LYDR4

Dicey’s Parliamentary sovereignty, an immutable doctrine.

Parliamentary sovereignty is an important doctrine in the United Kingdom’s (UK)

legal and political system ; Dicey, an English jurist and author theorised the doctrine
of Parliamentary sovereignty in ‘Law of the constitution’ chapter 1.
To have a better grasp of the extent of Parliament’s power according to Dicey we
can refer to one of his citations “Parliament can do everything but make a woman a
man, and a man a woman”1 although this may hold less power today than at the
time it was written; it expresses that Parliament can do anything that is not of
supernatural resort, in other words, it is supreme and sovereign. Today most
countries have a legal system that relies on a stricter separation and distribution of
power, having an all-powerful body might raise some questions about the efficiency
of the body and the preservation of democracy and human rights. Moreover, in
today’s legal scene, Parliamentary sovereignty seems to be more limited than what
Dicey has accounted for. This raises the question, to what extent did Parliamentary
sovereignty evolve and can we consider that Dicey’s account of it is thoroughly
outdated and bears little resemblance to contemporary legal reality? I will argue that
although Dicey’s parliamentary sovereignty evolved and changed throughout the
years, the core of the doctrine is still valid. Starting with how international treaties,
specifically European Union (EU) law made important modifications to Parliamentary
sovereignty without negating the basic rule, then how changes in domestic law have
affected the doctrine.

The UK’s membership in the EU and the incorporation of EU law into domestic law
have been a real challenge to Dicey’s idea of Parliamentary sovereignty. His
definition of the doctrine, that Parliament is a body which has “the right make or
unmake any law whatever”2; that it is a supreme legislative body; “which cannot be
bound by any law”3. The EU law which was given effect through the European
Communities Act 1972 (ECA), is supreme and applied in domestic law. Contrary to
Dicey’s idea, Parliament is no longer the only legislative body and is now bound by
law that evolves and has direct effect in domestic law. Indeed EU law prevails over
any act of parliament “passed or to be passed”4. Parliament is in that sense bound
by law it did not make, EU law is here supreme; this sets out a new constitutional
regime including a hierarchy of norms which is in contradiction to the idea submitted
by Dicey; that there is no hierarchy in norms in the UK. This important modification to
the constitutional regime and the traditional conception of parliamentary sovereignty
is shown by the qualification of the 1972 Act as a constitutional statute, prevailing
over any act of parliament. This clearly shows that the strict definition of Dicey can
be considered obsolete in light of EU law.
Nonetheless, Parliament had to agree upon EU law by passing the ECA and kept the
ability to repeal the Act and the consequent rules.
What it means is that parliament can still decide to not be bound by EU law, not only
in theory but factually, the UK left the EU by an Act of parliament which prevailed
1
PP.40 Law of the Constitution, Dicey
2
PP.40 Law of the Constitution, Dicey
3
PP.72-89
4
The ECA 1972 s.2 (2) and (4)
LYDR4

over the past ECA, it repealed it through Brexit by the European Union (Withdrawal)
Act 2018.
The basic rule of Dicey’s idea about parliamentary sovereignty “Parliament has the
right to make or unmake any law whatever” remains relevant today since parliament
can depart from EU law. Also, as Dicey stated there are limitations on parliament
even if it is sovereign5, these limitations being external and internal, they do not find
their source in a “statute-book or from the practice of the courts”6. The external
limitation relies on the need for the citizens to accept and obey the rules made by
parliament, and the internal limit is dependant on social context and morality; in
which parliament exercises its power.
Being part of a community even as broad as the EU is a new social context where to
preserve the certainty that the “subjects” (citizens) will not “disobey or resist laws”;
parliament upheld the chart of human rights, imposed by the EU, protecting the
citizen’s human rights and liberties, that prevailed over any other act of parliament.
The second limitation vis-à-vis EU Law is an internal limitation, the Parliament itself
would not want to go against EU law because of the social context. Dicey, would,
potentially argue that EU law has been protected by Parliament itself, the limitations
to the legislative body came from the body itself, rather than from a higher normative
source, and Parliament remained sovereign as it could ignore EU law if it wanted to
and to stop applying it; which Parliament did through EU withdrawal Act. The ECA
prevailed for a certain period until Parliament decided that it should not anymore,
overall we can possibly still consider that it was not bound by a previous Act as the
idea that a passed act of parliament can affect a future act of parliament is
inconsistent with Dicey’s doctrine.

