Sincethe New Labour government came into power through election in 1997, the UKconstitution has experienced an era of reform1.The pace of change has been drastic among other things, individual rights havebeen made directly actionable in domestic courts2;the composition of the House of Lords has been reformed (albeit partially)3and new institutions have been created to exercise legislative and executivepowers in Scotland, Wales and Northern Ireland4.Furthermore, in replacing the Appellate Committee of the House of Lords a UKSupreme Court has been established alongside reform to judicial leadership andappointments5.
Notably, all these factors have all contributed to the construction of a widerconstitutional role for the judiciary in light of the Constitutional Reform Actand the landmark case of Jackson6,thus, launching the notion of judges in the UK becoming more prominent in theirroles as constitutional ‘actors’. Consequently, many are left wondering whetherthe doctrine of parliamentary sovereignty which had always been one of UK’sconstitutional pillars is now ripe for reconsideration. This essay aims toargue that albeit these changing circumstances, the fundamental principle ofparliamentary sovereignty should not be seen to be disposed, instead, ourunderstanding of the position and the challenges ostensibly imposed posed tothe doctrine should be, as Michael Gordon defined, ‘reconfigured’7. ParliamentarySovereignty and the Rule of Law: The current position A.VDicey famously considered parliamentary sovereignty to be the primeconstitutional principle in the UK. However, it must be noted that his viewthat Parliament has the rights to ‘make or unmake any law whatever’8does not assert that Parliament is omnipotent but that constitutional democracy official power should be ‘controlledand limited’9.From the surface, this seems to be true.
Dicey’s conferment of prior status toparliamentary sovereignty over the rule of law has always been honoured inpractice by the courts. The ‘orthodox view’ that Dicey put forth alsoseems to withstand logical analysis seeing that the UK courts, when viewedcontinentally, are not constitutional courts. In this context, the status ofthe courts in the UK can be contrasted with that of constitutional courtselsewhere. Back in 1781, the constitution of the United States of America didnot allow in many words the Supreme Court to strike down Acts of the federalCongress. However, it was soon held in the landmark case of Marbury v Madison10where the principle of judicial review wasestablished in which federalcourts were entitled to declare legislative and executive actsunconstitutional.
Thus, when the Supreme Court was established in 2009, there weresome who question whether the UK courts might eventually evolve into a US styleSupreme Court11.The proposition is especially seductive when viewed in light of theimplementation of the Constitutional Reform Act 2005 and other constitutionaldevelopments which allowed us to observe a shift in practice and structure ofthe UK’s unwritten constitution. Courts have been more willing to imposelimitations 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 injustifying their judgement when constraining discretionary power conferred byParliament on public officials and to establish the grounds of both proceduraland substantive public law duties and rights of the individual against thestate, namely through judicial review proceedings. Part 1 of the 2005Act 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 remainsthe foundation of our uncodified constitution, have undergone subtle changessince 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 oflaw has now ‘changed’ in light of the recent constitutional developments whichwill be discussed shortly13. Have the courts in the UK acquired theconfidence to take the role of constitutional courts as outlined above? The role ofthe courts is to ensure that public bodies stay within the limits of the powerswhich Parliament has given them or, in the case of central government, withinthe limits of the royal prerogative. But what would happen if in thecircumstances of those rare cases where the two organising and fundamentalprinciples of our Constitution might conflict, which will take priority? And if so, will the rule of law still standas the ‘historic servant’14to Parliamentary sovereignty? ContemporaryChallenges: The European Union and Jackson The UK formally joined the European Union on 1January 1903. The relationship between UK law and the various treaties isgoverned by the European Communities Act 1972 (ECA) which lay the foundationsof EU law. Section 2(1) of the ECA, which provides that ‘allsuch rights, powers, liabilities, obligations and restrictions from time totime created or arising by or under the Treaties’ shall have ‘legal effect’ andbe enforceable in the UK.
Furthermore, in accordance with section 2(4) whichprovides that ‘any enactment passed or to be passed … shall be construed andhave effect subject to the foregoing provisions of this section’. purports toensure that any domestic legal rule, regardless of its status, will take effectsubject to the law of the EU. This principle of the supremacy of EU law,established in the case of Costa15and further developed in InternationaleHandelsgesellschaft16and Simmenthal17seems to pose a potentially potent challenge to the traditional Diceyanunderstanding of the doctrine of parliamentary sovereignty.
For the first time,courts seem to possess the power to determine whether an Act of Parliament isvalid in accordance with the terms that legislation by future Parliaments wouldhave to be compatible with EU law. This was illustrated in Factortame18litigation in which the House of Lords ruled that the provisions of theMerchant Shipping Act 1988 which restricted the right of foreign-owned ships tofish in UK waters, had to be disapplied in line with the principle of EU lawsupremacy. Thus the question; did the UK’s membership in the EU allowed theimpossible? Could courts displace the doctrine of parliamentary sovereignty andstrike down legislations which they deem incompatible? Lord Bridge inFactortame seems to answer in the negative when he characterises therestriction on parliamentary sovereignty imposed by EU law as a ‘voluntary’19one which was accepted by Parliament itself.
Parliament is still the ‘author’of whatever limited constitutional change that might be recognized and thecourts, merely their ‘agents’ in implementing Parliament’s will contained inthe statute. This is especially true when read in line with the case of Thorburn20where Laws LJ stated that although the ECA 1972 is regarded as ‘constitutionalstatute’ and enjoys a position above ordinary status, it can still be repealedby ‘unambiguous words’21by Parliament. Perhapsthe better approach in addressing these issues is to consider whether any ‘rule of recognition’22 which supports parliamentary sovereignty has nowbeen surpassed by one which prefers the rule of law. Positivists track anyalteration to their rule of recognition by reference to its internal acceptanceon the part of at least a core of officials administering the legal system. Isthere any altered “political fact”23 which justifies a new-found judicial authorityto review the validity of legislation so as to ensure conformity with the ruleof law? To answer this, it would beuseful to look into the famous case of Jackson which provides compelling evidence thatthere are changed understandings and expectations which, unlike in the past,reject the notion of the unfettered authority of a legislature, howeverrepresentative of popular opinion it may be.
