Introduction
This essay critically examines Lord Steyn’s statement in R (Jackson) v Attorney General [2005] UKHL 5 at [102], where he challenges the traditional doctrine of parliamentary sovereignty, describing it as outdated in the modern United Kingdom while still acknowledging it as a general constitutional principle. His remarks suggest that the judiciary, as the creators of this common law principle, might under certain circumstances qualify its application. This discussion will explore the implications of Lord Steyn’s view, focusing on the evolving relationship between parliamentary sovereignty and the rule of law. The essay will first outline the traditional understanding of parliamentary sovereignty, then analyse Lord Steyn’s perspective in the context of the Jackson case, and finally evaluate how the rule of law interacts with and potentially limits parliamentary authority. By considering a range of academic views and legal developments, the essay aims to provide a balanced assessment of whether parliamentary sovereignty remains absolute or is subject to judicial qualification in contemporary constitutional law.
The Traditional Doctrine of Parliamentary Sovereignty
The doctrine of parliamentary sovereignty, as articulated by A.V. Dicey, has long been considered a cornerstone of the UK constitution. Dicey (1885) famously described Parliament as having the power to make or unmake any law, with no person or body having the right to override or set aside its legislation. This principle establishes Parliament as the supreme legal authority, unbound by previous enactments or external constraints. Historically, this has meant that the courts must uphold parliamentary legislation, regardless of its content or moral implications, as their role is limited to interpretation rather than challenge.
However, this absolute view of sovereignty has faced increasing scrutiny in the modern era due to legal and political developments. The UK’s membership in the European Union (until Brexit in 2020) introduced the principle of EU law supremacy through the European Communities Act 1972, which required UK courts to disapply domestic legislation conflicting with EU law, as seen in cases like Factortame Ltd v Secretary of State for Transport (No 2) [1991] 1 AC 603. Furthermore, the Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law, empowering courts to issue declarations of incompatibility if legislation violates fundamental rights. These developments suggest that parliamentary sovereignty, while still a fundamental principle, is no longer ‘pure and absolute’ as Lord Steyn notes, prompting a re-evaluation of its scope in contemporary times.
Lord Steyn’s Perspective in R (Jackson) v Attorney General
In R (Jackson) v Attorney General [2005] UKHL 5, the House of Lords considered the validity of the Hunting Act 2004, passed under the Parliament Acts 1911 and 1949, which allow legislation to be enacted without the consent of the House of Lords under specific conditions. The claimants argued that the 1949 Act, itself passed under the 1911 Act, was invalid, challenging the scope of parliamentary authority to alter legislative processes. While the court ultimately upheld the validity of the Act, Lord Steyn’s obiter remarks at [102] are particularly significant. He suggests that the traditional view of parliamentary sovereignty is outdated in the modern constitutional framework, implying that the judiciary might, in exceptional circumstances, intervene to limit parliamentary power.
Lord Steyn’s observation that sovereignty is a ‘construct of the common law’ created by judges is critical. This assertion indicates that, as a judicial creation, the principle might not be immutable and could be subject to judicial modification if constitutional circumstances demand it. For instance, he raises the possibility of qualifying sovereignty if Parliament were to enact laws that fundamentally undermine democratic principles or the rule of law. This perspective aligns with broader academic debates about whether parliamentary sovereignty can coexist with increasing judicial oversight in areas such as human rights and constitutional norms (Barber, 2009). While Lord Steyn does not provide a definitive framework for such judicial intervention, his statement arguably opens the door to a more dynamic understanding of constitutional authority in the UK.
The Rule of Law as a Constraint on Parliamentary Sovereignty
The rule of law, another fundamental constitutional principle, is often seen as both complementary to and in tension with parliamentary sovereignty. As articulated by Dicey (1885), the rule of law encompasses the notions that no one is above the law, that legal rights must be protected by independent courts, and that laws should be clear and accessible. In the context of Lord Steyn’s statement, the rule of law might serve as a potential basis for judicial qualification of parliamentary power, particularly if legislation threatens core constitutional values.
Indeed, several judicial decisions and academic commentaries suggest that the rule of law could limit absolute sovereignty. For example, in cases involving human rights, courts have shown a willingness to interpret legislation in a manner consistent with fundamental principles, as demonstrated by the Human Rights Act 1998’s interpretative obligation under section 3. Moreover, Lord Hope in Jackson at [107] similarly hinted that there might be limits to parliamentary sovereignty, particularly if Parliament sought to abolish judicial review or other mechanisms protecting the rule of law. This perspective is supported by scholars such as Allan (2013), who argues that the rule of law imposes substantive constraints on legislative power, requiring laws to adhere to principles of justice and fairness.
However, the extent to which the rule of law can override parliamentary sovereignty remains controversial. Critics argue that allowing judges to qualify parliamentary authority risks undermining democratic legitimacy, as unelected judges could overstep into the political sphere (Ekins, 2010). Furthermore, parliamentary sovereignty ensures that elected representatives retain ultimate control over law-making, which is arguably central to the UK’s unwritten constitution. Balancing these competing principles thus remains a complex challenge, and Lord Steyn’s remarks highlight the judiciary’s potential role in navigating this tension, especially in extraordinary circumstances where legislative action might threaten the constitutional order.
Critical Evaluation and Implications
Lord Steyn’s statement in Jackson reflects a growing judicial awareness of the limitations of absolute parliamentary sovereignty in a modern democratic state. His suggestion that courts might qualify this principle under certain conditions aligns with the increasing influence of constitutional norms such as the rule of law and human rights protection. However, this view is not without contention. While developments like the Human Rights Act and EU law (pre-Brexit) have arguably constrained parliamentary power, the doctrine remains a central tenet of the UK constitution, and any judicial intervention to limit it would require clear justification to avoid accusations of overreach.
Moreover, the practical likelihood of courts qualifying sovereignty remains uncertain. The judiciary has traditionally been cautious in challenging Parliament directly, as seen in the ultimate decision in Jackson to uphold the Hunting Act. Nevertheless, Lord Steyn’s comments indicate a shift towards a more conditional understanding of sovereignty, potentially empowering courts to act as guardians of constitutional values in extreme scenarios—such as legislation abolishing democratic processes or fundamental rights.
Conclusion
In conclusion, Lord Steyn’s statement in R (Jackson) v Attorney General [2005] UKHL 5 at [102] offers a provocative critique of the traditional doctrine of parliamentary sovereignty, suggesting that it is no longer entirely fit for purpose in the modern UK. By highlighting its common law origins and judicial creation, he implies that the judiciary might, in exceptional circumstances, have the authority to qualify this principle. The relationship between parliamentary sovereignty and the rule of law is central to this discussion, with the latter potentially acting as a check on unfettered legislative power. While judicial intervention remains speculative and controversial, Lord Steyn’s remarks underscore the evolving nature of the UK constitution, where competing principles must be balanced. The implications of his view are significant, raising questions about the future role of the judiciary in protecting constitutional values against parliamentary overreach. As the UK continues to grapple with constitutional challenges, including post-Brexit arrangements and human rights protections, this tension between sovereignty and the rule of law will likely remain a critical area of debate.
References
- Allan, T.R.S. (2013) The Sovereignty of Law: Freedom, Constitution and Common Law. Oxford University Press.
- Barber, N.W. (2009) The Constitutional State. Oxford University Press.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Ekins, R. (2010) ‘Judicial Supremacy and the Rule of Law’. Law Quarterly Review, 126, pp. 127-152.
[Word Count: 1052, including references]
