Before reaching his decision, Lord Steyn argued that an action such as restructuring the House of Lords as asserted by the Attorney General, was a constitutional issue requiring legislative authority. In his argument, he stated that a danger existed where the 1949 Act could be used to bring about unpopular legislation. He however clarified that the case did not present any constitutional issues. In relation to the Diceyan, Lord Steyn’s stated;
“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.”
Despite the acknowledgement that the doctrine is outdated, Lord Styen, like the other judges, upholds parliament’s supremacy. Judges take their own initiative to review legislation where it conflict with individual rights. This process is however inadequate because it not a formally recognised and is on a case by case basis. Parliamentary supremacy therefore, depends a lot on how the judges apply the law.
The role of judges has also been emphasised by Dworkin who argues that judges should apply the law as intended by parliament. He supports the theory of parliamentary supremacy by stating that the community should be governed by elected people. Judges he asserts, are not elected, thus should not legislate. The question then arises as to whether more power should be given to judges or whether there should be more checks and balances on parliament.
Under the doctrine that parliament cannot bind its successors; courts may find themselves bound by later statute, even though it conflicts with earlier decisions. There would be broad repercussions, if the next parliament decided to repeal the European Communities Act 1972. Though there are economic, and socio political reasons that may limit this kind of extreme action, the power to do so exists.
Having discussed the extent of parliamentary powers, I will now discuss its internal and external influences. A major internal influence is the political power of the electorate. Parliament would be careful not to displease the electorate by the introduction of laws that seem unpopular. As advanced by Thomas Paine, a social contract exists between the state and the electorate. He advances the theory that the rights of man are held in trust by the state. These rights must be protected from abuse. Similarly, the notion that political sovereignty belongs to the people and not with parliament is advanced by John Locke. It therefore follows that parliament may have the legal sovereignty but is accountable to the electorate who hold the political power with their vote.
The evolving rules of law also bring the doctrine of supremacy under pressure. The justification behind the doctrine of parliamentary sovereignty has been hotly debated. It is believed that sovereignty is held by the government of the day, which by simple majority can easily pass any legislation. This assumption is coming under criticism, because the party in parliament does not always have majority votes in general elections, and is therefore unjust. A more representative approach is preferred.
Devolution is a major influence on sovereignty of UK parliament. As asserted by Lord Hope in Jackson, The Scotland Act 1998 ensured that Scotland retained it’s own legal system since the Union with England in 1707, giving Scotland wide law making powers in selected areas. Though the Westminster parliament may infringe on these powers, it recognises the political power held by the Scottish people and would require the consent of the Scottish people when advancing unpopular legislation in relation to the Scottish parliament.
One of the greatest external influences is presented by the joining of the European Union by the UK. By so doing the UK accepted a new legal order. In essence Community law takes precedence over inconsistent national law. New rights are conferred on individual citizens while new obligations are created on member states. This presents a problem to sovereignty because judges now have an obligation to override legislation that is inconsistent with community law. This situation was made clear by the cases of Costa v Ennel Case 6/64 (1964) ECJ, and R v Secretary of state for Transport ex parte Factortame (No 2) (1991) where it was established that directly applicable EC law overrides inconsistent UK law . The implication is that Acts of Parliament can be challenged. Member states now have an obligation to correct any national laws inconsistent with EU law. It seems unlikely; therefore, that while the UK remains a member state, that the Diceyan theory of parliamentary supremacy will be preserved.
The attempts of the Convention on Human Rights to protect the rights of individuals have become a major influence on the UK law. It wasn’t until 1998 that the UK government made a formal attempt to protect individual human rights. It is therefore, not surprising that a decision was made against the UK by the EHCR in Golder v United Kingdom 1975 1 EHRR 524. Though the 1998 Act does not invalidate an Act of Parliament, it nevertheless gives rights to individuals who may seek recourse from the European Court of Justice (ECJ). Against this background it is in the interest of the judges to ensure that the Act complies with Human Rights.
