Since
the New Labour government came into power through election in 1997, the UK
constitution has experienced an era of reform1.
The pace of change has been drastic among other things, individual rights have
been made directly actionable in domestic courts2;
the composition of the House of Lords has been reformed (albeit partially)3
and new institutions have been created to exercise legislative and executive
powers in Scotland, Wales and Northern Ireland4.
Furthermore, in replacing the Appellate Committee of the House of Lords a UK
Supreme Court has been established alongside reform to judicial leadership and
appointments5.
Notably, all these factors have all contributed to the construction of a wider
constitutional role for the judiciary in light of the Constitutional Reform Act
and the landmark case of Jackson6,
thus, launching the notion of judges in the UK becoming more prominent in their
roles as constitutional ‘actors’. Consequently, many are left wondering whether
the doctrine of parliamentary sovereignty which had always been one of UK’s
constitutional pillars is now ripe for reconsideration. This essay aims to
argue that albeit these changing circumstances, the fundamental principle of
parliamentary sovereignty should not be seen to be disposed, instead, our
understanding of the position and the challenges ostensibly imposed posed to
the doctrine should be, as Michael Gordon defined, ‘reconfigured’7.

 

Parliamentary
Sovereignty and the Rule of Law: The current position

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A.V
Dicey famously considered parliamentary sovereignty to be the prime
constitutional principle in the UK. However, it must be noted that his view
that Parliament has the rights to ‘make or unmake any law whatever’8
does not assert that Parliament is omnipotent but that constitutional democracy official power should be ‘controlled
and limited’9.
From the surface, this seems to be true. Dicey’s conferment of prior status to
parliamentary sovereignty over the rule of law has always been honoured in
practice by the courts. The ‘orthodox view’ that Dicey put forth also
seems to withstand logical analysis seeing that the UK courts, when viewed
continentally, are not constitutional courts. In this context, the status of
the courts in the UK can be contrasted with that of constitutional courts
elsewhere. Back in 1781, the constitution of the United States of America did
not allow in many words the Supreme Court to strike down Acts of the federal
Congress. However, it was soon held in the landmark case of Marbury v Madison10where the principle of judicial review was
established in which federal
courts were entitled to declare legislative and executive acts
unconstitutional.

 

Thus, when the Supreme Court was established in 2009, there were
some who question whether the UK courts might eventually evolve into a US style
Supreme Court11.
The proposition is especially seductive when viewed in light of the
implementation of the Constitutional Reform Act 2005 and other constitutional
developments which allowed us to observe a shift in practice and structure of
the UK’s unwritten constitution. Courts have been more willing to impose
limitations and duties upon public bodies in line with the rule of law which has been applied as a principle,
rather than a ‘specific rule’12, throughout the years in
justifying their judgement when constraining discretionary power conferred by
Parliament on public officials and to establish the grounds of both procedural
and substantive public law duties and rights of the individual against the
state, namely through judicial review proceedings. Part 1 of the 2005
Act provided that it ‘does not adversely affect… the existing constitutional principle of the rule of law’.
Thus, the two fundamental principles of our constitution, albeit still remains
the foundation of our uncodified constitution, have undergone subtle changes
since it was articulated in the late half of the 19th century.
Jeffrey Jowell posed the crucial question of whether the relationship between parliamentary sovereignty and the rule of
law has now ‘changed’ in light of the recent constitutional developments which
will be discussed shortly13.

 Have the courts in the UK acquired the
confidence to take the role of constitutional courts as outlined above? The role of
the courts is to ensure that public bodies stay within the limits of the powers
which Parliament has given them or, in the case of central government, within
the limits of the royal prerogative. But what would happen if in the
circumstances of those rare cases where the two organising and fundamental
principles of our Constitution might conflict, which will take priority? And if so, will the rule of law still stand
as the ‘historic servant’14
to Parliamentary sovereignty?

