Introduction
The United Kingdom’s unwritten constitution has long been underpinned by the doctrine of parliamentary sovereignty, often described as the cornerstone of its legal framework. This principle, articulated by A.V. Dicey in the 19th century, asserts that Parliament holds supreme legislative authority, able to make or repeal any law without legal limitation. However, as Lord Hope observed in Attorney General v Jackson [2005] UKHL 56, parliamentary sovereignty is no longer, if it ever was, absolute. This essay examines the extent to which this statement reflects the contemporary UK constitution. It first contrasts Dicey’s classical view with modern constitutional realities, then explores legal constraints on parliamentary sovereignty, and finally considers political and practical limitations. Through this analysis, it becomes evident that while parliamentary sovereignty remains dominant, its absoluteness is increasingly contested.
Dicey’s Doctrine versus Modern Realities
A.V. Dicey’s seminal work, *Introduction to the Study of the Law of the Constitution* (1885), defines parliamentary sovereignty as the ability of Parliament to legislate on any matter, with no court or other body able to overrule its enactments (Dicey, 1885). This view positioned Parliament as the ultimate legal authority, unbound by predecessor legislation or external constraints. However, the contemporary UK constitution reveals a more nuanced reality. While Parliament retains significant power, its sovereignty faces challenges from evolving legal norms and international obligations. For instance, the UK’s historical membership in the European Union (EU) necessitated compliance with EU law, which, under the European Communities Act 1972, took precedence over domestic legislation. Although Brexit has altered this dynamic, it highlights that parliamentary sovereignty has, at times, been conditional rather than absolute, challenging Dicey’s traditional assertions.
Legal Constraints on Parliamentary Sovereignty
Significant legal constraints further undermine the notion of absolute parliamentary sovereignty. The incorporation of the European Convention on Human Rights (ECHR) via the Human Rights Act 1998 allows courts to issue declarations of incompatibility if domestic laws conflict with Convention rights. While Parliament retains the power to ignore such declarations, their issuance exerts considerable moral and political pressure, as seen in cases like *A v Secretary of State for the Home Department* [2004] UKHL 56. Moreover, judicial review has grown in prominence, with courts scrutinising the legality of governmental actions, sometimes implying limits to parliamentary intent. Lord Hope’s remarks in *Jackson* (2005) reflect this shift, suggesting that the rule of law, upheld by the judiciary, may impose implicit boundaries on Parliament’s authority. These developments indicate that legal mechanisms, though not binding in a strict sense, increasingly temper parliamentary supremacy.
Political and Constitutional Realities
Beyond legal constraints, political and constitutional realities further erode the absoluteness of parliamentary sovereignty. Devolution, for instance, grants legislative powers to Scotland, Wales, and Northern Ireland under frameworks such as the Scotland Act 1998. While Parliament theoretically retains the ability to repeal these arrangements, political conventions and the practical need for consent render such actions highly improbable. Additionally, referendums, like the 2016 EU referendum, demonstrate that popular sovereignty can influence parliamentary decisions, creating a tension between direct democracy and representative authority. Furthermore, international obligations, even post-Brexit, bind the UK to norms and treaties that Parliament must often respect. These factors suggest that, in practice, parliamentary sovereignty operates within a web of political constraints and shared authority, far from the unfettered dominance Dicey envisioned.
Conclusion
In conclusion, Lord Hope’s assertion in *Jackson* (2005) that parliamentary sovereignty is no longer absolute accurately reflects the contemporary UK constitution. While Dicey’s doctrine remains a foundational principle, modern legal constraints, such as the Human Rights Act and judicial review, alongside political realities like devolution and referendums, impose significant limitations. Parliament retains the theoretical supremacy to override these constraints, yet in practice, its authority is moderated by a complex interplay of law, politics, and convention. This suggests a constitution in transition, where sovereignty, though dominant, must adapt to an evolving landscape of shared power and accountability. The implications are profound, raising questions about the balance between parliamentary authority and the rule of law in shaping the UK’s constitutional future.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- House of Lords (2004) A v Secretary of State for the Home Department [2004] UKHL 56.
- House of Lords (2005) Attorney General v Jackson [2005] UKHL 56.
(Word count: 614)
