The traditional concept of parliamentary sovereignty, outlined in A.

V Diceys doctrine, must first

be defined. He encapsulated his theory by stating Parliamenthas, under the English
constitution, the right to make or unmake any law whatever...1 This concept has indeed been
greatly challenged and modified by the UK courts through the increasing influence of more
legally grounded constitutional principles. This essay will argue that the most significant
challenges to Parliament do indeed derive from the courts. In doing so we will discuss the
different mediums on which the courts have begun to impede Parliaments intentions. Firstly, we
will discuss the influence and use of EU law in relation to the UK courts and the ways in which
the judiciary have altered the constitutional landscape in which they operate. We will then
move on to consider the challenge posed by the courts in prioritizing common law constitutional
principles and the rule of law over Parliaments freedom, especially through means of judicial
review. Finally, one must consider the implications of the Human Rights Act 1998 on the
interpretive powers of the judiciary and discuss whether these powers do indeed impose
restraints on Parliament.

Arguably, the supremacy of EU law began a slow moving process in which the UK courts were
given increasing influence over fundamental constitutional matters. This effect was brought into
the domestic courts of the UK via the European Communities Act 1972.2 Section 3 (1) outlined
the means in which domestic courts should interpret law in line with EC law. However, it was
section 2 (4) that posed a significant challenge to traditional notions of parliamentary supremacy.
The key phrase that should be analyzed is as follows: any enactment passed or to be passed
shall be construed and have effect subject to the foregoing provisions of this section. This
section not only instructs courts to interpret legislation subject to community law but it also
applies to statutes to be passed.3 As well as allowing the 1972 Parliament effectively to bind its
successors it also placed a significant amount of authority in the hands of the courts. The
increasing powers of the courts to interpret domestic law in line with community law were
shown in Factortame (No.2),4 where, according to Wade, there had been a judicial revolution,5
in the House of Lords decision to temporarily disapply the Merchant Shipping Act 19886.
Although the courts were not fully constraining Parliament in this case made clear by Lord
Bridge that it was routed in a voluntary7 choice to enact the ECA in 1972 it arguably began a
pattern of increasing legal influence of the courts over the legislature.

It must be made clear that the argument here is not whether membership of the EU effected
Parliaments sovereignty. It is in fact the idea that this membership resulted in the courts
increased involvement in fundamental constitutional matters. The very fact that Laws LJ was
inclined to interpret statutes that condition the legal relationship between citizen and State in
some general, overarching manner as constitutional statutes in Thoburn8 exemplifies this new
modification by the courts. Elliot states that this decision presents parliamentary sovereignty as

1 A. Dicey, Introduction to the Study of the Constitution, London 1959, p.39.

2 European Communities Act 1972 (c. 68) S3(1), S2(4).
3 K. Syrett, The Foundations of Public Law, Hampshire, 2011, p.108.
4 R (Factortame Ltd) v Secretary of State for Transport, ex parte Factortame Ltd (No.2) [1991] 1 AC 603.
5 H.W.R. Wade, Sovereignty: Revolution or Evolution? (1996) 112 LQR 568
6 Merchant Shipping Act 1988 (c.12).
7 ibid, Factortame (No.2).
8 Thoburn v Sunderland City Council [2003] QB 151.
doctrine of the common law, subject to the same process of evolution as all other common law
principles.9 The Diceyan notion of Parliaments absolute supremacy in passing Acts without any
challenge is now somewhat degraded to a common law judicial matter. A final example may be
taken from the HS210 case. Here, Lords Neurberger and Mance explored whether an EU
directive11 would require courts to set aside a fundamental constitutional principle such as Art 9
of the Bill of Rights. They implied that it could, despite EU law being classed as a constitutional
principle in Thoburn12, due the view that some principles were more fundamental than others.
On his reflections on the case, Elliot notes that this case not only introduces a hierarchy of
constitutional principles creating a new constitutional landscape13 but also resonates this new
concept of the judiciary playing a larger constitutional role. It was not Parliament that ordered
this hierarchy, it was in fact a product of the common law. Therefore, these cases illustrate how
the courts have modified Diceyan ideology. Of course, they have not necessarily imposed
restraints on Parliament to act as it wishes, however they certainly have become more centered
on the constitutional stage.

