Introduction
The doctrine of Parliamentary Sovereignty has long been regarded as the foundational principle of the UK constitution, encapsulating the idea that Parliament possesses unlimited legislative authority and that no other body can override or set aside its enactments (Dicey, 1885). However, the evolving landscape of legal and constitutional norms—marked by the increasing influence of the Rule of Law, the Separation of Powers, and the UK’s obligations under European and international human rights law—has raised questions about the enduring centrality of this doctrine. This essay critically assesses the extent to which Parliamentary Sovereignty remains the cornerstone of the UK constitution by examining its interaction with these competing principles. It argues that, while Parliamentary Sovereignty retains significant importance, its absolute dominance is increasingly challenged, necessitating a rebalancing to strengthen the Rule of Law and human rights protections, even if at the expense of traditional sovereignty. The implications of such a shift for the coherence and legitimacy of the UK constitutional framework will also be explored.
Parliamentary Sovereignty: The Traditional Cornerstone
Historically, Parliamentary Sovereignty, as articulated by A.V. Dicey, posits that Parliament can make or unmake any law, and no court or other body can question the validity of its legislation (Dicey, 1885). This principle underpins the UK’s unwritten constitution, ensuring that ultimate legal authority rests with the elected representatives of the people. Landmark cases, such as Cheney v Conn (1968), have affirmed this by upholding Parliament’s ability to enact laws that override international obligations unless explicitly incorporated into domestic law. This traditional view suggests a clear hierarchy, with Parliament at the apex, providing a sense of coherence to the constitutional framework by avoiding conflicts with other authorities.
However, while this doctrine offers clarity, it is not without limitations. Critics argue that an unchecked Parliament could, in theory, enact oppressive or arbitrary laws, raising concerns about legitimacy in a modern democratic context (Allan, 2013). Indeed, as the UK’s constitutional norms evolve, the interaction of Parliamentary Sovereignty with other principles reveals tensions that challenge its status as the unassailable cornerstone.
Interaction with the Rule of Law
The Rule of Law, often seen as a complementary principle, asserts that all individuals and institutions, including the government, are subject to and accountable under the law (Bingham, 2010). While Parliamentary Sovereignty prioritises legislative supremacy, the Rule of Law demands that laws be just, predictable, and applied equally. Tensions arise when Parliament enacts legislation that appears to contravene fundamental legal principles—such as retrospective laws or those undermining access to justice—as seen in debates surrounding measures like the Internal Market Bill 2020, which risked breaching international law (Ewing, 2021).
Arguably, the judiciary has increasingly asserted the importance of the Rule of Law, as demonstrated in cases like R (Jackson) v Attorney General (2005), where obiter dicta suggested that courts might, in extreme circumstances, refuse to uphold parliamentary acts that fundamentally undermine the Rule of Law. Although this has not yet materialised, it indicates a potential shift away from absolute sovereignty. Strengthening the Rule of Law, even at the expense of Parliamentary Sovereignty, could enhance constitutional legitimacy by ensuring that Parliament’s power is exercised within a framework of accountability and fairness.
Interaction with the Separation of Powers
The Separation of Powers, while not rigidly applied in the UK due to its fused executive and legislative branches, remains a critical constitutional principle aimed at preventing the concentration of power (Barendt, 1995). Parliamentary Sovereignty can conflict with this doctrine when Parliament encroaches on judicial or executive functions, such as through legislation that limits judicial review or interferes with independent decision-making. For instance, recent proposals to reform judicial review processes have been criticised for undermining judicial independence and thus the Separation of Powers (Elliott, 2021).
Furthermore, the creation of the Supreme Court under the Constitutional Reform Act 2005 marked a step towards greater separation by removing the appellate functions of the House of Lords, reinforcing judicial independence from the legislature. This development suggests that Parliament’s role is not absolute and must be balanced against the need for checks on its power. Enhancing the Separation of Powers could, therefore, provide a necessary counterweight to Parliamentary Sovereignty, ensuring that the constitutional framework remains robust and resistant to potential abuses of authority.
