UK CONSTITUTIONAL LAW 2022-2023:

PART II: CONSTITUTIONAL FUNDAMENTALS

LECTURE 8: PARLIAMENTARY SOVEREIGNTY (I): WHAT IS LEGAL SOVEREIGNTY?

Roger Masterman
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Essential Reading:
Masterman and Murray, Ch.6 (NB: this chapter relates to the topic of sovereignty as
a whole); Turpin and Tomkins, ch.2.2-2.2.5 (pp.62-109).

Recommended Reading:
M. Elliott, ‘Parliamentary Sovereignty in a Changing Constitutional Landscape’ in J.
Jowell and C. O’Cinneide (eds), The Changing Constitution (9th edn) (Oxford: Oxford
University Press, 2019)
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1: THE IDEA OF LEGAL SOVEREIGNTY

Key Issues:

The commentator A.V. Dicey is arguably most renowned for his influential work on
parliamentary sovereignty; the legally unlimited power of Parliament. There are
two dimensions to the classic Diceyan reading of parliamentary sovereignty:

(1) The positive aspect holds that Parliament possesses unlimited law-making
power.

(2) The negative aspect holds that no other body has the authority to challenge
the validity of an Act of Parliament.

Two important points flow from this understanding of Parliament’s legislative

power that allow the United Kingdom constitution to be distinguished from a
number of other constitutional systems. The first is that there is no distinction
between constitutional and ordinary laws; all Acts of Parliament are of the same
legal value. The constitution is the cumulative result of legislative (and judicial)
decisions rather than a precursor to legislative and judicial action. The second is
that entrenchment is a legal impossibility; Parliament cannot bind its successors.

The legal sovereignty of Parliament is arguably the closest thing to a foundational

principle that can be found in the United Kingdom’s constitution – Dicey’s account
remains one of the most influential and the natural start point for a contemporary
assessment of the doctrine.

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(a) A summary of the traditional doctrine as expounded by Dicey:

‘The sovereignty of Parliament is (from a legal point of view) the dominant

characteristic of our political institutions.’ (A. V. Dicey, Introduction to the Study of the
Law of the Constitution).

Two elements of the Diceyan understanding of sovereignty:

 Parliament has the right to make or unmake any law whatever (‘the positive
aspect’); and
 no person or body outside Parliament is recognised by the law as having a
right to override or set aside any legislation of Parliament at all (‘the negative
aspect’).

The sovereignty doctrine therefore vests unlimited legal power in Parliament:

“… Parliament may remodel the British constitution, prolong its own life,
legislate ex post facto, legalise illegalities, provide for individual cases,
interfere with contracts and authorise the seizure of property, give dictatorial
powers to the Government, dissolve the United Kingdom or the British
Commonwealth, introduce communism or socialism or individualism or
facism, entirely without legal remedy.” (Ivor Jennings, The Law and the
Constitution (4th ed, 1952) (emphasis added))

(b) The limits of the doctrine: it goes to the lack of legal restraints on Parliament
only:

“It is often said that it would be unconstitutional for… Parliament to do certain things,
meaning that the moral, political or other reasons against doing them are so strong
that most people would regard it as highly improper if Parliament did these things.
But that does not mean that it is beyond the power of Parliament to do these things.
If Parliament chose to do any of them, the courts could not hold the Act of
Parliament invalid.” (Madzimbamuto v Lardner-Burke [1969] 1 AC 526)

(c) How the courts accept parliamentary sovereignty in practice: the doctrines of
express and implied repeal

Ellen Street Estates v Minister of Health [1934] 1 KB 590: “Parliament can alter an Act
previously passed … it can do so by repealing in terms the previous Act … and it can
do it also in another way – namely, by enacting a provision which is clearly
inconsistent with the previous Act.” (per Scrutton J).

Express Repeal – Parliament explicitly states in a statute that an earlier statute is to

be invalidated. For instance, an Act may contain a provision which states “This Act
hereby repeals sections 00-00 of the Tediously Pointless Act 2009”.

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 Implied Repeal – where two statutory provisions are inconsistent with each other,
the provision passed later in time while prevail. The courts will take the later
provision to have “impliedly repealed” the earlier.

2: POLITICAL POWER DISTINGUISHED:

Key Issues:

The doctrine of parliamentary sovereignty relates to the legal powers of Parliament.

However, the links between the legal doctrine and the political dimensions of
Parliament’s power are undeniable. Historically, the legal supremacy of Parliament was
the result of lengthy political battles between the Crown and the legislature and to this
day, the ability to enact legislation is a power vested collectively in those political actors
who are Members of Parliament. As a result of this latter point, it might be said that the
political process conditions how the legislative powers of Parliament are to be deployed;
does it follow that the political process might be regarded as a limitation on Parliament’s
sovereignty?