Contemporary
Challenges: The European Union and Jackson

 

The UK formally joined the European Union on 1
January 1903. The relationship between UK law and the various treaties is
governed by the European Communities Act 1972 (ECA) which lay the foundations
of EU law. Section 2(1) of the ECA, which provides that ‘all
such rights, powers, liabilities, obligations and restrictions from time to
time created or arising by or under the Treaties’ shall have ‘legal effect’ and
be enforceable in the UK. Furthermore, in accordance with section 2(4) which
provides that ‘any enactment passed or to be passed … shall be construed and
have effect subject to the foregoing provisions of this section’. purports to
ensure that any domestic legal rule, regardless of its status, will take effect
subject to the law of the EU. This principle of the supremacy of EU law,
established in the case of Costa15
and further developed in Internationale
Handelsgesellschaft16
and Simmenthal17
seems to pose a potentially potent challenge to the traditional Diceyan
understanding of the doctrine of parliamentary sovereignty. For the first time,
courts seem to possess the power to determine whether an Act of Parliament is
valid in accordance with the terms that legislation by future Parliaments would
have to be compatible with EU law. This was illustrated in Factortame18
litigation in which the House of Lords ruled that the provisions of the
Merchant Shipping Act 1988 which restricted the right of foreign-owned ships to
fish in UK waters, had to be disapplied in line with the principle of EU law
supremacy. Thus the question; did the UK’s membership in the EU allowed the
impossible? Could courts displace the doctrine of parliamentary sovereignty and
strike down legislations which they deem incompatible? Lord Bridge in
Factortame seems to answer in the negative when he characterises the
restriction on parliamentary sovereignty imposed by EU law as a ‘voluntary’19
one which was accepted by Parliament itself. Parliament is still the ‘author’
of whatever limited constitutional change that might be recognized and the
courts, merely their ‘agents’ in implementing Parliament’s will contained in
the statute. This is especially true when read in line with the case of Thorburn20
where Laws LJ stated that although the ECA 1972 is regarded as ‘constitutional
statute’ and enjoys a position above ordinary status, it can still be repealed
by ‘unambiguous words’21
by Parliament.

 

  Perhaps
the better approach in addressing these issues is to consider whether any ‘rule of recognition’22 which supports parliamentary sovereignty has now
been surpassed by one which prefers the rule of law. Positivists track any
alteration to their rule of recognition by reference to its internal acceptance
on the part of at least a core of officials administering the legal system. Is
there any altered “political fact”23 which justifies a new-found judicial authority
to review the validity of legislation so as to ensure conformity with the rule
of law?  To answer this, it would be
useful to look into the famous case of Jackson which provides compelling evidence that
there are changed understandings and expectations which, unlike in the past,
reject the notion of the unfettered authority of a legislature, however
representative of popular opinion it may be.

 

In
Jackson, the House of Lords was called upon to resolve a
dispute about whether the Hunting Act 2004 was a valid piece of legislation.
The argument was that the Parliament Act 1911, in providing that
a Bill might become law in certain circumstances without the consent of the House
of Lords, had delegated the power of Parliament as lawfully constituted. Thus,
the legislation passed was delegated rather than primary legislation and courts
possess the power to strike down primary legislation. The Parliament Act 1949,
passed under the 1911 Act modified the circumstances in which a Bill can become
law especially in the absence of the Lords’ consent. Thus, the argument that
the Hunting Act 2004, passed under the modified procedure of the 1949 Act was
invalid. The Appellate Committee of the House of Lords rejected the argument.
The language used was explicit; any Bills passed under the 1949 procedure would
become Acts. There was no delegation to a lesser body. Thus, as Lord Steyn put
forth, a distinction between what Parliament can do via legislation and what
Parliament has to legislate needs to be drawn24.
The most important implication from the Jackson case is the dicta by the Lords
that the absolute sovereign authority of Parliament that was strongly
emphasised by Dicey is no longer upheld as the primary constitutional principle
in the UK. Lord Hope of Craighead
was prepared to regard the principle of the rule of law to be our “ultimate
controlling”25
factor while Lord Steyn and Lady Hale readily stated that the courts should be
ready to intervene if the rule of law were subverted by abolishing judicial
review (Lord Steyn) or when infringement of individual rights are at stake
(Lady Hale).

