Is Parliamentary Sovereignty at the Forefront of the UK Constitution?

“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. Nevertheless, the supremacy of Parliament is still the general principle of our constitution.” [per Lord Steyn, in Jackson v Attorney-General [2005] 3 WLR 733, at para. 102]

This essay will explore whether or not parliamentary sovereignty is at the forefront of the modern UK constitution as Lord Steyn suggests in Jackson v Attorney- General [2003]. I will also discuss the self-embracing sovereignty theory in order to scrutinise whether parliamentary sovereignty is the general principle of the UK constitution. A Parliament is considered to be sovereign if it ‘can make, amend or repeal any law, this removes the possibility of there being any higher body of constitutional law that is binding upon legislators.’ [1]  I will therefore explore whether the thesis suggested by Lord Steyn in Jackson v Attorney- General holds any weight in the UK Parliament to date.

The orthodox theory of parliamentary sovereignty supports Dicey’s view as Dicey suggests that parliamentary sovereignty is “…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 set aside the legislation of Parliament.”[2] Under the Diceyan view of parliamentary sovereignty it is easy for Parliament to abuse their power with the view in mind that they are able to pass any law that they want. Dicey fails to recognize that there may be more substantial routes to the constitution and over time the concept of parliamentary sovereignty has evolved to incorporate the role of the Courts, House of Commons and House of Lords. Pickin v British Railways Board [1974][3] supports the orthodox theory of parliamentary supremacy as it recognizes that the courts are unable to interfere with the legislation in Parliament as Parliament are the supreme legislative body. With the view of the orthodox theory in mind the courts role is to apply the laws that Parliament create rather than challenge and oppose the existing laws. However, in the UK at present the Courts and other legislative bodies play a role in entrenching laws[4] which is portrayed through the theory of self embracing sovereignty which you could consider to be more widely accepted in 2019.

A theory that may be more common in modern UK Parliament is self embracing sovereignty. Self embracing sovereignty is means that its power extends to destroying its own sovereignty. It is possible to pass a law entrenching legislation and the entrenchment would be effective. [5]This is recognized in Jackson v Attorney- General 2003[6] as the case discusses whether or not the Parliament Acts 1911[7] and 1949[8] were valid or whether they were delegated legislation and more specifically the act in question was the Hunting Act 2004[9]. In the case of Jackson v Attorney- General they upheld the Hunting Act 2004 and disregarded the Parliament Act 1949 to be delegated legislation. This enforces the view that Parliament is a supreme body as they have the power to modify the Parliament Act in 1949 which is the Act in which the Hunting Act was legislated under. On the surface this supports Dicey’s orthodox theory of parliamentary sovereignty as Parliament has the power to create and make any law that they desire, for example the modification of the Parliament Act is considered to be lawful and not delegated legislation.

However, as discussed by Alison Young the decision in Jackson may oppose the views of Dicey and continuing parliamentary legislative supremacy, as this requires that ‘no person or body is recognized by the law of England of having a right to override or set aside the legislation of Parliament.’[10] This acknowledges the supremacy of Parliament but also modifies Dicey’s theory to make it more applicable to the modern UK.  Jackson identifies that there may be more substantive and normative elements of the UK constitution, for example the Rule of Law underpins parliamentary sovereignty in modern UK Parliament. The Rule of Law suggests that it is simply a political philosophy: a set of opinions about what characteristics of the law ought to be. [11]This suggests that we are governed by law and not by power, which opposes Dicey’s view of legislative supremacy; this may perhaps be the modern take on parliamentary sovereignty.  In Jackson Lord Hope suggests that ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.’ [12]

R v Secretary of State for Transport, ex parte Factortame (No.2) [1991][13] is also a case that recognises the theory of self-embracing sovereignty as Lord Bridge suggested that ‘whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.’  As well as this Thoburn v Sunderland City Council[14] also accepts the theory of self embracing sovereignty and can be seen in conjunction with Factortame as Laws LJ states that ‘we should recognise a hierarchy of Acts of Parliament; as it were ordinary statutes and constitutional statutes,’ as discussed by Alison Young both of these cases display that Parliament can bind its successors. ‘In Factor tame, directly effective provisions of EC law, incorporated into English law and of the European Communities Act 1972, conflicted with Merchant Shipping Act 1988.’  Vernon Bogdanor discusses parliamentary sovereignty in his journal and he also agrees with The New British Constitution as ‘Parliament’s sovereignty was in fact limited by the European Communities Act… Parliament may still be the dominant institution in the British political system, it is no longer omnipotent.’ [15]Suggesting that although Parliament plays a crucial role in the political system and within the concept of law making it may not be the only legislative body that holds significant power; this directly opposes Dicey’s theory of parliamentary supremacy.

Overall, Dicey’s doctrine of the supremacy of Parliament is now out of place in the modern United Kingdom. I believe that there has been a divergence from Dicey’s orthodox view of the supremacy of Parliament. Self embracing sovereignty aims for Parliament to be able to bind its successors, this is crucial in order to establish permanence rather than living in the state of the unknown, for example not knowing what laws Parliament will legislate. Parliament supremacy is a general principle in the modern UK Parliament, however it is not as apparent as Dicey once believed as Parliament ‘can be politically sovereign whilst enjoying a limited legislative power through the acceptance of self embracing theories,’ as discussed by Alison Young.[16]

Bibliography

Cases

• Jackson v Attorney- General [2005] UKHL56 Lord Hope [104]
• R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603
• Pickin v British Railways Board [1974] AC 765
• Thoburn v Sunderland City Council [2003]

Statutes

• Hunting Act 2004
• Parliament Act 1911
• Parliament Act 1949

Books

• AV Dicey, Introduction to the study of Law of the Constitution (10 ed.)
• Elliot, M., & Thomas, R.Public law  (Third ed.)

Journals

• Alison L. Young ‘Hunting Sovereignty; Jackson v Her Majesty’s Attorney General’
• Vernon Bogdanor ‘Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty’

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[1] Elliot, M., & Thomas, R.Public law  (Third ed.)

[2] AV Dicey, Introduction to the study of Law of the Constitution (10 ed.)

[3] Pickin v British Railways Board [1974] AC 765

[4] Elliot, M., & Thomas, R.Public law  (Third ed.)

[5] Elliot, M., & Thomas, R.Public law  (Third ed.)

[6] Jackson v Attorney- General [2005] UKHL56

[7] Parliament Act 1911

[8] Parliament Act 1949

[9] Hunting Act 2004

[10] Alison L. Young ‘Hunting Sovereignty; Jackson v Her Majesty’s Attorney General’

[11] Elliot, M., & Thomas, R.Public law  (Third ed.)

[12] Jackson v Attorney- General [2005] UKHL56 Lord Hope [104]

[13] R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603

[14] Thoburn v Sunderland City Council [2003]

[15] Vernon Bogdanor ‘Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty’

[16] Alison L. Young ‘Hunting Sovereignty; Jackson v Her Majesty’s Attorney General’