Dicey himself did recognise the political limitations to Parliament’s unfettered legal
power: ‘[there are] many enactments … which Parliament never would and (to speak
plainly) never could pass.’ (A. V. Dicey, Introduction to the Study of the Law of the
Constitution).

Jennings suggested that the acknowledgement of such a political limitation on

Parliament’s power provided evidence of the inadequacy of the idea of ‘sovereignty’:

“If [we are to acknowledge a source of political authority that may restrict
Parliament’s legislative latitude] legal sovereignty is not sovereignty at all. It
is not supreme power. It is a legal concept, a form of expression which
lawyers use to express the relations between Parliament and the courts. It
means that the courts will recognise as law the rules which Parliament makes
by legislation …”

As a result, Jennings referred to the ‘legislative supremacy’ of Parliament (to

encapsulate the notion that primary legislation was the highest form of law
recognised by the constitution, without having to defend the suggestion that
Parliament’s power was – as a matter of law – without limits.

3: THE TRADITIONAL DOCTRINE SCRUTINISED

(a) Three meanings of the positive aspect (Parliament can “make or unmake any
law”):

 There is no law that Parliament cannot change (there is, therefore, no concept
of entrenchment in UK constitutional law):

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  There is therefore no distinction between “constitutional” and other laws on
the traditional account (the constitution is therefore synonymous with, and a
result of, the ordinary law of the land);

 An enactment of Parliament cannot be pronounced void on the grounds that it

conflicts with any principles of the constitution.

The evidence:

 Constitutional practice; Parliament’s legislative history and the responses of

the courts.

“The bedrock of the British constitution is … the supremacy of the Crown in

Parliament.” (Lord Bingham, Jackson v Attorney General [2006], at [9]).

 But is this conclusive?

“One no more demonstrates [that the powers of the UK Parliament are

unlimited] by pointing to a wide range of legislative objects than one
demonstrates the contrary by pointing to matters on which Parliament has
not, in fact, ever legislated.” (Calvert).

“De Lolme’s remark that Parliament can do anything except make a man into
a woman and a woman into a man is often quoted. But, like many of the
remarks which de Lolme made, it is wrong … Though it is true that Parliament
cannot change the course of nature, it is equally true that it cannot in fact do
all sorts of things. The supremacy of Parliament is a legal fiction, and legal
fiction can assume anything.” (Ivor Jennings, The Law and the Constitution).

(b) The Negative aspect:

 The courts have no general power to challenge the validity of an Act of

Parliament.

The evidence:

 The Courts have – since the civil war – denied that a general power to
invalidate primary legislation exists. For instance: “… it is not for the court to
say that a parliamentary enactment, the highest law in this country, is illegal”
(Cheney v Conn [1968] 1 All ER 779, 782).

 Nor does the executive have the capacity to amend the law: “The idea that ...
the Executive has power to prescribe or alter the law to be administered by
the Courts of law in this country is out of harmony with the principles of our
Constitution” (The Zamora [1916] 2 AC 77, 90).

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 And see also:

“The academics debate whether it is conceivable that Parliament would

enact a law which was so contrary to principle that the courts would ignore it
– eg a law which prevents citizens from challenging any decision of a
government department in the courts. That is a point which has even been
touched on in judgments in one case in the House of Lords in 2005. I
profoundly hope that it is an issue which never has to be tested, not least
because, if it does, something will already have gone very wrong with our
system of government. Subject to that sort of remote (I hope) possibility, the
UK is a country where Parliament has ultimate power with no restraining
influence, no check or balance, other than the inherent sense of propriety
and moderation, and respect for individual freedoms and minority rights,
which have generally permeated our public life for the past centuries” (Lord
Neuberger, “The UK Constitutional Settlement and the Role of the UK
Supreme Court” (October 2014)).

 But is this conclusive?

“… in many cases, the common law will controul Acts of Parliament, and
sometimes adjudge them to be utterly void: for when an Act of Parliament is
against common right or reason, or repugnant, or impossible to be
performed, the common law will controul it, and adjudge such Act to be
void.” (Dr Bonham’s Case (1609), Coke CJ).

“'I do not exclude the possibility that in the very unlikely event that a
parliamentary majority abusively sought to entrench its power by a
curtailment of the franchise or similar device, the common law, informed by
principles of democracy and the rule of law and international norms, would
be able to declare such legislation unlawful” (Moohan v Lord Advocate [2015]
AC 901, [35].