A recent development has been the proposal for an independent supreme court. The current position is that the Law Lords operate as a committee of the House of Lords. The appellate committee and the House of Lords receive appeals from relevant courts. Questions have been raised regarding the transparency of the House of Lords where functions overlap and where the highest court of appeal sits within parliament. Thus, in recent years there have been calls for the creation of a new free standing institution separating the highest appeal court from the second house of parliament, and removing the Lords of Appeal in Ordinary from the legislature. The Government has taken a step towards establishing a supreme court under S 23 of the Constitutional Reform Act 2005 which simply states “there shall be a Supreme Court of the United Kingdom”. It is the government’s opinion that this will reflect and enhance the independence of the judiciary. There has been opposition to develop a supreme court alongside the US model as it would be a threat to the UK constitutional tradition. A question arises as to whether the creation of a supreme court by parliament would mean that parliament transfers it’s authority to the Supreme Court thus eliminating its own sovereignty.
The aspect of the Diceyan doctrine of parliamentary sovereignty in the UK has changed in recent years, and this process of change will continue during the present century. The notion of unlimited parliamentary sovereignty no longer makes legal or constitutional sense. To answer the question posed by this essay, the comments made by Lord Steyn and other judges in Jackson, while accepting the supremacy of parliament, points out, that the introduction of various Acts, in particular, the 1972 Act, that gives judges the right to disregard inconsistent domestic law; The Human Rights Act 1998 that creates a new point of constitutional balance between parliamentary and judicial supremacy, and the Scotland Act; that provides the potential to acquire a political authority in matters of Scottish law, and as stated by Jowell [2006] PL 571, the discussion by the 9 judges in Jackson suggest that the doctrine of UK parliamentary supremacy has no place in a modern constitution
Constitution normally refers to the legal document setting out the framework for the nation or state, giving legitimacy to the government. It also sets out the rules which govern institutions. Having no written constitution, critics have questioned the existence of a UK constitution. UK constitution based on a long historical background and has evolved rather than been formed. It has as much authority as a written constitution. The principle of parliamentary supremacy is a major element of the UK constitution; Bernett, Hilaire, “Constitutional and Administrative”, 2006, 6-7, Routledge-Cavendish
Also referred to as ‘sovereignty’
Legislation denotes law making powers. Dicey asserts that this supremacy is the dominant aspect of UKs political institutions. There are no limits as to what parliament can legislate on, no court can challenge or disregard valid UK Acts. Marshall Enid, 1999 “General Principles of Scots Law”140, W. Green Sweet and Maxwell, For a detailed definition where political and legal sovereignty is distinguished see, Bernett, Hilaire, “Constitutional and Administrative”, 2006, p 164, Routledge-Cavendish
As explained by Salmond in Bernett Hilaire, pp162- 163, ‘the source of this power is historical, thus it is not enacted’, and as HWR Wade states, ‘the rule is above the reach of statute’
This process was an attempt to reduce the power of the crown, and give parliament more power to make laws
Parliament here refers to the House of Commons, House of Lords and the Monarch.
The House of commons being the most important element of parliament
Enid A Marshall, “General Principles of Scots Law”, 1999, W Green Sweet and Maxwell
Case of asylum, Minister was in contempt of court, though the court and the minister are both crown officials. It was decided that English courts have authority to take action against Ministers of the crown. See the position taken by Scottish courts in Davidson v Scottish Ministers [2005] UKHL 74,
Jowell Jeffrey and Dawn Oliver, 2000, “The Changing Constitution” 35-38, Oxford University Press. Austin’s describes law as a set of commands, while JLA Hart sees law as rules rather than commands, Bernett Hilaire, ‘supra’ 154
Jowell Jeffrey ‘supra’ pp 35-38, this notion of the rule of law was also upheld by Lord Hope in para 107, Jackson case, see also Bernett, p 162 on Sovereignty as a rule of common law. Dicey’s comments on lawful authority, equality; autonomous judiciary; liberal individualism- has been criticised by several commentators. TRS Allan sees the rule of law as bridging the gap between legal and political doctrine of supremacy. (See judicial reviews)
Also known as statutes, Acts of parliament lay down the basic law of the UK as intended by Parliament. They cannot be challenged in a court of law
The case concerned the unilateral declaration of independence in 1965 by the Rhodesian government
The Law of Constitution (10th ed.1959,p 40), as cited in the Jackson case at 177, see also Pickin v British Railways Board (1974) HL
The Hunting Act makes it illegal to hunt wild animals with wild dogs. This Act was based on the 1949 Act, which the appellants claimed was also invalid.
