Introduction
Parliamentary sovereignty, as articulated by A.V. Dicey in his seminal work, *Introduction to the Study of the Law of the Constitution* (1885), remains a cornerstone of the UK’s unwritten constitution. Dicey’s definition asserts that Parliament holds the ultimate authority to “make or unmake any law whatever” and that no other body or person can override its legislation. This essay examines the extent to which Dicey’s conception of parliamentary sovereignty remains an accurate depiction of Parliament’s powers, focusing exclusively on domestic limits within the UK constitutional framework. While Dicey’s principle suggests absolute legislative authority, this essay will explore how various domestic developments—such as devolution, the role of the judiciary, and constitutional conventions—challenge or qualify this notion. Through a critical analysis of these factors, the essay aims to provide a nuanced understanding of the contemporary relevance of Dicey’s definition.
The Theoretical Foundation of Dicey’s Parliamentary Sovereignty
Dicey’s definition of parliamentary sovereignty encapsulates three core ideas: Parliament’s ability to enact or repeal any law, the absence of any legal limit to its legislative power, and the inability of any external body to set aside parliamentary legislation (Dicey, 1885). Historically, this principle reflects the outcome of constitutional struggles, such as the Glorious Revolution of 1688-89, which established Parliament’s supremacy over the monarchy. In theory, this grants Parliament unbridled authority, positioning it as the ultimate source of legal power within the UK’s constitutional order. Indeed, landmark cases like *Mortensen v Peters* (1906) have affirmed that courts must uphold parliamentary legislation, regardless of perceived injustices or moral concerns, highlighting the judiciary’s subordination to Parliament.
However, while Dicey’s framework suggests an absolute form of sovereignty, it is essential to consider whether this remains entirely accurate in practice. The UK constitution, being unwritten and evolutionary, has developed mechanisms and conventions that arguably impose constraints on parliamentary power. The following sections will evaluate key domestic factors—devolution and judicial developments—that test the limits of Dicey’s definition.
Devolution as a Domestic Limit to Parliamentary Sovereignty
One of the most significant domestic challenges to Dicey’s principle arises from the devolution of powers to Scotland, Wales, and Northern Ireland since the late 1990s. The Scotland Act 1998, the Government of Wales Act 1998 (and its subsequent amendments), and the Northern Ireland Act 1998 transferred substantial legislative and executive powers to devolved administrations. For instance, the Scottish Parliament can legislate on matters such as education, health, and transport, raising questions about whether Westminster retains absolute sovereignty over all aspects of UK law.
Although devolution statutes preserve Parliament’s legal right to repeal or amend devolved powers—thereby aligning with Dicey’s assertion of ultimate authority—the political reality suggests otherwise. The Sewel Convention, a constitutional convention, stipulates that Westminster will not legislate on devolved matters without the consent of the devolved legislatures. While conventions are not legally binding, their breach can provoke significant political consequences, as seen during controversies over Brexit legislation. Therefore, while Parliament retains theoretical sovereignty, devolution introduces a practical limit by necessitating cooperation with devolved bodies. This tension indicates that Dicey’s view of unfettered power is, at the very least, complicated by modern constitutional arrangements (Bogdanor, 2009).
The Role of the Judiciary and the Rule of Law
Another domestic constraint on parliamentary sovereignty stems from the evolving role of the judiciary, particularly in relation to the rule of law. Dicey himself acknowledged the rule of law as a complementary principle, yet tensions arise when judicial interpretations appear to challenge parliamentary will. For instance, in cases such as *R (Jackson) v Attorney General* (2005), the House of Lords questioned whether there are fundamental constitutional principles—such as the rule of law—that Parliament cannot override without judicial scrutiny. In this case, several judges suggested obiter dicta that Parliament might not have the power to abolish judicial review or fundamental rights, implying potential limits to legislative supremacy.
While such judicial remarks are not binding, they reflect a growing willingness among courts to assert the importance of constitutional principles over absolute parliamentary power. This development arguably diverges from Dicey’s view, as it suggests that certain laws could, in theory, be deemed incompatible with foundational norms. However, it must be noted that the judiciary has not yet directly overridden parliamentary legislation, maintaining the formal hierarchy Dicey described. Nevertheless, the increasing judicial emphasis on the rule of law highlights a subtle but significant shift in constitutional dynamics (Allan, 2013).
Constitutional Conventions and Political Restraints
Beyond legal and institutional limits, constitutional conventions and political realities further qualify Dicey’s notion of absolute sovereignty. Conventions, though not enforceable by courts, play a crucial role in shaping parliamentary behaviour. For example, the convention that the House of Lords generally does not block legislation based on manifesto commitments of the elected government imposes a practical restriction on Parliament’s upper chamber. Similarly, the convention regarding royal assent—while rarely exercised as a veto—reinforces the expectation of procedural compliance.
Moreover, political accountability to the electorate often deters Parliament from enacting laws perceived as unjust or contrary to democratic values. While Dicey’s theory focuses on legal authority rather than political constraints, the practical exercise of sovereignty cannot be divorced from such considerations. As Bradley and Ewing (2011) argue, parliamentary sovereignty in practice is moderated by a web of conventions and democratic expectations, which may not align with the stark absolutism of Dicey’s definition. This interplay between legal theory and political reality suggests that while Parliament retains supreme legal authority, its exercise is subject to significant domestic influences.
Conclusion
In conclusion, while A.V. Dicey’s definition of parliamentary sovereignty as the ultimate authority to “make or unmake any law whatever” remains a fundamental principle of the UK constitution, its accuracy as a description of Parliament’s powers is qualified by domestic limits. Devolution has introduced a complex framework of shared legislative authority, often constrained by political conventions like the Sewel Convention. Similarly, judicial developments, particularly regarding the rule of law, hint at potential boundaries to parliamentary power, even if these remain theoretical. Furthermore, constitutional conventions and political realities impose practical curbs on the exercise of sovereignty, challenging the notion of unfettered authority. Consequently, although Dicey’s principle retains legal validity, its application in the contemporary UK constitutional order is nuanced and subject to evolving limits. This suggests a need for ongoing scrutiny of how sovereignty operates within a changing domestic landscape, balancing theoretical supremacy with practical constraints.
References
- Allan, T.R.S. (2013) Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford University Press.
- Bogdanor, V. (2009) The New British Constitution. Hart Publishing.
- Bradley, A.W. and Ewing, K.D. (2011) Constitutional and Administrative Law. 15th edn. Pearson Education.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
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