Essay 1 (Question 1)

Word Count: 1478

When considering how the UK Constitution operates, the constitutional doctrine

of Parliamentary Sovereignty needs to be recognised as exerting a significant influence.
Over time, the doctrine has been established as the most fundamental principle guiding
the operation of the state and emphasises Parliament as the supreme body within the
constitution. However, Parliamentary Sovereignty has increasingly been criticised on
historical and philosophical grounds with a number of contemporary academic debates
arguing for the concept to be deemed outdated and dangerous. To better understand
these critiques toward Parliamentary Sovereignty, it will be important to begin by
discussing the origins of Parliamentary Sovereignty and its evolution within the scope of
constitutional law.
Several political theorists present differing views regarding the emergence of
Parliamentary Sovereignty. According to Sir Ivor Jennings, the doctrine had been a
result of the evolution of the UK Constitution, and Parliament has, over time, become
established as sovereign through recognition within common law.1 Contrastingly,
H.W.R. Wade believed that the birth of Parliamentary Sovereignty derived from a
combination of the Bill of Rights 1688/1689 and the Glorious Revolution of 1688.2
Ultimately, it was only later with the domination of British constitutional law by academic
A.V. Dicey in the late 19th century that the doctrine took hold. The most commonly
applied definition of parliamentary sovereignty comes from Dicey, who suggested three
key rules; (1) Parliament can make or unmake any law, (2) Parliament cannot bind its
successors, and (3) no one can question Parliament’s laws.3 More specifically, Dicey
notes “the principle of parliamentary sovereignty means neither more nor less than this,
namely, that parliament thus defined has, under the English constitution, the right to
make or unmake any law whatever; and, further, that no person or body is recognised
by the law of England as having the right to override or set aside the legislation of

1
Jennings, I., 1959, The Law and the Constitution.
2
Stanton, J., Prescott, C., 2018, Public Law.
3
Dicey, A.V., 1959, An Introduction to the Study of the Law of the Constitution.

1
Parliament.”4 In its entirety, Dicey’s definition can be interpreted as having conceived
that Parliament entertains absolute sovereignty. William Blackstone further goes on to
describe this concept as “absolute despotic power”, or a legal tyranny of sorts that can,
in short, “do everything that is not naturally impossible.”5 However, Dicey makes it clear
that Parliament is subject to internal and external limits when legislating6 and addresses
several negative features tied to the supremacy of Parliament including the
government’s immunity from challenges to its decisions. In Blackburn v Attorney-
General [1971], Lord Denning acknowledges the factual limits to legal sovereignty by
suggesting that “legal theory must give way to practical politics.”7 Ultimately, even those
notoriously in favour of Parliamentary Sovereignty recognise its flaws. According to
Dicey, Parliament legally has the power to act however it pleases. Yet, Dicey also
recognises that in practicality there are things that parliament cannot and will not do. As
per Dicey’s orthodox theory, there are no limits for Parliament, which is seen as a
negative limb of the doctrine for Dicey. Thus, it is not unreasonable to suggest that
Parliamentary Sovereignty is a dangerous concept, as it appears that even Dicey, the
doctrine’s biggest supporter, was well aware of the conceptual difficulties of an
omnicompetent sovereign.
On one side of the political debate, scholars such as Professor Adam Thomkins
argue that the absolute supremacy of the UK Parliament as understood by Dicey
remains unqualified by recent constitutional reforms.8 On the other side of the debate
are those constitutional writers whose view is that the sovereignty of parliament is open
to revision by the courts in circumstances where a court has to reconcile contradictory
statutory provisions.9 Others who share this view go on to note there is no reason why
Parliament, merely because of its very existence, must be regarded as ‘legally
omnipotent’.10 The scope of this debate had been additionally considered by the
Appellate Committee of the House of Lords in the case of R (Jackson) v Attorney
General [2005]. The case overall challenged the very substance of Parliamentary
4
Dicey, A.V., 1959, An Introduction to the Study of the Law of the Constitution.
5
Blackstone, W., 1765-1769, Commentaries on the Laws of England.
6
Dicey, A.V., 1959, An Introduction to the Study of the Law of the Constitution.
7
Blackburn v Attorney-General [1971] 2 All ER.
8
Thomkins, A., 2005, Our Republican Constitution.
9
Allan, T.R.S., 1985, The Limits of Parliamentary Sovereignty.
10
Craig, P., 1991, The Sovereignty of the United Kingdom Parliament After Factortame.