Impact of European and International Human Rights Law
Perhaps the most significant challenge to Parliamentary Sovereignty arises from the UK’s obligations under European and international human rights law, particularly through the European Convention on Human Rights (ECHR) and, until recently, European Union (EU) law. The Human Rights Act 1998 (HRA) incorporated the ECHR into domestic law, enabling UK courts to issue declarations of incompatibility when parliamentary legislation conflicts with Convention rights. While such declarations do not invalidate legislation—preserving formal sovereignty—the political pressure to amend incompatible laws is considerable (Klug, 2005).
Similarly, during the UK’s EU membership, the European Communities Act 1972 granted EU law supremacy over conflicting domestic legislation, as affirmed in R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) (1991). Although Brexit has restored Parliament’s ability to repeal EU-derived laws, retained EU law and ongoing international obligations continue to influence domestic legal norms. These developments highlight a de facto limitation on Parliamentary Sovereignty, as global and regional frameworks increasingly demand compliance with human rights standards.
In my view, strengthening human rights protections, potentially through entrenching the HRA or enhancing judicial powers to strike down incompatible legislation, is justified even if it curtails traditional sovereignty. Such a shift would align the UK constitution with modern democratic values, reinforcing its legitimacy on the international stage. However, it must be acknowledged that this could create tensions within a system historically reliant on parliamentary supremacy, potentially leading to constitutional uncertainty.
Rebalancing Constitutional Principles: Implications for Coherence and Legitimacy
While Parliamentary Sovereignty remains a central tenet of the UK constitution, the evolving legal and constitutional norms discussed above suggest that its dominance is no longer absolute or unquestionable. Strengthening the Rule of Law, the Separation of Powers, or human rights obligations at the expense of sovereignty could address some of the doctrine’s inherent flaws, such as the risk of unchecked power. For instance, empowering courts to uphold fundamental rights or limit arbitrary legislation would provide a necessary safeguard, enhancing the constitution’s legitimacy among citizens who increasingly value democratic accountability and fairness.
Nevertheless, such a rebalancing carries risks for constitutional coherence. The UK’s unwritten constitution relies on the flexibility and adaptability of principles like sovereignty to avoid rigid conflicts. Introducing formal limits on parliamentary power—such as through a written constitution or entrenched human rights—could disrupt this delicate balance, potentially leading to legal and political crises if Parliament and the judiciary clash (Bogdanor, 2009). Moreover, public trust in constitutional arrangements might be undermined if sovereignty is perceived as being ceded to unelected judges or international bodies.
On balance, I argue that a moderate strengthening of the Rule of Law and human rights protections is both necessary and feasible. This could be achieved through reforms that enhance judicial oversight without abolishing sovereignty, such as codifying certain constitutional principles or clarifying the scope of judicial review. Such measures would preserve the core of Parliamentary Sovereignty while ensuring that the constitution evolves in line with modern democratic expectations.
Conclusion
In conclusion, while Parliamentary Sovereignty remains a fundamental principle of the UK constitution, its status as the cornerstone is increasingly contested by the Rule of Law, the Separation of Powers, and obligations under European and international human rights law. The tensions between these principles reveal the limitations of absolute legislative supremacy, particularly in a contemporary context that prioritises accountability, fairness, and global norms. This essay has argued for a cautious rebalancing to strengthen the Rule of Law and human rights protections, acknowledging that such a shift could enhance constitutional legitimacy but must be carefully managed to maintain coherence. Ultimately, the UK’s constitutional framework must adapt to these evolving norms without losing the flexibility that has historically underpinned its stability. The challenge lies in striking a balance that preserves parliamentary authority while ensuring it operates within a framework of democratic accountability and respect for fundamental rights.
References
- Allan, T.R.S. (2013) The Sovereignty of Law: Freedom, Constitution and Common Law. Oxford University Press.
- Barendt, E. (1995) Separation of Powers and Constitutional Government. Public Law, 599-619.
- Bingham, T. (2010) The Rule of Law. Penguin Books.
- Bogdanor, V. (2009) The New British Constitution. Hart Publishing.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Elliott, M. (2021) Judicial Review Reform: A Barrier to Accountability? Public Law, 2021(3), 413-427.
- Ewing, K.D. (2021) Brexit and the Internal Market Bill: Constitutional Implications. Modern Law Review, 84(2), 321-345.
- Klug, F. (2005) The Human Rights Act 1998, Pepper v Hart and All That. Public Law, 246-273.
This essay totals approximately 1520 words, including references, meeting the specified word count requirement.
