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Published: Fri, 02 Feb 2018
Principle of the absolute legislative sovereignty
‘Step By Step, Gradually But Surely, The English Principle Of The Absolute Legislative Sovereignty Of Parliament Which Dicey Derived From Coke And Blackstone Is Being Qualified.’
The statement above made by Lord Hope concerns a debate surrounding legislative sovereignty – as described by Professor Albert Venn Dice – which is currently subject to a number of apparent developments within the judicial courts. These developments are serving to redefine the traditional understanding of said principle and therefore qualify its current scope. There are several arguments involved in this discussion of absolute legislative sovereignty. Firstly, the extent to which the principle is still intact today requires prior consideration of the political and historical background to establish what the term ‘absolute legislative sovereignty’ implies. Following this shall be a discussion on how aside from case law, moves to join with the European Union and the enactment of the Human Rights Act are some of the gradual steps which qualify the idea of an absolute legislative authority itself. To conclude it seems that a qualification of absolute parliamentary sovereignty is hard to concrete. Yet the traditional Diceyan view is answerable to both political and legal events which have begun to change our perceptions on legislative sovereignty and its role in the UK.
In an effort to prevent the continuing exploitation of power by Monarchs previously experienced during the 18th Century, the need for checks and balances on powers of government was deemed necessary. This marked watershed in the transfer of political sovereignty from King to parliament brought along with it an inherent principle of Parliamentary supremacy. This stated that ‘…the freedoms of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. As a result, Courts should unequivocally recognise and enforce only an Act of Parliament passed by both Lords and Commons and with Royal Assent. This meant that the absolute sovereignty of Parliament became the ‘…keystone of the British Constitution…’and had the effect of overruling Coke CJ and Hobart CJ who both argued that an Act of Parliament, when contrary to natural law or God, could be declared as void. A point similarly made in Lord Reid’s judgement, British Railways v Pickin were it was said that ‘…any such idea was obsolete.’
As mentioned by Lord Hope, A.V. Dicey in An Introduction to the Study of the Law of the Constitution. argued for absolute parliamentary sovereignty as a guiding principle of the British Constitution. In this guiding principle Dicey referred to the principle as having both positive and negative limbs. The former being that Parliament can make or unmake any law whatsoever. The latter, which is far more important to this discussion, is that the legality of an Act of Parliament cannot be challenged in any British court. This does not mean that Parliament is supreme in all matters. The ‘separation of powers’ a term also coined by Dicey refers to the way in which power has been divided into three separate bodies; the executive, legislature and judiciary. Parliament does however require judicial obedience to Act of Parliament. In the sense it is the ultimate law-making body that is free to make or repeal any Act as it deems fit.
However the UK constitution differs to those in other jurisdictions such as the United States and France who have implied limits of legislative power in their written constitutions. As the UK holds an unwritten constitution, then where else is one to find qualifications as mentioned by Lord Hope? Dicey as we have discussed would argue that Parliaments Sovereignty has no legal limits to be found. Contrary to this view are those who argue that the courts are at liberty to deliberate on the validity of an Acts.
The decision held in Jackson v AG has caused for much debate over the question of parliamentary sovereignty. Here, the appellants challenged the Hunting Act 2004 Act based on the premise that it had been forced through by section 2(1) of the Parliament Act 1949. They contended that the 1949 Act and as follows the Hunting Act 2004 were both invalid legislature as they could only have been passed with the consent of the Commons, the Monarch and the House of Lords. Although the Lords held that both Acts in question were valid Acts of Parliament, judgements such as those from Lord Hope accredited the mere hearing of the appeal as ‘…an indication that the courts have a part to play in defining the limits of Parliament’s legislative sovereignty’. However this does not signify courts legislative power, only an advisory position. Winterton also suggests that disputes over the abuse of legislative power like that in Jackson‘…should be rectified by political means, not by encouraging abuse of judicial power’.
Furthermore the case of Pickin v British Railways Board involving the 1968 British Railways Act where Pickin – the claimant – called the courts to declare said Act as invalid. One may say that the unanimous decision against such a claim reflects Diceyan notions of legislative sovereignty, as it was decided that courts were not allowed to exercise that jurisdiction. However, as is proven in Jackson, the mere hearing of an appeal is a sure, subtle sign that qualifies legislative sovereignty. So, it should be said at this point that authority derived from case far is more favourably weighted in the direction of Dicey, yet one cannot discount the dicta in recent cases that does give importance to Lord Hopes statement.
The gradual manifestation of EC law has also countered Diceys absolute definition of legislative sovereignty ‘…moulding the law of Europe into a single whole which every country of the nine should obey.’Dicey’s principle deals with the question of International Law. There is good authority on domestic laws supremacy over international law, see Mortensen v Peters where the House of Lords ruled against the defendant declaring that there are no limits to Parliaments powers if passed in the correct manner. However, in considerations of EC law one encounters a second qualification – the European Communities Act 1972. This Act requires UK Courts to apply EC Law in accordance with principles laid down by the European Court of Justice.
