Introduction
The doctrine of parliamentary supremacy, as classically articulated by A.V. Dicey in the late 19th century, holds that Parliament is the supreme legal authority in the United Kingdom, capable of making or unmaking any law without limitation. However, Lord Steyn’s observation in R (Jackson) v Attorney-General [2006] 1 AC 262 (HL) [102] suggests that while Dicey’s ‘pure and absolute’ conception may now appear out of place in the modern constitutional landscape, parliamentary supremacy remains the general principle of the UK constitution. This essay examines the evolution of parliamentary supremacy, exploring the challenges posed by contemporary constitutional developments such as devolution, European Union (EU) membership (prior to Brexit), and the role of the judiciary. It argues that although Dicey’s traditional view has been tempered by these factors, the core principle of parliamentary supremacy persists as a foundational element of the UK’s unwritten constitution. The discussion will proceed by first outlining Dicey’s classic doctrine, then assessing the modern influences that have reshaped its application, and finally evaluating the extent to which it remains a guiding principle.
Dicey’s Doctrine of Parliamentary Supremacy
A.V. Dicey, in his seminal work *An Introduction to the Study of the Law of the Constitution* (1885), defined parliamentary supremacy as the cornerstone of the UK constitutional framework. He posited three key principles: first, Parliament can make or repeal any law without legal restriction; second, no Parliament can bind its successors; and third, no court or other body can question the validity of an Act of Parliament (Dicey, 1885). This view established Parliament as the ultimate source of legal authority, unencumbered by judicial or other external constraints. Dicey’s formulation reflected the historical context of the 19th century, where the sovereignty of Parliament was seen as a safeguard against arbitrary monarchical power following the Glorious Revolution of 1688-89.
At its core, Dicey’s doctrine provided a clear and uncomplicated framework for understanding the distribution of power in the UK. For instance, the ability of Parliament to legislate on any matter, as demonstrated by historical statutes such as the Acts of Union 1707, reinforced the notion of absolute legislative authority. However, as the UK’s constitutional landscape evolved, particularly in the 20th and 21st centuries, the practical application of Dicey’s ‘pure and absolute’ supremacy began to face significant challenges, prompting scholars and judges alike to question its relevance in a modern context.
Modern Challenges to Dicey’s Conception
One of the most significant challenges to the traditional view of parliamentary supremacy has been the UK’s membership in the European Union from 1973 to 2020. The European Communities Act 1972 effectively incorporated EU law into the UK legal system, granting it primacy over domestic legislation in areas of EU competence. The landmark case of *Costa v ENEL* (1964) established that EU law takes precedence over conflicting national laws, a principle upheld in the UK through cases like *R v Secretary of State for Transport, ex parte Factortame Ltd (No 2)* [1991] 1 AC 603. In *Factortame*, the House of Lords disapplied an Act of Parliament—the Merchant Shipping Act 1988—because it conflicted with EU law, directly undermining Dicey’s assertion that no court could question parliamentary legislation. This development suggested that parliamentary supremacy was no longer absolute, at least during the UK’s EU membership.
Furthermore, devolution, introduced through statutes such as the Scotland Act 1998, has altered the practical operation of parliamentary supremacy. While Parliament retains the legal authority to repeal devolution statutes, the political reality is that it is highly unlikely to do so without significant justification, as demonstrated by the Sewel Convention, which stipulates that Westminster will not legislate on devolved matters without the consent of devolved legislatures. This convention, although not legally binding, indicates a shift towards a more collaborative constitutional framework, arguably diluting the unfettered authority Dicey envisaged.
Additionally, the growth of judicial power and the incorporation of the European Convention on Human Rights (ECHR) via the Human Rights Act 1998 have introduced new dynamics. While courts cannot strike down primary legislation, they can issue declarations of incompatibility, as seen in cases like A v Secretary of State for the Home Department [2005] UKHL 56. Such declarations place political pressure on Parliament to amend legislation, illustrating a subtle erosion of Dicey’s notion that parliamentary acts are immune to judicial challenge. These developments collectively suggest that the ‘pure and absolute’ supremacy Dicey described is indeed out of place in today’s more complex constitutional environment.
Parliamentary Supremacy as a General Principle
Despite these challenges, Lord Steyn’s statement in *R (Jackson) v Attorney-General* affirms that parliamentary supremacy remains the ‘general principle’ of the UK constitution. This case, which concerned the validity of the Hunting Act 2004 passed under the Parliament Acts procedure, saw the House of Lords reaffirm that Parliament’s legislative authority could not be curtailed by judicial intervention. Lord Steyn’s remarks underscore a critical point: while the application of supremacy may be constrained by political and practical realities, its legal foundation persists. Parliament retains the theoretical power to repeal the European Communities Act (as it did through the European Union (Withdrawal) Act 2018 post-Brexit), dissolve devolved institutions, or amend the Human Rights Act, demonstrating that ultimate sovereignty still resides with Westminster.
Moreover, post-Brexit, the reassertion of parliamentary control over law-making has arguably revitalised Dicey’s doctrine. The ability to ‘take back control’ of legislation, as emphasised during the 2016 referendum campaign, reflects the enduring notion that Parliament is the ultimate arbiter of UK law. Indeed, statutes such as the United Kingdom Internal Market Act 2020 illustrate Parliament’s willingness to assert its authority even in areas previously influenced by EU law or devolved powers, reinforcing the principle of supremacy.
Critical Evaluation
While parliamentary supremacy remains a core constitutional principle, its operation is no longer as straightforward as Dicey envisioned. The interplay between legal theory and political practice reveals a tension: Parliament may be supreme in law, but its exercise of power is moderated by conventions, international obligations (even post-Brexit through trade agreements), and judicial scrutiny. Some scholars, such as Barber (2005), argue that the concept of supremacy must evolve to reflect these realities, suggesting a move towards a more nuanced ‘constitutional pluralism.’ Conversely, others maintain that the ability of Parliament to override any constraint—however politically unfeasible—preserves Dicey’s core idea (Allan, 2013). This debate highlights the complexity of applying a 19th-century doctrine to a 21st-century context, yet it does not negate the fundamental role of parliamentary supremacy.
Conclusion
In conclusion, Lord Steyn’s observation in *R (Jackson)* captures the duality of parliamentary supremacy in the modern UK: while Dicey’s ‘pure and absolute’ formulation seems outdated amidst devolution, human rights laws, and past EU membership, the doctrine remains the bedrock of the constitution. Challenges to its application have introduced significant qualifications, yet Parliament’s ultimate legal authority endures, as evidenced by recent legislative actions post-Brexit. This enduring principle, though modified by contemporary realities, continues to shape the distribution of power in the UK. The implications of this balance suggest a need for ongoing discourse on how supremacy can coexist with modern constitutional norms, ensuring both legal coherence and democratic accountability in an evolving political landscape.
References
- Allan, T.R.S. (2013) The Sovereignty of Law: Freedom, Constitution and Common Law. Oxford University Press.
- Barber, N.W. (2005) ‘Sovereignty Re-examined: The Courts, Parliament, and Statutes’, Oxford Journal of Legal Studies, 25(1), pp. 131-154.
- Dicey, A.V. (1885) An Introduction to the Study of the Law of the Constitution. Macmillan.
- R (Jackson) v Attorney-General [2006] 1 AC 262 (HL).
- R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603.
- A v Secretary of State for the Home Department [2005] UKHL 56.
