DENNING LAW SCHOOL

SAMPLE REFERENCE ANSWER

NOT TO BE REPRODUCED

Sample Question

Discuss the extent to which Dicey’s account of parliamentary sovereignty has become increasingly difficult to
reconcile with constitutional reality in the UK.

Sample Answer

The concept of Parliamentary Supremacy is one of the unique features of the UK Constitution. The concept
of PS is attributed to veteran British author, AV Dicey, who wrote about PS in his book published in 1888.
However, since then, the UK’s constitution has been subjected to multiple reforms, particularly since
1970s, and as such, the concept becomes difficult to reconcile and be reflected in the constitutional reality
of the UK.

Due to lack of a codified and entrenched constitution in the UK, there exist the concept of ultimate
supremacy of the Parliament. The concept was explained by Dicey by stating that the P has absolutely
unlimited law makin powers in the UK. There are no constraints or limits to the legislative powers of the
P. It is often stated that the P can even order killing of blue eyed babies (Ivor Jennings). The P unlimited
powers allows the P to even enact retrospective legislations which will be upheld by the courts (example,
Burmah Oil v. Lord Advocate (1965)). Moreover, the concept of PS entails that the Acts of P cannot be
challenged by the courts on any grounds whatsoever. This Diceyan concept of PS was not only limited to
constitutional observers, but was also seen in practice in the courts. In Madzimbamuto (1968), Lord Reid
famously stated that even if the P enacts a law which the courts believe it to be “unconstitutional” cannot
be challenged by the courts and will be regarded as valid.

While the concept of PS exists due to uncodified constitution, in modern day reality, the legislative powers
of the P does not seem to be as broad as it appears in theory. P’s unlimited / sovereign powers were
significantly curtailed when the UK joined the EU. The EU is a supranational international organization
which claims to be superior over its member states. Under EU law, the courts of the member states are
required to follow the EU law, rather than their own domestic laws wherever, there is a conflict between
the domestic and the EU law (Van Gen den Loos). Similarly, the EU law entailed that the members of the
EU cannot make a law which is inconsistent with the EU Law (Costa v. ENEL).

UK joined the EU in 1972 and enacted ECA 1972 which led to a constitutional dilemma for the courts as,
for the courts, up till now, the domestic laws made by the P were supreme. The courts therefore devised
the concept of harmonious interpretation to reconcile the conflict in the EU Laws and the laws enacted
by the P. The harmonious interpretation approach entailed that the courts will have presume that the P
enacted the law in accordance with the EU law and that the courts will always interpret the act of
parliament in such a way that it remains harmonious, rather than in conflict, with the EU law (Macarthys
v. Smith). The reflection of the harmonious interpretation can be seen in the case of Garland v. British
Railways – where the courts interpreted the term “pay” in the domestic law in such a manner that it
became consistent with the EU law. Similarly, in Pickstone v. Freemans, the courts held that the
harmonious interpretation even allow the courts to fill in the legislative gaps in order to make Act of P
consistent with the EU Law. While harmonious interpretation was inclined towards upholding EU law
supremacy, it nonetheless was not completely contradicting the concept of PS. However, the major threat
to PS came from the case of Factortame case and Equal Opportunities Commission (EOC) Case, where the
courts did not follow the Act of P, but rather followed the EU Law since the contradiction between the EU

1
 DENNING LAW SCHOOL
SAMPLE REFERENCE ANSWER
NOT TO BE REPRODUCED

law and the Act of P was so severe that no level of harmonious interpretation would have reconciled the
conflict.

Moreover, along with EU membership, the modern UK constitution also has a major influence of the
enactment of HRA. HRA ’98 allows the courts to issue DOI on statutes which violate human rights. this is
a significant development as the courts now have a power, which they previously didn’t. The broad
powers of the courts following HRA’98 is considered to be such that it has given birth to a new British
Constitution (Bogdanor).

While HRA and the EU membership are allowing courts to challenge Acts of Parliament, it can be stated
that both are voluntary actions of the P and hence, are not a threat to the concept of PS.

In the modern constitutional reality, the courts have given more importance to the concept of rule of law,
which requires that no one should have broad and uncontrolled powers. The courts changing stance is
evident from the obiter statement of Lord Hope in Jackson v AG where he stated “PS is no longer, if it ever
was absolute. The rule of law, as enforced by the courts, is the ultimate controlling factor on which our
constitution is based”. This is a significant shift in the courts position since 1960s, where the courts would
never challenge an Act of Parliament (see Madzimbamuto above).

Moreover, since Dicey’s era, the constitution of UK has developed further, in terms of development of
conventions which limits the P’s powers. By way of example, it would be considered a violation of
constitutional convention if the P makes a law today which is inconsistent with a referendum decision. In
modern days, be it Brexit or Scottish Independence, the P has always upheld the outcome of the
referendum.

Similarly, since the devolutions arrangements of 1998, it is considered that the P does not have
competence over matters which have been devolved to Scotland, Wales and N. Ireland.

The above-mentioned examples show that the Dicey’s account of PS is becoming increasingly difficult to
reconcile as we cannot ignore the constitutional reality of today, in which the conventions play a
significant role. However, the concept of PS is a legal concept, and as such, the P’s unlimited powers, as a
matter of law have not been curtailed / limited. This is also evident from Neuberger’s lecture where he
stated “Unlike every other European country, we have no written constitution and we have parliamentary
sovereignty. Indeed, it may be said with considerable force that we have no constitution as such at all,
merely constitutional conventions, and that it is as a consequence of this that we have parliamentary
sovereignty” (Lord Neuberger, 2014). Hence, the Dicey’s account of PS will remain a part of the UK’s
constitution, unless the constitutional conventions limiting the P’s powers are entrenched into a codified
constitution.