One might take the view that these restraints on Parliament derive from the existence of
common law constitutional principles. These are principles developed by the courts where statute
has not necessarily given clear direction. If viewed in a certain way, these principles certainly
modify Diceys conception of parliamentary sovereignty as they look to an authority in the
common law and not statute. The interpretations of the judiciary against this backdrop of the
common law can be seen in the case of Witham14. The case concerned a claimant who was not
able to access his fundamental right to be heard by a court due to the Lord Chancellors decision
to introduce the Supreme Court Fees Order 1996 which prevented those with low incomes from
obtaining free legal aid. Laws J highlighted the idea that there may indeed be a realm of common
law that exists outside the powers of Parliament.15 He stated that certain fundamental rights
cannot be abrogated by the state, save by specific provision of an Act of Parliament. Although
he acknowledges sovereignty here, he makes it clear that some rights will remain logically
prior to the political process.16 Furthermore, writers such as TRS Allan have expanded on this
view, stating ...the political notion of the ultimate sovereignty of the electorate must be
distinguished from the legal doctrine of legislative supremacy17 His argument tackles the
question of whether Parliament would indeed be restricted by the courts if it attempted to pass
offensive legislation and puts simply that unconstitutional law is not a valid law.18

9 M. Elliot United Kingdom: Parliamentary Sovereignty under Pressure. International Journal of Constitutional
Law 2.3 (2004): 545-554.
10 R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, 1 WLR 324.
11 EU directive 2011/92/EU.
12 Ibid, Thoburn [2003].
13 M. Elliott, Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified
primacy of EU law U.K. Const. L. Blog (23rd January 2014)
14 R v Lord Chancelllor ex parte Witham [1998] QB 575
15 Elliot, The Principle of Parliamentary Sovereignty in a Legal, Constitutional and Political Perspective, The
Changing Constitution, 8th ed, p.56-58.
16 R v Lord Chancelllor ex parte Witham [1998] QB 575
17 Alan TRS, The Limits of Parliamentary Sovereignty [1985] Public Law 614.
18 Alan TRS, The Sovereignty of Law (2013) p.142-3.
The case of Jackson19 highlighted this clash between political and legal constitutionalism in the
dicta of several judges. Lord Steyn stated, 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. If that is so, it is not unthinkable that circumstances could arise where the courts may
have to qualify a principle established on a different hypothesis of constitutionalism.20
Furthermore, Lord Hope made clear that the rule of law enforced by the courts is the ultimate
controlling factor on which our constitution is based.21 These statements do not go as far as to
say that the courts have necessarily obtained the power to constrain Parliament, however they
do consider how the traditional notion of absolute supremacy has been modified on common law
grounds. Of course, we must not jump to conclusions as to predicting the end of Parliamentary
sovereignty. Tom Mullen writes that, important as the Jackson case is, it is probably too soon,
therefore, to predict the end of the sovereignty of Parliament as we have known it. He states that
orthodox views should simply view this case as part of the dialogue between branches of
government, simply asking Parliament to exercise some restraint in its sovereign power.22

Another area where the courts have perhaps shown a significant amount of independence,
contrary to traditional notions of sovereignty, is the use of interpretive powers under the HRA
199823. Section 3 requires courts to interpret legislation as far as possible in accordance with the
ECHR. There are multiple cases in which the extent of these interpretive powers have been
questioned. In Ghaidan V Godin-Mendoza24 the House of Lords used s. 3 to reinterpret the Rent
Act 197725 so as to allow same sex couples to take over tenancies if one partner dies. It had
previously restricted this right to those who had previously lived together as husband and wife.
The word spouse was reinterpreted to include unmarried homosexual couples as a result. This
interpretation clearly took an expansive approach26 to the meaning of the statute, with Lord
Nicholls attempting to avoid the decision as being construed against the will of Parliament. He
stated the meaning imported by application of s. 3 must be compatible with the underlying
thrust of the legislation that is being construed.27 From this point of view, it appears that, despite
occasionally reading up or down a statute, the courts are generally confined by Parliaments
intentions and certainly do not impede its freedom. The courts limited freedom to interpret
statute was reinforced in R v Anderson28. It was ruled that the Home Secretary could not fix a
new tariff of sentencing under section 29 of the Crime (Sentences) Act 199729. The Act had
expressed deliberate legislative intent in delegating this power, therefore s. 3 could not be used to
reinterpret the provision. As D. Nicol notes, s.3 could not be used to contradict clear words of a