The UK constitution requires that a public bill passes through the various stages in the two houses before receiving the Royal Accent.
The Appellants claimed that the 1949 Act was invalid. This was rejected by Sir Sydney who asserted that for centuries the Act has been accepted as constitutional, thus was a valid Act
The House of Lords, The House of Commons, and the Monarch make up parliament. The House of Lords is the second chamber of the upper house consisting of almost 1300 members. Lords are not elected.
The 1911 Act confers authority to the House of Commons to present a bill for Assent with or without the consent of the House of Lords if rejected three times or where a month elapsed in relation to money bills.
In their deliberations the Lords argued that the purpose of the 1911 Act was not to delegate authority but to restrict the powers of the Lords in defeating the work of the Commons.
Lord Bingham at 39-40, Lord Hope of Craighead at 104 asserts that parliament is supreme, though he admits its limitations, Lord Walker, at 179 regarding the validity of the Acts, Lord Brown at 195 and
Lord Styen’s decision in Jackson at 100 - 103
This view is shared by Hans Kelsan and Hart who both claim that rules when accepted by judges become the ultimate authority, Bernett Hilaire, (ibid p 162)
Jowell Jeffrey and D. Oliver, 2000, “The Changing Constitution” 49-51, Oxford University Press
Dworkin Ronald, “Taking Rights Seriously”, 1977, Bristol Typesetting Co,
Dicey asserts that the electorate hold the political power and not parliament, as above
Dicey also gives a distinction between the two powers. Hilaire Barnett, Constitutional and Administrative, 2006, Routledge-Cavendish pp 151-161
Jowel Jeffrey and Dawn Oliver, 2000, “The Changing Constitution” p39, Oxford University Press
Based on first past the post electoral system, The candidate who gets the most votes wins regardless of whether he or she has more than 50% support.
Little, G, a Professor of Law, argues that the Diceyan theory of sovereignty will become a major issue in the future as the Scottish Parliament continues to develop. Scottish courts, he claims, question this sovereignty in relation to the Treaty of Union 1707, accessed on 27 November 2006
Certain restrictions have been imposed on the Scottish parliament such that it may not make laws out-with it’s devolved powers; not to make laws incompatible with community law, nor with rights secured under the European Convention.
The plaintiff sought to avoid paying electricity bill on the basis that Italian legislation breached EU law.
Conditions under the Merchant Fishing Act 1988 where the introduction of conditions relating to nationality, domicile, and residence in the UK had to be satisfied before the boats were registered for fishing were found to infringe on individual rights
Contrary to the Diceyan theory. Jeffrey Jowell and Dawn Oliver,2000 ‘The Changing Constitution’. Oxford University Press)
The Changing constitution. ‘supra’ Page 45 – 50
Human Rights Act 1998 was passed providing a formal route for individuals to seek remedies
See the cases of R v Secretary of State for the Home Department ex parte Simms (2000) and Thorburn v Sunderland City Council (2002), Bernett, Hilaire, “Constitutional and Administrative, 190
Dickson in his article suggests that the Law Lords have recently had an interest in the rule of law and in particular have made their position on human rights clear, re: foreign detainees at Bemarsh prisons, see Dicksons article , however some critics are not convinced that this is a real change
, A constitutional paper produced by the Department for Constitutional Affairs, accessed on the 20th November 2006, The proposed new court will be a UK body separate from England Wales, Scotland and Northern Ireland but will act as the Supreme Court for all.
, A supreme Court for the United Kingdom, Policy paper, accessed on 29 Nov 2006
Section 3 and 4 of the HRA 1998
It is claimed that Scotland has a partially written constitution which is based on The Scotland Act 1998
This view was shared by TRS Allan when he stated that “what we can be certain about is that the future constitutional developments will not be restricted by what may be no more than an outdated straitjacket, and the past decisions will not be determinative of all future issues” as cited by Jowell Jeffrey and Dawn Oliver, The Changing Constitution, 2000, Oxford University press p 61