Introduction
This essay examines the classic doctrine of the supremacy of Parliament as articulated by A.V. Dicey, particularly in light of Lord Steyn’s observation in R (Jackson) v Attorney-General [2006] 1 AC 262 (HL) that, while Dicey’s account of parliamentary supremacy as “pure and absolute” may seem outdated, it remains the general constitutional principle in the United Kingdom. The purpose of this analysis is to explore Dicey’s traditional view, assess its relevance in the contemporary constitutional landscape, and evaluate the enduring nature of parliamentary supremacy amidst modern challenges. The essay will first outline Dicey’s doctrine, then discuss the factors that render it out of place, and finally argue that, despite these challenges, parliamentary supremacy retains a central role in the UK constitution.
Dicey’s Doctrine of Parliamentary Supremacy
A.V. Dicey, a prominent constitutional scholar, defined parliamentary supremacy in his seminal work as the cornerstone of the UK constitution. According to Dicey (1885), Parliament possesses the authority to make or unmake any law, and no person or body can override or set aside its legislation. This view established Parliament as the ultimate legal authority, with no constitutional limits to its legislative power. Dicey’s perspective was rooted in the historical context of the 19th century, reflecting a time when the UK’s unwritten constitution relied heavily on political conventions rather than judicial constraints. Indeed, this “pure and absolute” supremacy, as Lord Steyn later described it, underpinned the traditional understanding of the UK’s constitutional framework, ensuring that Parliament could adapt the law to societal needs without restriction (Dicey, 1885). However, while this doctrine provided clarity and flexibility, it arguably overlooked potential conflicts with emerging legal and political principles.
Challenges to Dicey’s Classic Account in the Modern UK
In the modern United Kingdom, Dicey’s account of parliamentary supremacy appears increasingly out of place due to significant constitutional developments. Firstly, the UK’s membership in the European Union (EU) from 1973 to 2020 introduced a competing legal authority through the principle of the supremacy of EU law, as established in cases like Costa v ENEL (1964). This development, reinforced by the European Communities Act 1972, meant that EU law could override conflicting UK legislation, challenging the notion of absolute parliamentary power (Wade, 1996). Furthermore, even after Brexit, the incorporation of EU-derived law into domestic legislation via the European Union (Withdrawal) Act 2018 complicates the traditional view of supremacy. Secondly, the Human Rights Act 1998 empowers courts to issue declarations of incompatibility when legislation violates rights under the European Convention on Human Rights, indirectly pressuring Parliament to amend laws, though it stops short of judicial strike-down (Loveland, 2018). These factors illustrate how Dicey’s unbridled vision of supremacy is at odds with the contemporary constitutional reality, where external and internal legal frameworks impose de facto limitations.
The Enduring Principle of Parliamentary Supremacy
Despite these challenges, Lord Steyn’s assertion in R (Jackson) v Attorney-General [2006] holds that parliamentary supremacy remains the “general principle” of the UK constitution. Importantly, the judiciary has consistently affirmed that Parliament can repeal or amend any law, including those imposing constraints, as seen in debates over the Human Rights Act or Brexit legislation. For instance, in the Jackson case itself, the House of Lords acknowledged Parliament’s ultimate authority to enact controversial legislation, even when questioned on procedural grounds. Moreover, while EU membership once posed a significant challenge, Brexit arguably reaffirms parliamentary control by restoring legislative autonomy (albeit with retained EU law nuances). Therefore, although practical and political constraints exist—such as devolution to Scotland, Wales, and Northern Ireland—Parliament retains the legal capacity to override them, preserving Dicey’s core principle in theory, if not always in practice (Bogdanor, 2009).
Conclusion
In conclusion, Dicey’s classic account of parliamentary supremacy as “pure and absolute” is indeed out of place in the modern United Kingdom, given the influence of EU law (historically), the Human Rights Act, and devolution. These developments highlight practical limitations on Parliament’s unbridled power, suggesting a shift towards a more nuanced constitutional framework. Nevertheless, as Lord Steyn observed in R (Jackson) v Attorney-General [2006], parliamentary supremacy persists as the general principle of the UK constitution, with Parliament retaining ultimate legal authority to enact, amend, or repeal laws. The implications of this duality are significant: while Dicey’s doctrine provides a foundational understanding, its application must be contextualised within a landscape of evolving legal and political constraints. This balance between traditional theory and modern reality remains a critical area for constitutional discourse.
References
- Bogdanor, V. (2009) The New British Constitution. Hart Publishing.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. Oxford University Press.
- Wade, H.W.R. (1996) Sovereignty – Revolution or Evolution? Law Quarterly Review, 112, 568-575.
