen in Parliament is competent, according to United Kingdom law, to make or unmake any law whatsoever; and no United Kingdom court is competent to question the validity of an Act of Parliament."

However the courts have been willing to question the validity of Acts of Parliament recently, this is in contrary to Dicey's view on parliamentary sovereignty. The Queen in Parliament by convention can have the power to make or unmake law; nevertheless this convention has not been practiced recently.

The traditional view of parliamentary sovereignty is seen 'under pressure' as Elliot, M. (2004)[3]has phrased it .This is especially in European Law and with the introduction of the Human Rights Act.

Limitations on Parliamentary Sovereignty are that Parliament's power to legislate - or rather the Government's power to make the laws it wishes, is therefore limited by:

  • Public opinion
  • Membership of the European Union, International law
  • Acts of Union
  • Doctrine of Implied Repeal

The doctrine of implied repeals was demonstrated in Vauxhall Ests v Liverpool Corporation[4] and Ellen Street Ests v Minister of Health[5]. Parliament may enact a law that repeals any previous law. For Dicey to evaluate that Parliament is bound by its predecessors or can bind its successors provides a mechanism guaranteeing contemporary sovereignty. In Thoburn v Sunderland City Council [2002] EWHC 195.it was held ECA is a Constitutional statute and cannot be impliedly repealed. This does limit the United Kingdom Parliament where Dicey positive limb that Parliament can make or unmake law.

Membership of the European Union has limited Parliament supremacy. The attitude of the European Court of Justice was expressed in the case of Costa v E.N.E.L. [1964] ECR 585 that:

"Member states have limited their own sovereign rights . . .and have thus created a body of law which binds both their nations and themselves."

It was in HP Bulmer v J Bollinger S A [1974] Ch 401 that Lord Denning stated that:

"The Treaty of Rome is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back."

Nevertheless where there is a lacuna in European Law, Parliament supremacy in United Kingdom, legislation is enforceable. Lord Irvine has identified that the adoption of Human Rights Act 1998 s 4 (6) has reinforced Dicey's view that Parliament is supreme. Goldsworthy critics Dicey that parliament sovereignty whatever it enacts will be obeyed by courts. Goldsworthy[6] argues legislature is sovereign provided law making authority is not limited in any substantive respect. United Kingdom Parliament is still sovereign as long as it retains its authority to withdraw Britain from the European community by enacting express and unambiguous words to the effect.

Post 1972 statute would take precedence over Community law which conflicted with it. Macarthys Ltd v Wendy Smith [1979] CMLR 44 has been contrary to Dicey's negative view that parliament once legislated that no court or other body can deny legal validity of the legislation.

In R v SS for Transport ex p. Factortame [1991] AC 603[6] House of Lords agreed with the Court of Appeal that the English Courts had no authority to disapply an Act of Parliament because: Any Act of Parliament was deemed to be compatible with EC law unless the contrary was declared. Common law rule that an interim injunction could not be granted against the Crown. House of Lords also referred the key question of whether or not EC law required that the overriding principle was one whereby EC law should take priority in the interim especially where financial loss at stake.

The European Court responded that Community law must be interpreted in favour of setting aside any national law that precluded interim relief by acting as an obstacle to that end. The European Court also responded to the preliminary ruling of the Divisional Court that provisions of the 1988 Merchant Shipping Act were indeed contrary to Community Law.

European Court responded that a national court must interpret its own national law in the light of the wording and purpose of the Directive in order to preclude any declaration of nullity. Marleasing VA v La Comercial Internationale de Alimentations A [1992] 1 CMLR 305

For Dicey, to say that Parliament is sovereign is to say that no other human agency passes legal authority to override or hold invalid any statute that parliament enacts. It can be seen that his view is a living instrument in a sense that the concept Dicey identifies should be interpreted in the lights of political, social and economic tendency. His view of parliamentary sovereignty has moved in time to maintain a modern democratic state. It is important to note that Dicey's view is concerned with legal limits and not of political limits.