InJackson, the House of Lords was called upon to resolve adispute about whether the Hunting Act 2004 was a valid piece of legislation.The argument was that the Parliament Act 1911, in providing thata Bill might become law in certain circumstances without the consent of the Houseof Lords, had delegated the power of Parliament as lawfully constituted. Thus,the legislation passed was delegated rather than primary legislation and courtspossess the power to strike down primary legislation.
The Parliament Act 1949,passed under the 1911 Act modified the circumstances in which a Bill can becomelaw especially in the absence of the Lords’ consent. Thus, the argument thatthe Hunting Act 2004, passed under the modified procedure of the 1949 Act wasinvalid. The Appellate Committee of the House of Lords rejected the argument.
The language used was explicit; any Bills passed under the 1949 procedure wouldbecome Acts. There was no delegation to a lesser body. Thus, as Lord Steyn putforth, a distinction between what Parliament can do via legislation and whatParliament has to legislate needs to be drawn24.The most important implication from the Jackson case is the dicta by the Lordsthat the absolute sovereign authority of Parliament that was stronglyemphasised by Dicey is no longer upheld as the primary constitutional principlein the UK. Lord Hope of Craigheadwas prepared to regard the principle of the rule of law to be our “ultimatecontrolling”25factor while Lord Steyn and Lady Hale readily stated that the courts should beready to intervene if the rule of law were subverted by abolishing judicialreview (Lord Steyn) or when infringement of individual rights are at stake(Lady Hale). Despite thecompelling 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 anew rule of recognition. Instead, it points towards a shift to the manner andform conception or ‘new view’ of parliamentary sovereignty. LordBingham, in the minority, noted, there is ‘no basis in the language of section2(1) or in principle for holding that the parenthesis in that subsection … areunamendable save with the consent of the Lords’26.Michael Gordon argued that the courts are only entitled to recognise the actualexplicit conditions put forth by Parliament when relevant statutory conditionson 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 lawfullyobliged to impose those conditions and doing the opposite is simply elevatingthe judiciary illegitimately to constitutional supremacy. Judicial Independence Lastly,we consider how despite the apparent strengthening of judicial independence inthe UK courts, courts are still subordinate to Parliament in the sense that itis Parliament that has the final say. under section 3(1) of the Constitutional Reform Act to “uphold thecontinued independence of the judiciary.
” The Lord Chancellor has anadditional duty, expressed in the oath of office, to “defend” thatindependence. The rest of section 3 sets this defence includes preventing undueGovernment influence on judicial decisions (including undue ministerialcriticism of judicial decisions), ensuring adequate resources for the judiciaryto exercise their functions and having regard to the public interest. As Grahamput forth, the independence of the judiciary is a core element of the rule oflaw as it places the judiciary in a position as to attach weight to ‘cherishedconstitutional goods’ in the absence of political pressure.
However, it must bereconciled with the fact that the Act remains consistent with the politicalmodel in the sense that the Lord Chancellor albeit assuming the role of anordinary Minister retains the final say and that the statutory duty to upholdjudicial independence is merely declaratory. Inconclusion, this essay does not aim to purport the view that the UKconstitution is purely ‘political’. It cannot be denied that in light of allthe constitutional changes in the UK as discussed, the judiciary has beenempowered in a way that they play a special role in constitutional terms in upholdingfundamental principles. However, it is the principle of Parliamentarysovereignty namely the ‘new view’ that prevails in the end. 1 See D Oliver, Constitutional Reform in the UK (Oxford, Oxford UniversityPress, 2003)2 Human Rights Act 19983 House of Lords Reform Act 1999.
4 Scotland Act 1998, Northern Ireland Act 1998, and Government ofWales Act 1998 subsequently amended by the Government of Wales Act 2006, the Northern Ireland Act 2009, andScotland Act 2012.5 Constitutional Reform Act 2005.6 R (on the application of Jackson) v Attorney General 2005 UKHL56, 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), 229-2518 A.V. Dicey, Introduction tothe Study of the Law of the Constitution (10th edn, Macmillan & Co Ltd 1961)40.9 J. Jowell, “The Rule of Law Today” in J.
Jowelland D. Oliver, eds, The Changing Constitution (5th edn, Oxford University Press, 2004), p.5. 10 Marbury v Madison 5 US137 (1803).11 See the discussion in DianaWoodhouse, ‘The Constitutional and Political Implications of a United KingdomSupreme Court’ (2004) 24 LegalStudies 13412P.P. Craig, “Formal and Substantive Conceptions of the Ruleof Law: An Analytical Framework” 1997 P.
L. 447.13 14 15 Case 6/64 Costa v ENEL (Ente Nazionale Energia Elettrica) 1964ECR 585, 1964 CMLR 425.16 Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- undVorratsstelle fur Getreide und Futtermittel 1970 ECR 1125, 1972 CMLR 255.17 Case 106/77 Amministrazione delle Finanze dello Stato v SimmenthalSpA (No 2) 1978 ECR 629, 1978 3 CMLR 263.18 R v Secretary of State forTransport, ex p Factortame Ltd (No2) 1991 1 AC 603 (HL). 19 20 Thoburn v.
Sunderland CityCouncil 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.
Wade, “The Legal Basis of Sovereignty”1955 C.L.J. 17224 Jackson (n 6) 73.25 ibid 107.26 ibid 32.27