Marshall argues that
“the most obvious and undisputed convention” is that Parliament does not legislate
in an “oppressive or tyrannical way,” because of the rule of law. The nature of
UK’s uncodified constitution means that governing constitutional principles and
rules are largely unwritten. The obscure nature of the constitution thus leads
to controversy regarding the extent to which constitutional principles such as
the rule of law and parliamentary sovereignty applies in the UK.1
The rule of law has a notable impact on parliamentary sovereignty. Dicey
defines a ‘formal’ rule of law which requires that the powers exercised by the
state be lawful and not arbitrary in nature, as well as requiring that all
individuals be equal under the law and that laws are clear.2 The
more ‘substantive’ approach of the principle advocates the protection of
certain human rights.3
The UK also recognised the separation of powers, a principle conceptualised by
Montesquieu which depicted the division of governmental institutions into the
legislature, executive and judiciary in order to avoid arbitrary use of power.4
The UK, however, does not adhere by the pure separation of powers as conceived
by Montesquieu. Instead, it has a fused executive and legislature, where the
executive is drawn from elected members of Parliament’s House of Commons. As a
result of this fusion there is a reliance on judicial review to hold the
executive into account.5
In analysing common law judgments, it is possible to observe the extent to
which these principles affect parliamentary sovereignty’s position as the “most
fundamental” principle of the UK.
The courts have
traditionally sought to uphold the rule of law as well as adhere to
parliamentary sovereignty. According to the Diceyan conception of parliamentary
sovereignty the courts cannot question an Act of Parliament, which was
established in British Railways Board v
Lord Reid in Madzimbannuto v
Lardner-Bruker accepts that “it would be unconstitutional for the United
Kingdom to do certain things,” but it is not beyond the power of the Parliament
and the courts would not be able to “hold the Act of Parliament invalid.”7
However, there exists dicta which suggests a shift in court attitudes in favour
of upholding the rule of law. Lord Hope considers the rule of law “enforced by
the courts” as “the ultimate controlling factor” of the British constitution.8
Lord Steyn and Lady Hale also proposes in Jackson
that the courts may reject Parliament’s attempts to “subvert the rule of
law” if it were to abolish judicial reviews.9 As a
result of separation of powers, the courts are tasked with interpreting
legislation and holding the executive to account. The courts are traditionally
cautious to not infringe on parliamentary sovereignty.10 However,
the judgment in Evans, where a narrow
interpretation by the majority judgment of a veto power allowed the disclosure
of Prince Charles public policy letters arguably “rewrote” Parliament’s intention.11 Evidently, both the rule of law and
separation of powers has seemingly allowed the judiciary to be more questioning
of Parliament which challenges the sovereignty of the principle. Lord Hope is
correct to remark that Parliament “is no longer, if it ever was absolute,” but
he also points out that “our constitution is dominated by” parliamentary
Gordon is thus convincing in the argument that the courts have “continued to
push at the boundaries of parliamentary sovereignty” as is evident through the
strained interpretation of Evans and the increasing emphasis placed on the rule
of law, but “there has been no change to this core principle.”13
Therefore, while dicta of these esteemed judges have highlighted the growing
impact of the rule of law on parliamentary sovereignty, it is as Elliott
suggests, it would “be a very brave judge” who would actually go through with
the threats made or hinted in Jackson.14 If
the courts were to actually reject an Act of Parliament, it would be akin to a
‘revolution’ which would complete alter constitutional practice. Since the
courts have yet to disapply an Act of Parliament outright, it is reasonable to
infer that this “revolution” has not occurred and parliamentary sovereignty
remains the most fundamental principle.
The enactment of the
Human Rights Act 1998 (HRA) is also evidence of UK’s inclination towards a more
‘substantive’ rule of law. While it is argued that the rule of law is
with the sovereignty of parliament, the HRA 1998 represents a compromise
between the two principles where parliamentary sovereignty is preserved. 16
The act has increased the role of the judiciary where the courts must interpret
legislation in accordance with Convention Rights,17 and
are able to make declarations of incompatibility if an Act of Parliament is
considered incompatible with Convention rights. 18 But, parliamentary sovereignty is retained
through s 4(6) which explicitly states that a declaration of incompatibility
does not render the act void or changed.19 It
is ultimately up to Parliament to decide whether to act upon the declaration
made. A declaration of incompatibility could indicate that a Convention right
has been breached and a UK citizen may have recourse through the European Court
of Human Rights. This may possibly urge Parliament to amend the legislation as
it would be politically undesirable to be perceived as breaching protected
However, since its enactment only 29 declarations of incompatibility were made.21
The courts, instead, prefers to make use of s 4 of the HRA 1998 and interpret
legislation instead of encroaching on the principle of parliamentary
1J Goldsworthy, Parliamentary
Sovereignty: Contemporary Debates (Cambridge: Cambridge University Press
Dicey (n 6).
3 Lord Bingham, ‘The Rule of Law and its Virtue’ (1977)
66(1) Cambridge Law Journal 67-85.
4 Charles De Secondat Montesquieu and David Wallace
Carrithers, The Spirit of Laws : A
compendium of the first English edition (Berkeley: University of California
5 Roger Masterman and Se-shauna Wheatle, ‘Unpacking
separation of powers: judicial independence, sovereignty and conceptual
flexibility in the UK constitution’ 2017 Public
Law 469-487, 486.
2 WLR 208, 1974 AC 765 (HL).
1968 3 WLR 1229, 1969 1 AC 645 (PC).
8 Jackson (n 9) 159.
Anisminic Ltd v Foreign Compensation Commission 1969 2 WLR 163 1969 2 AC
(Evans) v Attorney General 2015 UKSC 21, 2015 AC 1787 168.
12 Jackson (n 9) 104.
Gordon, ‘The UK’s Fundamental Constitutional Principle: Why the UK Parliament
Is Still Sovereign and Why It Still Matters’ (2015) 26(2) King’s Law Journal 229-251,
Elliott, ‘1,000 words / Parliamentary sovereignty’ (Public Law for Everyone,
October 15, 2014) < https://publiclawforeveryone.com/2014/10/15/1000-words-parliamentary-sovereignty/ > accessed 20 January 2017.
Loughlin, Public Law and Political Theory
(Clarendon Press, Oxford 1992) 151; T Allan, Law, liberty, and justice: The legal
foundations of British constitutionalism (OUP, Oxford 1993).The Human
Rights Act 1998.
Allan, Law, liberty, and justice: The
legal foundations of British constitutionalism (OUP, Oxford 1993) 16
Human Rights Act 1998, s 3.
20 I Loveland, Constitutional
Law, Administrative Law, and Human Rights electronic resource: A critical
introduction (6th edn, Oxford: OUP 2012) 647.
21 Joint Committee on Human Rights, Human Rights Judgments, Seventh Report of Session 2014–15 < https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/130.pdf > accessed 19 January 2017.
Bellamy, ‘Political constitutionalism and the Human Rights Act’ (2011) 9(1)