Introduction
Parliamentary sovereignty is a cornerstone of the United Kingdom’s unwritten constitution, often described as the fundamental principle governing the relationship between Parliament and the judiciary. The doctrine asserts that Parliament holds supreme legislative authority, meaning that no court or other body can override or invalidate an Act of Parliament. This essay critically discusses the statement that courts in the UK are not permitted to disregard or invalidate an Act of Parliament on any grounds, exploring the traditional understanding of parliamentary sovereignty, its limitations in contemporary contexts, and the evolving role of the judiciary. Through an analysis of key case law (to be footnoted later), this discussion will highlight the complexities and tensions surrounding this doctrine, particularly in light of European Union law influences and the Human Rights Act 1998. Ultimately, it aims to assess whether this principle remains absolute or if judicial developments have introduced qualifications to its application.
The Traditional Understanding of Parliamentary Sovereignty
The classical view of parliamentary sovereignty, articulated by constitutional scholars like A.V. Dicey, posits that Parliament can make or unmake any law, and no person or body is recognised as having the right to override or set aside its legislation (Dicey, 1885). This principle implies that courts are bound to apply Acts of Parliament without question, regardless of perceived injustice or inconsistency with other legal norms. A pivotal case illustrating this is *Cheney v Conn* (to be footnoted later), where the court upheld a tax assessment based on an Act of Parliament, even though the revenue was allegedly used for purposes contrary to international law. The judiciary’s role was confined to interpreting and enforcing the statute as enacted, demonstrating the absolute authority of Parliament over judicial discretion.
This traditional view is further evident in Mortensen v Peters (to be footnoted later), where a Scottish court refused to consider international law as a basis for invalidating parliamentary legislation concerning fishing rights. The court reiterated that its duty was to apply the law as passed by Parliament, underscoring the doctrine’s implication that no external norms or principles can justify disregarding statutory provisions. However, while these cases affirm the conventional understanding, they also raise questions about the moral and practical implications of such unchecked power, particularly when legislation conflicts with fundamental rights or international obligations.
The Impact of European Union Law
The United Kingdom’s membership in the European Union (EU), until its withdrawal in 2020, introduced significant challenges to the notion of absolute parliamentary sovereignty. The European Communities Act 1972 incorporated EU law into domestic legislation, granting it supremacy over conflicting national statutes. This shift was unequivocally confirmed in the landmark case *R v Secretary of State for Transport, ex parte Factortame Ltd (No 2)* (to be footnoted later), where the House of Lords held that courts must disapply provisions of an Act of Parliament if they conflict with directly effective EU law. In this instance, the Merchant Shipping Act 1988 was set aside to uphold EU rights, marking a historic departure from the traditional doctrine.
This development suggests that, during the period of EU membership, courts effectively had the power to disregard parliamentary legislation under specific circumstances, challenging the assertion that they are never permitted to invalidate statutes. Although Brexit has since restored Parliament’s full legislative autonomy, the Factortame case remains a critical example of how external legal frameworks can limit sovereignty. It highlights a tension between the theoretical supremacy of Parliament and the practical realities of international legal obligations, raising the question of whether sovereignty is truly absolute even post-Brexit, given potential future international agreements.
The Human Rights Act 1998 and Judicial Interpretation
Another significant qualification to parliamentary sovereignty arises from the Human Rights Act 1998 (HRA), which incorporated the European Convention on Human Rights (ECHR) into UK law. While the HRA does not empower courts to strike down primary legislation, Section 4 allows them to issue a declaration of incompatibility if a statute conflicts with ECHR rights. A notable example is *A v Secretary of State for the Home Department* (to be footnoted later), where the House of Lords declared provisions of the Anti-terrorism, Crime and Security Act 2001 incompatible with the ECHR due to discriminatory detention practices. Although this declaration did not invalidate the Act, it exerted significant political pressure on Parliament to amend the law, illustrating an indirect judicial influence over legislation.
Moreover, Section 3 of the HRA requires courts to interpret legislation in a way that is compatible with ECHR rights ‘so far as it is possible to do so.’ This interpretative obligation was applied in Ghaidan v Godin-Mendoza (to be footnoted later), where the court adopted a strained interpretation of the Rent Act 1977 to extend rights to same-sex partners, arguably altering the statute’s original intent. While this does not equate to invalidating an Act, it demonstrates that courts can reshape parliamentary legislation through interpretation, subtly eroding the notion of absolute sovereignty. Indeed, such cases suggest that while courts may not formally disregard statutes, their powers under the HRA enable them to challenge Parliament’s authority indirectly.
Contemporary Challenges and Critiques
Beyond EU law and the HRA, broader critiques of parliamentary sovereignty question whether the doctrine remains tenable in a modern constitutional framework. Some scholars argue that the judiciary has assumed a more assertive role in recent decades, particularly in cases involving fundamental rights and the rule of law. For instance, in *R (Jackson) v Attorney General* (to be footnoted later), certain judicial opinions suggested that parliamentary sovereignty might not be absolute if legislation undermines core democratic principles, such as access to courts. Although obiter dicta and not binding, these remarks indicate a potential willingness to place constitutional limits on Parliament’s power, a notion unthinkable under Dicey’s traditional model.
Furthermore, devolution to Scotland, Wales, and Northern Ireland has introduced additional complexity, as devolved legislatures operate under statutory constraints that courts can enforce, as seen in AXA General Insurance Ltd v Lord Advocate (to be footnoted later). While this does not directly affect primary Westminster legislation, it reflects a fragmented constitutional landscape where sovereignty is no longer a singular, unqualified concept. These developments collectively challenge the statement under discussion, suggesting that while courts may not invalidate Acts of Parliament outright, their evolving role and external pressures create practical limitations on parliamentary supremacy.
Conclusion
In conclusion, the doctrine of parliamentary sovereignty traditionally implies that UK courts cannot disregard or invalidate an Act of Parliament on any grounds, as evidenced by cases like *Cheney v Conn* and *Mortensen v Peters*. However, this essay has critically examined how this principle has been qualified by external influences such as EU law, exemplified by *Factortame*, and domestic mechanisms like the Human Rights Act 1998, illustrated through *A v Secretary of State* and *Ghaidan v Godin-Mendoza*. Contemporary judicial attitudes and devolution further complicate the notion of absolute sovereignty, as seen in *R (Jackson)* and *AXA General Insurance*. Therefore, while courts remain formally bound by parliamentary legislation, their interpretative powers and external pressures arguably dilute the doctrine’s absolutism. The implications of this analysis suggest a need to reconsider whether parliamentary sovereignty can remain the unchallenged bedrock of the UK constitution in an era of increasing judicial assertiveness and global interconnectedness. This discussion lays the groundwork for further exploration of how far these qualifications might extend in future constitutional developments.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
