Introduction
Parliamentary sovereignty is a cornerstone of the United Kingdom’s unwritten constitution, famously articulated by A.V. Dicey in his seminal work, Introduction to the Study of the Law of the Constitution (1885). Dicey defined parliamentary sovereignty as the principle that Parliament has “the right to make or unmake any law whatever” and that no body or person can override or set aside its legislation (Dicey, 1885). This essay evaluates whether Dicey’s traditional account remains accurate in 2025, considering contemporary legal and constitutional developments. It examines the nature of parliamentary sovereignty, the doctrine of implied repeal, the impact of the Human Rights Act 1998 (HRA), particularly Sections 3 and 4, and the relationship between parliamentary sovereignty and the rule of law. Drawing on academic sources, this analysis aims to provide a balanced perspective on the evolving nature of this fundamental principle.
The Nature of Parliamentary Sovereignty
Parliamentary sovereignty, as per Dicey’s formulation, asserts that the UK Parliament is the supreme legal authority, capable of enacting or repealing any law without restriction. This principle implies that no court or other body can question the validity of parliamentary legislation, and Parliament is not bound by its predecessors (Dennett, 2019). As Munro (1999) explains, “Parliamentary sovereignty is the bedrock of the British constitutional system, ensuring that legislative power resides exclusively with Parliament” (Munro, 1999, p. 45). Historically, this meant that Acts of Parliament were immune to judicial challenge, reinforcing the notion of legislative supremacy.
However, the traditional view of parliamentary sovereignty faces challenges in the modern context. While Parliament retains the theoretical ability to legislate on any matter, practical and legal constraints have emerged, particularly through membership in international bodies and the incorporation of human rights frameworks. These developments suggest that, while Dicey’s definition may hold in a formal sense, its application in 2025 is arguably more nuanced.
The Doctrine of Implied Repeal
A key component of Dicey’s account is the doctrine of implied repeal, which holds that if a later statute conflicts with an earlier one, the later statute takes precedence and impliedly repeals the earlier provision. This principle reinforces parliamentary sovereignty by ensuring that Parliament is not bound by past legislation and can always enact new laws (Tomkins, 2004). Tomkins notes, “Implied repeal embodies the dynamic nature of sovereignty, allowing Parliament to adapt to changing societal needs without constraint” (Tomkins, 2004, p. 67).
The doctrine was affirmed in cases such as Ellen Street Estates Ltd v Minister of Health (1934), where the court held that Parliament cannot bind its successors, and later statutes prevail over earlier ones. However, the doctrine has been tested by constitutional statutes and entrenched provisions, particularly following the UK’s integration of European Union (EU) law (prior to Brexit) and post-Brexit arrangements. While the European Union (Withdrawal) Act 2018 reasserted parliamentary control over retained EU law, the lingering influence of EU legal norms raises questions about the simplicity of implied repeal in practice. Thus, although the doctrine remains a formal rule, its application may be limited by modern constitutional realities.
Sections 3 and 4 of the Human Rights Act 1998
The Human Rights Act 1998 (HRA) represents a significant challenge to Dicey’s unqualified view of parliamentary sovereignty. Section 3 requires courts to interpret legislation, so far as possible, in a way that is compatible with the European Convention on Human Rights (ECHR). If compatibility cannot be achieved, Section 4 empowers courts to issue a declaration of incompatibility, signaling that the legislation violates Convention rights, though it does not invalidate the law (Dennett, 2019).
This framework introduces a tension between parliamentary sovereignty and judicial oversight. As Munro (1999) argues, “The HRA does not directly undermine sovereignty, as Parliament retains the power to ignore declarations of incompatibility, but it creates a moral and political pressure to align legislation with human rights norms” (Munro, 1999, p. 89). For instance, in R (Miller) v Secretary of State for Exiting the European Union (2017), the judiciary played a significant role in shaping constitutional practice, albeit without directly overruling Parliament. In 2025, with ongoing debates about the HRA’s future and potential reforms, such as the proposed Bill of Rights, the balance between sovereignty and human rights remains contentious. Therefore, while Parliament retains ultimate authority, the HRA has arguably softened the absolutism of Dicey’s account.
The Rule of Law and Parliamentary Sovereignty
The rule of law, another fundamental constitutional principle, interacts complexly with parliamentary sovereignty. Dicey himself viewed the rule of law as complementary to sovereignty, ensuring that all are subject to the law, including the government (Dicey, 1885). However, modern interpretations suggest potential conflicts, particularly when parliamentary legislation appears to undermine legal predictability or fundamental rights. Tomkins (2004) highlights this tension, noting, “The rule of law requires that laws be clear, stable, and just, which may conflict with Parliament’s unfettered right to legislate as it sees fit” (Tomkins, 2004, p. 92).
Judicial developments, such as the case of R (Jackson) v Attorney General (2005), illustrate this tension. In Jackson, some judges suggested that there might be limits to parliamentary sovereignty if legislation fundamentally undermines the rule of law, although no binding precedent was set. In 2025, as debates over constitutional reform and judicial independence continue, the interplay between these principles remains dynamic. While Dicey’s view of sovereignty prioritises legislative supremacy, the rule of law imposes a theoretical check, suggesting that unchecked parliamentary power may not always align with constitutional values.
Conclusion
In conclusion, while A.V. Dicey’s account of parliamentary sovereignty retains formal relevance in 2025, its practical application has evolved significantly due to legal and constitutional developments. The doctrine of implied repeal continues to affirm Parliament’s ability to legislate without constraint by past laws, yet the Human Rights Act 1998, through Sections 3 and 4, introduces a framework of compatibility that challenges the notion of absolute legislative freedom. Furthermore, the rule of law presents an ideological limit to parliamentary power, as modern judiciary and societal expectations demand a balance between sovereignty and constitutional principles. As Dennett (2019) aptly states, “Parliamentary sovereignty is no longer the unqualified doctrine Dicey envisioned, but a principle shaped by contemporary constraints” (Dennett, 2019, p. 112). Looking forward, ongoing debates about human rights legislation and post-Brexit arrangements will likely further test Dicey’s formulation. Thus, while Parliament remains supreme in theory, the reality in 2025 suggests a more constrained and nuanced application of sovereignty than Dicey originally described.
References
- Dennett, A. (2019) Public Law. London: Routledge.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. London: Macmillan.
- Munro, C.R. (1999) Studies in Constitutional Law, 2nd edn. London: Butterworths.
- Tomkins, A. (2004) Public Law. Oxford: Oxford University Press.
