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Parliamentary Sovereignty
Public Law 1 (LW1PL1)
University of Reading
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‘The judiciary in the United Kingdom has played an important role in constraining Parliament’s freedom to act, prompting a change in the traditional understanding of parliamentary sovereignty.’
Critically discuss in light of recent case-law
The traditional understanding of parliamentary sovereignty has been defined by Professor A. Dicey as the Parliament being able 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 override or set aside the legislation of Parliament’. 1 Essentially, parliamentary sovereignty refers to the Parliament having supreme legal authority in the United Kingdom, the main limit to this unrestrained legislative power being the inability to pass a law that its successors cannot repeal. 2 This essay will ultimately argue that the judiciary has, to an extent, limited Parliament’s freedom to act, however, the Parliament still remains to be a supreme power.
The role of the judges in the legal order has always been controversial, 3 and this debate has intensified along with the newly passed laws, one of which was the enactment of The Human Rights Acts 1998 (HRA). Although supposedly, the Act was carefully and subtly drafted to preserve the principle of parliamentary sovereignty, 4 whilst at the same time trying to provide fundamental rights and freedoms, 5 its passing has also arguably given the judiciary certain power over the Parliament. For example, the judiciary has been given authority to review Acts of Parliament and the right to assess their compatibility with the European Convention on Human Rights 1953 (ECHR). 6 More specifically, section 4 of the HRA states
1 A. V Dicey, Introduction To The Study Of The Law Of The Constitution (Liberty/Classics 1982). 2 Hamish R. Gray, 'The Sovereignty Of Parliament Today' (1953) 10 The University of Toronto Law Journal. 3 Michael Taggart, The Province Of Administrative Law (Hart Publishing 1997). 4 M. Elliott, 'United Kingdom: Parliamentary Sovereignty Under Pressure' (2004) 2 International Journal of Constitutional Law. 5 'The Human Rights Act | Equality And Human Rights Commission' (Equalityhumanrights, 2020) <equalityhumanrights/en/human- rights/human-rights-act> accessed 15 February 2020. 6 Thomas Raine, 'Judicial Review Under The Human Rights Act: A Culture Of Justification' (2013) 1 N. L. Rev. 81.
that it is up for the court to determine whether or not ‘primary legislation is compatible with a Convention right’ and if they are not satisfied with it , they have to power to deem it as ‘incompatible’, 7 something the courts did not previously do. This was the case in A and others v Secretary of State for the Home Department [2004], 8 where the courts declared an Act as incompatible and so this had to be amended to one that was. Furthermore, Section 8 of The HRA clearly says that if the court finds an act to be unlawful, they are empowered to ‘grant relief or remedy’. 9 As a result, the judiciary is perhaps limiting parliament’s freedom to act as the courts are in charge of reviewing decisions made by the parliament itself. This does not, however, mean that the courts are becoming more influential than the Parliament. Whilst the government has at a point, considered giving power to the judiciary, it concluded that ‘courts should not have the power to set aside primary legislation, past or future’. 10 This is because allowing the courts to do so would confer on the judiciary a general power over the decisions of Parliament which would put the judiciary into serious conflict with the Parliament. 11 Whilst the HRA has provided the courts with the ability to disapply primary legislation that is incompatible with the European Conventions, it has not in any way given them the political power to judicially review primary legislation. Moreover, in the case of Ghaidan v Godin-Mendoza [2004], 12 Lord Millett confirmed that the Human Rights Act was in fact ‘carefully crafted to preserve the existing constitutional doctrine’ rather than to take away from it supremacy.
7 'Human Rights Act 1998' (Legislation.gov, 2020) <legislation.gov/ukpga/1998/42/section/4> accessed 15 February 2020. 8 [2004] UKHL 56 [19] 910 Ibid 'RIGHTS BROUGHT HOME: THE HUMAN RIGHTS BILL' (Assets.publishing.service.gov, 1997) <assets.publishing.service.gov/government/uploads/system/uploads/attachment_d ata/file/263526/rights> accessed 15 February 2020. 11 Ibid 12 [2004] UKHL 30
added to this by saying that ‘In the courts there may be arguments as to the correct interpretation of the enactment’ but ‘there must be non as to whether it should be on the statute book at all’ 19. During this period, the judiciary had set obvious boundaries as to the legislative supremacy and only recently, this has been questioned by them. This is evidently seen in the case of R (Jackson) v Attorney General [2005] 20. Whilst it may appear that this case was mainly concerned with the validity of the Acts of parliament, it also raised the question of can the courts comment on the enactment of the Acts. Lords Hope and Steyn explicitly stated their opinion on the supremacy of parliament, with Lord Hope declaring that parliamentary sovereignty is in fact ‘no longer, if it ever was, absolute’. 21 Lord Steyn added that as ‘pure and absolute’, Dicey’s orthodox principle on supremacy was, it ‘can now be seen to be out of place in the modern United Kingdom’. 22 Both of these cases , therefore, show how the judiciary is possibly prompting a change in the traditional understanding of parliamentary sovereignty and questioning whether is actually has ever existed.
Whilst the judiciary has in some instances , limited parliament , the most recent case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] 23 , reversely shows how the judiciary has in fact supported parliaments sovereignty. In this case, it was held that the prorogation of Parliament was ‘unlawful, null and of no effect’ 24 , especially if it in any way prevents or frustrates the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. 25 Based on this, the court concluded that the Prime Minister’s decision did have a frustrating affect on the Parliament and hence have fulfilled their role of ensuring that the rule of law is upheld and that the executive does not exceed its powers. Though some may say that the
19 Ibid 2021 [ 2005 ] UKHL 56 Mark Elliott, 'THE SOVEREIGNTY OF PARLIAMENT, THE HUNTING BAN, AND THE PARLIAMENT ACTS' (2006) 65 The Cambridge Law Journal. 22 23 Ibid 24 ([2019] UKSC 41Supremecourt, 2019) <supremecourt/cases/docs/uksc-2019-0192- judgment> accessed 16 February 2020. 25 Ibid
court should not be involved in such political matters, Lady Hale expressed that ‘the courts cannot shirk ‘their responsibilities merely because the ‘question raised is political in tone or matter’. 26 It therefore seems to be that in some cases, rather than the courts trying constrain parliament, they uphold the importance of the legal principle of parliamentary superiority.
To conclude, despite there evidently being several ways in which the Parliament has been constrained by the judiciary, the parliament, nevertheless, still remains largely sovereign. It still has the ability to repeal laws, still remains uncodified and if it wishes, can leave the EU which some may view as a way of regaining back sovereignty. As Lord Denning mentioned ‘someone must be trusted. Let it be the judges’. 27
2627 Ibid Lord Denning, What Next In The Law (Butterworths 1982).
'The Human Rights Act | Equality And Human Rights Commission' (Equalityhumanrights, 2020) <equalityhumanrights/en/human- rights/human-rights-act> accessed 15 February 2020
CASES A and others v Secretary of State for the Home Department [2004] UKHL 56 Ghaidan v Godin-Mendoza [2004] UKHL 30 Pickin v British Railways Board [1974] UKHL 1 R (Factortame Ltd) v Secretary of State for Transport [1991] 1 AC 603 R (Jackson) v Attorney General [2005] UKHL 56 R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41
Parliamentary Sovereignty
Module: Public Law 1 (LW1PL1)
University: University of Reading
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