Introduction
The UK constitution is often described as being underpinned by the principle of parliamentary sovereignty, a doctrine historically understood to mean that Parliament holds supreme legislative authority. However, as Lord Hope articulated in Attorney General v Jackson ([2005] UKHL 56), this sovereignty is arguably no longer absolute, if indeed it ever was. This essay examines the accuracy of Lord Hope’s statement in the context of the contemporary UK constitution. It explores the traditional concept of parliamentary sovereignty, the evolving limitations imposed by domestic and international developments, and the implications for constitutional theory and practice. Ultimately, it argues that while parliamentary sovereignty remains a central tenet, its absoluteness has been significantly qualified in modern times.
The Traditional Doctrine of Parliamentary Sovereignty
Parliamentary sovereignty, as famously defined by A.V. Dicey, asserts that Parliament can make or unmake any law, and no court or other body can override its legislation (Dicey, 1885). This principle has long been viewed as the cornerstone of the UK’s unwritten constitution, reflecting the democratic ideal that elected representatives hold ultimate authority. Historically, cases such as Burmah Oil Co Ltd v Lord Advocate ([1965] AC 75) reinforced this by demonstrating Parliament’s ability to retrospectively alter legal outcomes, underscoring its unchallenged legislative power. Indeed, the doctrine suggests an absolute form of sovereignty, where no legal or political constraint can bind Parliament. However, even in Dicey’s era, questions arose about whether such absoluteness was entirely realistic, given the practical influence of political conventions and public opinion.
Contemporary Challenges to Absolute Sovereignty
In the contemporary context, several developments have challenged the notion of absolute parliamentary sovereignty. Firstly, the UK’s membership of the European Union (EU) from 1973 to 2020 introduced a significant qualification through the principle of EU law supremacy, as established in Costa v ENEL ([1964] ECR 585). The European Communities Act 1972 required UK courts to prioritise EU law over conflicting domestic statutes, a reality affirmed in R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) ([1991] 1 AC 603), where parliamentary legislation was effectively disapplied. Although Brexit has restored formal sovereignty post-2020, the lingering influence of EU-derived law and ongoing trade agreements suggest that international obligations continue to limit parliamentary freedom.
Secondly, the incorporation of the European Convention on Human Rights (ECHR) through the Human Rights Act 1998 (HRA) has further constrained sovereignty. While Parliament retains the legal power to repeal the HRA, courts can issue declarations of incompatibility under Section 4, exerting moral and political pressure to align legislation with human rights norms, as seen in cases like A v Secretary of State for the Home Department ([2004] UKHL 56). Additionally, devolution to Scotland, Wales, and Northern Ireland since the late 1990s has fragmented legislative authority, creating practical limits on Westminster’s dominance, even if legal supremacy persists.
Judicial and Political Dimensions
The judiciary has also played a role in questioning absolute sovereignty. Lord Hope’s statement in Jackson ([2005] UKHL 56) itself, concerning the Hunting Act 2004, reflects judicial willingness to debate the limits of parliamentary power, particularly regarding the rule of law. Some judges, such as Lord Steyn, have suggested that in extreme circumstances—such as legislation undermining fundamental rights—courts might resist parliamentary will, though this remains speculative. Furthermore, political realities, including public referendums (e.g., the 2016 Brexit vote), illustrate that parliamentary decisions are often shaped by external democratic pressures, arguably diluting the notion of unfettered sovereignty.
Conclusion
In conclusion, Lord Hope’s assertion that parliamentary sovereignty is no longer absolute holds considerable weight in the context of the contemporary UK constitution. While the doctrine remains a foundational principle, its absoluteness has been eroded by EU law (even post-Brexit), human rights obligations, devolution, and judicial scrutiny. These developments reveal a constitution in flux, balancing traditional notions of sovereignty with modern constraints. Arguably, this evolution reflects a more nuanced, pragmatic system, though it raises questions about the coherence of sovereignty as a unifying concept. Ultimately, while Parliament retains ultimate legal authority, its exercise is far from unconstrained, confirming that absolute sovereignty, if it ever existed, is indeed a relic of the past.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Attorney General v Jackson [2005] UKHL 56.
- Burmah Oil Co Ltd v Lord Advocate [1965] AC 75.
- Costa v ENEL [1964] ECR 585.
- R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603.
- A v Secretary of State for the Home Department [2004] UKHL 56.