 

  Despite the
compelling and strong obiter dicta of the majority of the Lords in Jackson,
those dicta are not concordant. Even so, they do not point towards a shift to a
new rule of recognition. Instead, it points towards a shift to the manner and
form conception or ‘new view’ of parliamentary sovereignty. Lord
Bingham, in the minority, noted, there is ‘no basis in the language of section
2(1) or in principle for holding that the parenthesis in that subsection … are
unamendable save with the consent of the Lords’26.
Michael Gordon argued that the courts are only entitled to recognise the actual
explicit conditions put forth by Parliament when relevant statutory conditions
on the use of legislative power is concerned rather that implying conditions of
‘their own making’27.
Thus, in line with the manner and form conception, only Parliament is lawfully
obliged to impose those conditions and doing the opposite is simply elevating
the judiciary illegitimately to constitutional supremacy.

 

Judicial Independence

 

Lastly,
we consider how despite the apparent strengthening of judicial independence in
the UK courts, courts are still subordinate to Parliament in the sense that it
is Parliament that has the final say. under section 3(1) of the Constitutional Reform Act to “uphold the
continued independence of the judiciary.” The Lord Chancellor has an
additional duty, expressed in the oath of office, to “defend” that
independence. The rest of section 3 sets this defence includes preventing undue
Government influence on judicial decisions (including undue ministerial
criticism of judicial decisions), ensuring adequate resources for the judiciary
to exercise their functions and having regard to the public interest. As Graham
put forth, the independence of the judiciary is a core element of the rule of
law as it places the judiciary in a position as to attach weight to ‘cherished
constitutional goods’ in the absence of political pressure. However, it must be
reconciled with the fact that the Act remains consistent with the political
model in the sense that the Lord Chancellor albeit assuming the role of an
ordinary Minister retains the final say and that the statutory duty to uphold
judicial independence is merely declaratory.

 

  In
conclusion, this essay does not aim to purport the view that the UK
constitution is purely ‘political’. It cannot be denied that in light of all
the constitutional changes in the UK as discussed, the judiciary has been
empowered in a way that they play a special role in constitutional terms in upholding
fundamental principles. However, it is the principle of Parliamentary
sovereignty namely the ‘new view’ that prevails in the end.

 

 

1 See D Oliver, Constitutional Reform in the UK (Oxford, Oxford University
Press, 2003)

2 Human Rights Act 1998

3 House of Lords Reform Act 1999.

4 Scotland Act 1998, Northern Ireland Act 1998, and Government of
Wales Act 1998 subsequently amended by 
the Government of Wales Act 2006, the Northern Ireland Act 2009, and
Scotland Act 2012.

5 Constitutional Reform Act 2005.

6 R (on the application of Jackson) v Attorney General 2005 UKHL
56, 2006 1 AC 262.

7 Michael Gordon, ‘The UK’s fundamental constitutional principle:
why the UK parliament is still sovereign and why it matters’ (2015) K.L.J.26(2), 229-251

8 A.V. Dicey, Introduction to
the Study of the Law of the Constitution (10th edn, Macmillan & Co Ltd 1961)
40.

9 J. Jowell, “The Rule of Law Today” in J. Jowell
and D. Oliver, eds, The Changing Constitution (5th edn, Oxford University Press, 2004), p.5. 

10 Marbury v Madison 5 US
137 (1803).

11 See the discussion in Diana
Woodhouse, ‘The Constitutional and Political Implications of a United Kingdom
Supreme Court’ (2004) 24 Legal
Studies 134

12P.P. Craig, “Formal and Substantive Conceptions of the Rule
of Law: An Analytical Framework” 1997 P.L. 447.

13

14

15 Case 6/64 Costa v ENEL (Ente Nazionale Energia Elettrica) 1964
ECR 585, 1964 CMLR 425.

16 Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und
Vorratsstelle fur Getreide und Futtermittel 1970 ECR 1125, 1972 CMLR 255.

17 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal
SpA (No 2) 1978 ECR 629, 1978 3 CMLR 263.

18 R v Secretary of State for
Transport, ex p Factortame Ltd (No2) 1991 1 AC 603 (HL).

19

20 Thoburn v. Sunderland City
Council 2002 4 All ER 156 (QB).

21 Thoburn (n 14) 185.

22 H.L.A. Hart, The Concept of Law
(3rd edn, Clarendon Press 2012) 150.

23 H.W.R. Wade, “The Legal Basis of Sovereignty”
1955 C.L.J. 172

24 Jackson (n 6) 73.

25 ibid 107.

26 ibid 32.

27