In our contemporary legal reality, one of the changes to our legislative power is that
the sovereignty seems distributed, rather than held by Parliament alone.
Also, as opposed to Dicey’s doctrine, some Acts such as the Bill of Rights seem to
have constitutional status, but to what extent that is, in other words, can Parliament
enact laws inconsistent with Human rights without being restricted. The courts
suggested that for fundamental principles, it will be assumed that parliament did not
intend to contravene these. Such as in Jackson where the courts recognised that
they were able to decide in certain circumstances whether something is an Act of
parliament, which differs from Dicey’s perception of Parliamentary sovereignty, in
this case, the question of the validity of the acts arose, Baroness Hale at [159] “ the
courts will, of course, decline to hold that Parliament has interfered with fundamental
rights unless it has made its intentions crystal clear”; the nuance of this decision is
that it does not negate the Parliament’s right to legislate inconsistently with
fundamental rights if it is expressly provided that it was the intention; although it
remains unclear what an express provision is. This refers back to Dicey’s idea of
external limitations, the parliament can make any law it wants, even if it goes against
fundamental rights or principles but it probably would not, as it might make citizens
disobey, or disregard a rule that negates their rights. Nonetheless, there is a clear
expansion of the courts' power to limit the Parliament by being “particularly

5
PP.76-82
6
P.70
LYDR4

suspicious towards an act that attempts to subvert the rule of law”7. The courts in
their practice can be said to put some limitation or at the very least make it harder on
parliament to pass such law that would go against fundamental rights.

The other aspect of domestic law that seems to have changed Dicey’s doctrine of
Parliamentary Sovereignty is devolution; as mentioned earlier, sovereignty is now
divided. Dicey, only refers to the English constitution, Parliament did evolve since
and its characteristics as well as prescribed in obiter in MacCornick v Lord Advocate8
by Lord President Cooper. Furthermore, the idea of divided sovereignty is
ascertained in Jackson9 Lord Steyn “ the settlement contained in the Scotland Act
1998 also point to a divided sovereignty” suggesting that the devolution of legislation
has an impact on sovereignty. In the AOU 1706, which created a joint parliament,
Article 25 states that laws contrary the Act shall from and after the Union cease and
become void. If we consider this article alone, Parliament appears to be restricted;
but in Gibson v Advocate General 1975, this question arose as it concerned the
government’s ability to interfere with fishing rights in Scottish waters. It was held that
the Acts of union would not apply, the courts also added that they could not inquire
into the “evident utility of Scotland” meaning that there is no safeguard to what
parliament passes and how it interferes with the Acts of Union. Furthermore, the
courts ascertained that the Act of Union, is only a statute and a statute cannot
restrict Parliament in the future. This refers back to Dicey’s basic rule on
parliamentary sovereignty.

From this perspective, Dicey’s idea of Parliamentary sovereignty is still relevant

today in our contemporary legal system especially the core of it (the basic rule)
although it has been expanded and more restrictions or obstacles might limit its
power. Overall it is mostly that the limitations already introduced by Dicey (internal
and external) hold more weight today. Nonetheless, courts agree that if Parliament’s
intentions are made clear, no matter what they are and even if incompatible with
fundamental rights, they will be applied by the courts.

Word count : 1501

7
Jackson v Attorney General [2005] UKHL Lady Hale at [159]
8
1953 SC 396
9
Jackson v Attorney General [2005] UKHL
LYDR4

Bibliography:

Table of Cases
 Gibson v advocate general 1975 SLT
 Jackson v Attorney General [2005] UKHL
 MacCornick v Lord Advocate 1953. SC 396

Table of Legislation
 European Communities Act 1972
 European Union (withdrawal) Act 2018
 Acts of Union with Ireland 1801
 Acts of union with Scotland 1706

Bibliography
 Dicey A, Law of the constitution (10th edition) Ch.1
 Elliott and Thomas, Public Law (3rd end, Oxford Press, 2017)
 Lord Hope, ‘Sovereignty in Question – a view from the Bench’ (June
2011)