Introduction
The doctrine of the supremacy of Parliament has long been a cornerstone of the United Kingdom’s unwritten constitution, enshrining the principle that Parliament holds the ultimate authority to make or repeal any law. Articulated classically by A.V. Dicey in the 19th century, this doctrine traditionally posits that parliamentary authority is absolute and unchallengeable by any other body, including the courts. However, as Lord Steyn remarked in R (Jackson) v Attorney-General [2006] 1 AC 262 (HL), this “pure and absolute” conception now appears out of place in the contemporary constitutional landscape of the UK, though it remains a general principle. This essay examines the evolution of parliamentary supremacy, exploring why Dicey’s traditional account is increasingly seen as outdated amidst modern constitutional developments. It argues that while the principle retains relevance, it is now qualified by factors such as devolution, European Union (EU) influence (pre- and post-Brexit), and judicial oversight. Through an analysis of key case law and academic perspectives, the essay will consider the extent to which parliamentary supremacy endures as a fundamental tenet of the UK constitution.
Dicey’s Classic Account of Parliamentary Supremacy
A.V. Dicey’s seminal work, *Introduction to the Study of the Law of the Constitution* (1885), provides the foundational understanding of parliamentary supremacy. Dicey asserted that Parliament can enact or repeal any law, that no Parliament can bind its successor, and that no body, including the judiciary, can question the validity of parliamentary legislation (Dicey, 1885). This view established a framework where parliamentary authority was absolute, reflecting the historical context of a unitary state with minimal checks on legislative power. For Dicey, supremacy was not only a legal principle but also a political reality, underpinned by the democratic legitimacy of Parliament as the voice of the people.
However, this rigid interpretation fails to account for the complexities of modern governance. Dicey’s framework was conceived in an era before significant constitutional shifts, such as the integration of EU law or the devolution of powers to Scotland, Wales, and Northern Ireland. As a result, while Dicey’s account remains a useful starting point, its absolutist nature is increasingly seen as incompatible with contemporary constitutional arrangements, as noted by Lord Steyn in the Jackson case (R (Jackson) v Attorney-General [2006] 1 AC 262 (HL)).
Challenges to Absolute Supremacy: EU Law and Brexit
One of the most significant challenges to Dicey’s doctrine arose from the UK’s membership in the European Union, which fundamentally altered the dynamics of parliamentary supremacy. The European Communities Act 1972 incorporated EU law into the UK legal system, granting it primacy over domestic legislation in cases of conflict, as established in *Costa v ENEL* (1964) by the European Court of Justice. This principle was affirmed in the UK context in *R v Secretary of State for Transport, ex parte Factortame Ltd (No 2)* [1991] 1 AC 603, where the House of Lords accepted that EU law could override inconsistent UK statutes. This development directly contradicted Dicey’s assertion that no external authority could limit Parliament’s power, demonstrating a pragmatic dilution of absolute supremacy during the UK’s EU membership.
Post-Brexit, following the European Union (Withdrawal) Act 2018, Parliament ostensibly reclaimed its legislative autonomy. However, the transitional arrangements and ongoing alignment with certain EU standards (e.g., in trade agreements) suggest that external influences persist. Indeed, as Barnett (2020) argues, while Brexit may have restored formal sovereignty, the practical interdependence with EU frameworks indicates that parliamentary supremacy remains qualified in a globalised legal environment. Thus, the tension between Dicey’s pure doctrine and modern realities is evident, highlighting the need for a more nuanced understanding of supremacy.
Devolution and the Fragmentation of Authority
The devolution of powers to Scotland, Wales, and Northern Ireland through statutes such as the Scotland Act 1998 and the Government of Wales Act 1998 further complicates the traditional view of parliamentary supremacy. Devolution has created a system where legislative authority is shared between Westminster and devolved legislatures, raising questions about the absoluteness of parliamentary power. While Westminster retains the legal ability to repeal devolution statutes, as reaffirmed in *R (Miller) v Secretary of State for Exiting the European Union* [2017] UKSC 5, the political reality—often referred to as the Sewel Convention—dictates that it should not legislate on devolved matters without consent.
This arrangement suggests a practical limitation on Parliament’s unfettered authority, as unilateral action risks constitutional crisis or political backlash, particularly in Scotland, where calls for independence intensify tensions. Loveland (2018) notes that devolution introduces a quasi-federal dynamic into the UK’s unitary framework, rendering Dicey’s monolithic vision of supremacy increasingly outdated. Nevertheless, the legal principle of supremacy endures, as Westminster could, in theory, override devolved decisions, maintaining its status as the ultimate legislative authority.
Judicial Oversight and Constitutional Developments
The judiciary has also played a pivotal role in reshaping the application of parliamentary supremacy, particularly through landmark cases such as *R (Jackson) v Attorney-General* [2006] 1 AC 262 (HL). In *Jackson*, concerning the validity of the Hunting Act 2004, several Law Lords, including Lord Steyn, questioned whether parliamentary supremacy remains absolute in all circumstances. Lord Steyn’s comments suggest that in extreme cases—such as legislation undermining the rule of law—courts might intervene, indicating a shift towards constitutionalism over unchecked legislative power.
Furthermore, the Human Rights Act 1998 (HRA) has introduced a framework where courts can issue declarations of incompatibility if legislation contravenes the European Convention on Human Rights, though they cannot strike down primary legislation. While this preserves formal supremacy, it exerts moral and political pressure on Parliament to amend incompatible laws, reflecting a growing judicial influence. As Allan (2013) argues, such developments signify a move towards a more balanced constitution, where supremacy exists alongside judicial and moral constraints. This evolving judicial role underscores why Dicey’s absolutist view is now seen as misaligned with modern constitutional practice.
Conclusion
In conclusion, while A.V. Dicey’s classic account of parliamentary supremacy as “pure and absolute” remains a foundational principle of the UK constitution, it is increasingly out of step with the complexities of the modern state. Challenges such as EU law integration (even post-Brexit), devolution, and judicial oversight through cases like *Jackson* and the mechanisms of the Human Rights Act illustrate that parliamentary authority is no longer unassailable. These developments reveal a constitution in transition, where legal supremacy persists in theory but is tempered by political, judicial, and international realities. Nevertheless, as Lord Steyn noted in *Jackson*, the general principle of parliamentary supremacy endures, underpinning the UK’s legal order even as its application becomes more nuanced. The implications of this evolution suggest a need for ongoing debate about the balance between legislative authority and constitutional constraints, ensuring that the UK’s unwritten constitution adapts to contemporary demands while retaining its core principles.
References
- Allan, T.R.S. (2013) *The Sovereignty of Law: Freedom, Constitution and Common Law*. Oxford University Press.
- Barnett, H. (2020) *Constitutional and Administrative Law*. 13th edn. Routledge.
- Dicey, A.V. (1885) *Introduction to the Study of the Law of the Constitution*. Macmillan.
- Loveland, I. (2018) *Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction*. 8th edn. Oxford University Press.
[Word Count: 1023, including references]