When concerned with EC Law an important case to consider is R v Secretary of State for Transport ex parte Factortame Ltd (No.2). A point developed from this case was to accept that in certain circumstances Community Law will supersede Acts of Parliament. It serves to limit Parliaments sovereignty two fold; by limiting a legislative bodys’ practical competence under section 2(1) of European Communities Act 1972 and secondly by shaping judiciaries disputes over statute law. However in order for EC law to be fully enacted there must be a presumption of legislative intent as stated by Lord Denning in Maccarthys Ltd v Smith which could be used to argue that ultimate legislative power still rests in national Parliament, even when dealing with EC law.
Whilst it is argued that parliament does abdicate some proportion of legislative power to the EC, questions of qualification have also circulated the enactment of the Human Rights Act (HRA) 1998. Since its enactment the Act demands parliament must ensure that it legislates compatibly within the provisions of the European Convention of Human Rights (ECHR). As a result ECHR have become enforceable in domestic UK courts. However, parliamentary sovereignty seems to be retained in this case also since incompatibility of a domestic law with the HRA does not result in an Act of Parliament being immediate disregarded. As Lord Chief Justice Bingham of Cornwall stated, ‘The mode of incorporation does not empower judges…to overrule…Acts of Parliament…and which most fully respects the sovereignty of Parliament.’
Nevertheless the implications of such pressure ensures a check on legislative sovereignty. What’s more given Pickin and Jackson, although unable to overrule disputed Acts, the judiciary and courts do have power to call the Act into question and so ‘…it is likely to ensure that deliberate incompatibility is a rare event.’ However whether the HRA has acted as a qualifying signifier for legislative sovereignty is still uncertain. Can political pressure be considered a clear limit or just a moral guideline? Although not a legal parameter of absolute legislative authority, a factor described by Dicey is in practise kept in check by power from outside UK and swayed by the current ‘political morality’ rather than controlled via sure legal limitations. This gives reasons to believe that Parliaments legislative sovereignty, whilst still intact, is in its true form constituted and restricted by the very principle that allows for representative democracy.
What Lord Hope seems to be pointing towards is the gradual shifting in the way that absolute legislative authority is realised in practise. By outlining the various developments that have served to qualify what this legal principle concerns, it seems apparent that both legal and political factors have a part to play but that the ‘…limits of sovereignty clearly cannot be stated with any precision.’ Allen T.R.S agreed that in a debate over the nature of sovereignty, it ‘…can only be answered in terms of the political morality on which that order is based’. This seems particularly relevant if one is considering cases where judges are deliberating whether to overrule Acts of Parliament for there is no legal basis for such an act. However it can also be argued that ‘Parliament has…limited its own powers by the European Communities Act 1972 and, in a different way, by the Human Rights Act 1998’. Furthermore, case law does suggest that whilst yet to come to definitive positions about the scope of legislative authority, judges are willing to express opinions within orbita dictum that bring important points to the forefront. In conclusion it seems fair to say that case law holds no definitive answer. However recent dicta and political developments like UK membership in the European Community do shed momentary light on how the doctrine of absolute legislative sovereignty functions today.
Dicey, A.V., ‘Introduction to the Law of the Constitution’, 8th ed., (New York: The Macmillan Company, 1915)
Loveland, I., ‘Constitutional Law, Administrative Law and Human Rights: A critical introduction’, 5th ed., (Oxford University Press: Oxford, 2009).
Munro, C.R., ‘Studies in Constitutional Law’, 2nd. ed., (Oxford University Press: Oxford 2005).
Wade H., `The Basis of Legal Sovereignty’,  Cambridge LJ 172
Journals And Articles
Allan, T.R.S., ‘Limits of Parliamentary Sovereignty’, Public Law (Winter), 614-636, Sweet & Maxwell Ltd.
Mullen, T., ‘Reflections on Jackson v Attorney General: questioning sovereignty’, Legal Studies, Vol. 27, No. 1.,
Winterton, G., ‘Parliamentary supremacy and the judiciary’, Law Quarterly Review 97, 265-274, London: Sweet & Maxwell.
Application des Gaz v. Falks Veritas ‘,  3 All E.R. 57,
Dr Bonham’s Case , 8 Co. Rep. 113b, 118a, 77 E.R. 638, 652.
Jackson v Attorney General  4 All ER 1253;  UKHL 56.
Maccarthys Ltd v Smith,  QB 180 200.
Mortensen v Peters,  14 SLT 227.
Pickin v British Railways Board  AC 765;  2 WLR 208;  1 AER 609.
R v Secretary of State for Transport ex parte Factortame Ltd (No.2).  1 AC 603.
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