In the United Kingdom, drawing upon Dicey’s classic interpretation, the British constitution

rests upon two pillars, the Parliamentary sovereignty and the Rule of Law. Parliament in this
definition includes the three essential pillars namely the House of Commons, the House of
Lords, and the Crown.According to A.V. Dicey there are two types of sovereignty- Legal and
Political. Legal sovereignty comes from the sovereignty of the legislature while political
sovereignty lies with the people. There are two situations in which the legal sovereignty may be
lost- one where the Parliament decides to abolish its sovereignty and places its residual power
under a written constitution; and second where the judiciary undergoes a revolution stating
that it no longer owes its allegiance to the Parliament.
In today’s world the traditional theory of sovereignty to some extent is losing importance. This
essay aims at focusing on the challenges to the orthodox view given by A.V. Dicey, and to infer
about its contemporary relevance in the UK.
It is important to look at the historical context of the doctrine which to Dicey is ‘the very
keystone of the constitution’. Parliamentary sovereignty was established as a result of political
events in the 17" century - the so-called ‘glorious revolution’ and the subsequent constitutional
settlement between the Crown and Parliament. In the Bill of Rights 1689 the foundation was
laid to ensure Parliament’s supremacy against the crown and to restrict the exercise of
monarchical prerogative power. In BBC v. Johns, the court held that no new prerogative can be
claimed by the Crown.
There is no source of the doctrine. Parliamentary sovereignty is simply a common-law rule.
Ultimately, the continuance of the doctrine depends on the judges respect and loyalty to it.
According to Barnett, ‘The key to understanding parliamentary sovereignty lies in its
acceptance —but not necessarily moral approval — by the judges within the legal system.
Sovereignty is therefore a fundamental rule of the common law, for it is the judges who uphold
Parliament's sovereignty. For as long as the judges accept the sovereignty of Parliament,
sovereignty will remain the ultimate rule of the constitution.’ In the seminal case of Jackson,
Lord Steyn described Parliamentary Sovereignty as a judge-made principle and ‘a construct of
the common law’. Thus it is the judges who uphold and reinforce the sovereignty of parliament.
It is also pertinent to mention that supremacy relates to the legislative enactments of
Parliament. As Loveland explains, ‘A statute, that is a piece of legislation produced by
Parliament, is regarded as the highest form of law within the British constitutional structure’.
And in the words of Tomkins, ‘as a matter of English law, there is no source of law higher than a
statute’.
The classical definition of Parliamentary Sovereignty has been given by A.V. Dicey in three
parts- Parliament can legislate on any subject matter; it is not bound by its predecessor nor can
bind its successor; and no one including the courts can challenge the validity of an Act of
Parliament.
In relation to first limb i.e. - Parliament can legislate on any subject matter. It can make laws
retrospectively thereby making an action unlawful which at that time was lawful. An example
would be the War Damages Act 1965 which nullified the decision of the House of Lords in
Burmah Oil Company v Lord Advocate. Also Parliament's powers are (in legal terms) unlimited
in terms of territorial jurisdiction (Acts of Parliament that extend beyond the territory of the
United Kingdom). In Mortensen v Peters the House of Lords ruled against the defendant
declaring that there are no limits to Parliament's powers if passed in the correct manne.
Another example would be the Aviation Security Act allows the courts to try hijacking cases
irrespective of the territory and nationality of the hijacker. This principle, that Parliament's
supremacy is unlimited geographically, can also be illustrated by Jennings’ now well-known
example, namely that ‘Parliamentary supremacy means that Parliament can legislate for all
persons and all places. If it enacts that smoking in the streets of Paris is an offence, then it is an
offence. ‘This example is useful as it reminds us that the legal theory of Parliamentary
sovereignty does not always reflect political reality. It is also true that “Parliamentary
sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental
principles of human rights” as per Lord Hoffman in R v Secretary of State for the Home
Department ex parte Simms.
Whilst these are examples of Parliament's ability to make any law. It is equally empowered to
unmake any law through the repeal of any previous Act of Parliament or by legislating to
reverse or abolish any rule of common law, or any convention. The consequence of this is that
fundamental constitutional change or reform can be brought about by the Westminster
Parliament through passing (or indeed repealing) a primary legislation through a simple act of
parliament. In essence in the UK legal entrenchment of constitutional law is regarded as
impossible. However we need to appreciate the fact that there is a significant difference
between what Parliament can do legally and what it can actually do in practice. For instance the
Statute of Westminster 1931 released the Parliaments of the "Dominions" from being subject
to British laws by giving them their own sovereignty. It also provided in section 4 that no Act of
the Westminster Parliament shall extend to the Dominion unless the Dominion so requests. In
legal theory the Westminster Parliament could repeal or impliedly repeal section 4 of this
statute but such a course of action would be impossible due to both practical and political
constraints. These political constraints were recognized by Lord Sankey in British Coal
Corporation v The King where he explained that ‘the Imperial Parliament could, as a matter of
abstract law, repeal or disregard Section 4 of the Statute of Westminster. But that is theory and
has no relation to reality’. Similarly in [1971] Lord Denning said ‘in legal theory, one Parliament
cannot bind another and no Act is irreversible. But legal theory does not always march
alongside political reality. Freedom once given cannot be taken away. Legal theory must give
way to practical politics’.
