Introduction
The UK constitution has long been defined by the principle of parliamentary sovereignty, a concept asserting that Parliament holds supreme legal authority to make, amend, or repeal any law without external limitation. However, as Lord Hope articulated in Attorney General v Jackson [2005] UKHL 56, parliamentary sovereignty is arguably no longer absolute, if it ever truly was. This essay explores the extent to which this statement reflects the contemporary UK constitution by examining the traditional doctrine of parliamentary sovereignty, the evolving influences of judicial review, European Union (EU) law (prior to Brexit), and devolution. Through this analysis, it becomes evident that while parliamentary sovereignty remains a cornerstone of the constitution, its absolute nature has been increasingly challenged by modern legal and political developments.
The Traditional Doctrine of Parliamentary Sovereignty
Historically, parliamentary sovereignty, as defined by A.V. Dicey, posits that Parliament can enact any legislation, and no court or body can override its authority (Dicey, 1885). This principle has underpinned landmark cases, such as Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, where parliamentary intervention reversed a judicial decision through retrospective legislation. Such examples highlight the traditional view of Parliament as the ultimate source of legal authority, reinforcing the notion that its powers are theoretically limitless. However, even in Dicey’s era, challenges to this absolute authority existed, such as the emerging role of international obligations and judicial interpretation, suggesting that sovereignty was never entirely unfettered.
Judicial Review and the Rule of Law
In contemporary times, judicial review has emerged as a significant constraint on parliamentary sovereignty. Courts have increasingly asserted their role in ensuring that parliamentary actions align with the rule of law, as seen in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, where the Supreme Court ruled that Parliament must authorise the triggering of Article 50 for Brexit. This decision illustrates how judicial oversight can limit parliamentary discretion, challenging the idea of absolute sovereignty. Furthermore, Lord Hope’s statement in Jackson [2005] reflects a judicial willingness to question parliamentary authority, particularly in relation to fundamental rights and constitutional principles. Although courts cannot strike down primary legislation, their interpretative powers and declarations of incompatibility under the Human Rights Act 1998 exert considerable pressure on Parliament to conform to legal norms.
The Impact of EU Law and Brexit
Prior to Brexit, EU law posed a direct challenge to parliamentary sovereignty. The European Communities Act 1972 granted EU law supremacy over domestic legislation, a principle affirmed in Factortame Ltd v Secretary of State for Transport (No. 2) [1991] 1 AC 603, where UK courts disapplied conflicting national laws. This demonstrated a clear limitation on Parliament’s ability to act unilaterally. Although Brexit, following the EU Withdrawal Act 2018, sought to restore full sovereignty, retained EU law and ongoing alignment debates indicate that residual influences persist. Indeed, the tension between national and supranational authority suggests that sovereignty remains far from absolute in practice.
Devolution and Political Constraints
Devolution further complicates the notion of absolute sovereignty. The establishment of devolved legislatures in Scotland, Wales, and Northern Ireland through acts such as the Scotland Act 1998 has distributed legislative powers, creating a quasi-federal structure. While Parliament retains the legal right to repeal devolution statutes, political realities and conventions, such as the Sewel Convention, limit its practical ability to do so without consent. For example, disputes over the Scottish Parliament’s legislative competence highlight ongoing tensions, suggesting that parliamentary sovereignty is constrained by political rather than merely legal factors.
Conclusion
In conclusion, Lord Hope’s assertion in Jackson [2005] that parliamentary sovereignty is no longer absolute holds substantial weight in the context of the contemporary UK constitution. While the traditional doctrine remains central, judicial review, the legacy of EU law, and devolution have introduced significant limitations. These developments indicate that sovereignty is increasingly contingent on legal, political, and international considerations. Therefore, although Parliament retains ultimate legal authority, its practical exercise is arguably moderated by a complex web of constitutional constraints, reflecting a nuanced balance rather than unbridled power. This evolving landscape suggests a need for ongoing scrutiny of how sovereignty adapts to modern governance challenges.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- House of Lords (2005) Attorney General v Jackson [2005] UKHL 56.
- Supreme Court (2017) R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
- House of Lords (1991) Factortame Ltd v Secretary of State for Transport (No. 2) [1991] 1 AC 603.
- House of Lords (1965) Burmah Oil Co Ltd v Lord Advocate [1965] AC 75.