19 R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262

20 ibid, [102].
21 ibid, [104].
22 Mullen, T, Reflections on Jackson v Attorney General: questioning sovereignty. Legal Studies, 27: 125.
(2007).
23 Human Rights Act 1998 (c. 42).
24 Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533.
25 Rent Act 1977 (c. 42).
26 OCinneide, C, Human Rights and the UK Constitution, The Changing Constitution, 8th ed, p.92-3.
27 ibid, [32].
28 R (Anderson) v Home Secretary [2001] UKHL 25.
29 Crime Act 1997, s.29.
statute.30 Therefore, despite demonstrating the limited freedom given to the courts in construing
meaning to certain Acts, the HRA does not operate as a significant restraint on sovereignty.

So, constraints imposed on Parliament by the courts have indeed modified the traditional
Diceyan conception of sovereignty. These constraints have been the most significant in terms of
limiting Parliaments freedom due to the fact that they have modified constitutional framework
and landscape. Through the EU and subsequent laws, cases have come before the courts in which
fundamental constitutional questions are asked, moving away from the authority of Parliament to
more of a common law constitution. However, one cannot totally agree with the statement in
discussion. The courts have challenged and modified the traditional conception of sovereignty,
however they have not imposed significant restraint on Parliaments freedom. They are given
some scope in the interpretation of statute, however they are always constrained by Parliaments
intention.

30 D. Nicol, Statutory Interpretation and Human Rights after Anderson, (2004) Public Law 274.
 Bibliography

Books

Dicey, Introduction to the Study of the Constitution, London 1959, p.39.

M. Elliot, The Principle of Parliamentary Sovereignty in a Legal, Constitutional and Political Perspective,
The Changing Constitution, 8th ed, p.56-58.
OCinneide, C, Human Rights and the UK Constitution, The Changing Constitution, 8th ed, p.92-3.
K. Syrett, The Foundations of Public Law, Hampshire, 2011, p.108
Alan TRS, The Sovereignty of Law (2013) p.142-3.

Cases

R (Factortame Ltd) v Secretary of State for Transport, ex parte Factortame Ltd (No.2) [1991] 1 AC 603.
Thoburn v Sunderland City Council [2003] QB 151.
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, 1 WLR 324.
R v Lord Chancelllor ex parte Witham [1998] QB 575.
R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262.
Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533.
R (Anderson) v Home Secretary [2001] UKHL 25.

Journals

M. Elliot United Kingdom: Parliamentary Sovereignty under Pressure. International Journal of

Constitutional Law 2.3 (2004): 545-554.
M. Elliott, Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified
primacy of EU law U.K. Const. L. Blog (23rd January 2014)

M. Elliot, The Principle of Parliamentary Sovereignty in a Legal, Constitutional and Political Perspective,
The Changing Constitution, 8th ed, p.56-58.
Alan TRS, The Limits of Parliamentary Sovereignty [1985] Public Law 614.

Mullen, T, Reflections on Jackson v Attorney General: questioning sovereignty. Legal Studies, 27: 125.
(2007).
D. Nicol, Statutory Interpretation and Human Rights after Anderson, (2004) Public Law 274.
H.W.R. Wade, Sovereignty: Revolution or Evolution? (1996) 112 LQR 568

Statutes

European Communities Act 1972 (c. 68) S3(1), S2(4).

Merchant Shipping Act 1988 (c.12).
Human Rights Act 1998 (c. 42).
 Rent Act 1977 (c. 42).
Crime Act 1997, s.29.