Furthermore in the relationship between the courts and Parliament it was apparently thought
that the courts could set aside Parliament’s enactments. For example, in Dr Bonham's Case
(1610) Chief Justice Coke opined that the courts could intervene if Parliament enacted
outrageous legislation. However, since the latter part of the 17 century the traditional view
(which Dicey sets out) has prevailed. Essentially, once the courts have determined that that a
Bill has become an Act of Parliament, they have no jurisdiction to override it or set it aside. This
is described as the ‘enrolled bill’ rule which makes clear that the courts do not ‘look behind’
Acts of Parliament but rather will simply apply and interpret any legislation which has passed
both Houses and received Royal assent. This is also known as declaratory theory propounded
by William Blackstone. An example of this approach is given by lord Simonds in the case of
Midland Silicone v Scruttons where he said: “ Our first duty which is to administer justice
according to law, the law which is established for us by an Act of Parliament''
It is often said that the one thing Parliament cannot do is bind future Parliaments. In order to
preserve the sovereignty of Parliament, its freedom to legislate must not be limited or
encumbered by anything previous Parliaments have done. The Britain 100 years ago would
have a different approach towards law than they have today, if one parliament started binding
another, the change would not take place and the laws would lose their legitimate support.
Sometimes, although there has been no express repeal, the provisions of an Act conflict with
the provisions of an earlier one - raising the question of which one takes precedence. The
courts have decided that the provisions of the later Act prevail. This is known as the doctrine of
implied repeal. In Vauxhall Estates Ltd v Liverpool Corporation there was a conflict between a
provision in a 1919 Act of Parliament and a 1925 Act. The court ruled that the later Act applied,
and thereby impliedly repealed the conflicting earlier statutory provision. A similar approach
was taken in Ellen Street Estates v Minister of Health. A challenge to orthodox idea of implied
repeal came with obiter dicta of Lord Justice Laws in Thoburn v Sunderland City Council. In this
case a distinction was drawn between ‘ordinary’ and so-called ‘constitutional statutes’. The
‘ordinary’ statutes remain subject to the doctrine of implied repeal but common law recognises
a category of ‘constitutional’ statutes which are not subject to implied repeal but can only be
expressly repealed by Parliament. Lord Wilberforce’s extrajudicial comments: ‘In strict law
there may be no difference in status as between one Act of Parliament and another, but I
confess to some reluctance in holding that an Act of such constitutional significance as the
Union with Ireland Act is subject to the doctrine of implied repeal’
Moreover, the Scotland Act, Government of Wales Act and the Northern Ireland Act 1998,
have developed a form of self government in the UK. The devolved bodies are at the will of the
Parliament and if the Parliament
so desires it can strike down the whole devolutionary system via one small enactment. The
perception of the Scots is that the UK Parliament should not make laws in the devolved areas
without their consent and if it does so, it would highly likely precipitate a political crisis.
Parliament can change or redefine itself (for example, the House of Lords Act 1999 abolished
the right of most hereditary peers to sit in the Lords). In doing so it can in effect regulate the
way future Parliaments can go about making legislation. Most significant in this context are the
Parliament Acts of 1911 and 1949 which reduced the powers of the House of Lords in relation
to legislation.
A potentially controversial thing is that the 1949 Act was resisted by the Lords, and forced
through by the Commons using the 1911 Parliament Act procedure itself. The question whether
this was legitimate was discussed in the case of Jackson v Attorney General [2005]. This case
involved a challenge to the hunting ban in the Hunting Act 2004, which was also forced through
by the Commons under the Parliament Acts procedures, in the face of opposition from the
Lords. In Jackson it was argued that the 1949 Act was not a proper Act of Parliament - and that
therefore the Hunting Act (also passed using the Parliament Act 1949) was invalid because it
passed without the consent of the House of Lords in accordance with the procedure contained
in s.2 Parliament Act 1911. Nine Law Lords rejected this unanimously, refusing to look behind
the 1949 Act and the Hunting Act 2004. It reinforces the ‘enrolled’ bill rule. Another judge
made some interesting comments on Parliamentary sovereignty in the case of Jackson,
suggesting that there might be circumstances in which judges could withdraw their loyalty or
support to the doctrine of parliamentary supremacy:
‘The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and
absolute as it was, can now be seen to be out of place in the modern United Kingdom.
Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is
a construct of the common law. The judges created this principle. In exceptional circumstances
involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate
Committee of the House of Lords or a new Supreme Court may have to consider whether this is
a constitutional fundamental which even a sovereign Parliament acting at the behest of a
complaisant House of Commons cannot abolish.’ Lord Steyn's words remind us of the nature
and source of the doctrine of Parliamentary sovereignty; and reflect a common contemporary
view that Dicey's classic version of the doctrine no longer entirely reflects reality.