2
Sovereignty while reaffirming the doctrine as a fundamental underpinning of UK
democracy.11 Other challenges to Parliamentary Sovereignty arose with the introduction
of the European Communities Act (ECA) 1972 and the Human Rights Act (HRA) 1998;
both of which have had a fundamental impact on shaping Dicey’s definition of the
doctrine. In 1972, the UK Parliament passed the ECA and thereby agreed to implement
and enforce all laws of the European Union, in turn imposing limitations on
Parliamentary Sovereignty and arguably eroding the doctrine. With regard to the HRA’s
impact on Parliamentary Sovereignty, Lord Hoffmann in R v Secretary of State for the
Home Department, ex p Simms [1999] stated that “the Human Rights Act 1998 will not
detract from this power.”12 In short, if Parliamentary Sovereignty chooses to do so, it can
legislate contrary to fundamental principles of human rights. Here, a clear example is
provided of how the concept of Parliamentary Sovereignty in its traditional form is more
likely to act as a hindrance to further constitutional developments aiming to produce a
representative democracy. Aside from the ECA and HRA, Parliament has passed a
number of laws over the years that limit the application of Parliamentary Sovereignty
and further reflect political developments both within and outside the UK. The
Constitutional Reform Act (CRA) 2005 brought about changes to the way the House of
Lords was made up, further influencing a clear separation of powers between the
legislative and judicial branches of government.13 Following this, changes were made to
the office of the Lord Chancellor and a UK Supreme Court was created, thereby
severing the link between the House of Lords/Appeal Committee and Parliament. 14
Each of these changes ultimately strengthened the separation of powers and further
brought Dicey’s doctrine of Parliamentary Sovereignty into question. In the end,
Parliamentary Sovereignty is a constitutional concept that requires rethinking.
Parliamentary Sovereignty today refers to the present Parliament’s right to make
or repeal any law, and the inability to prevent a future Parliament’s right from doing the
same. Lord Steyn further defines this in the Jackson case and notes how “it is not
unthinkable that circumstances could arise where courts may have to qualify a principle

11
R (Jackson) v Attorney General [2005] UKHL 56.
12
R v Secretary of State for the Home Department, ex parte Simms [1999] 3 WLR 328.
13
Stanton, J., Prescott, C., 2018, Public Law.
14
Smartt, U., 2017, Optimize Public Law.

3
established on a different hypothesis of constitutionalism.”15 Steyn also mentions here
how Parliamentary Sovereignty “is a construct of the common law. The judges created
this principle.”16 As the law by way of Judicial Review has developed, courts can now
apply and enforce legal limits on the supremacy of Parliament. However, it should be
noted that courts do not make law, but rather interpret and apply the laws made by
Parliament. The scope of statutory interpretation demonstrates fundamental respect for
Parliament and its legislative role. Yet, no matter how well Parliament legislates, some
judiciary interpretation is needed. In short, as long as the House of Commons remains a
democratically elected assembly, the courts have a duty to apply Parliament’s
legislation as demonstrated in AXA General Insurance Ltd and Others v Lord Advocate
and Others [2012]. Lord Hope’s judgement here stated that decisions and Acts made by
the Scottish Parliament may be judicially reviewable.17 Overall, the respect of the UK
courts for the supremacy of Parliament is integral to upholding the Rule of Law.
However, there have been various challenges to this principle over the years leading
some academics to suggest that Parliamentary Sovereignty is out of place in our
modern UK Constitution.18
In the end, the doctrine of parliamentary sovereignty in its traditional form is
increasingly under pressure. However, despite being an outdated concept that is
potentially dangerous to modern democracy, there is realistically no easy solution.
Some call for a constitutional referendum to subvert the concept of Parliamentary
Sovereignty while others recognise the only way to pursue these types of changes will
require another political revolution among the judiciary, similar to the Glorious
Revolution. Unless Parliament undergoes a major constitutional reform in the near
future, the doctrine of Parliamentary Sovereignty will continue to sit uncomfortably in a
modern constitutional landscape for years to come.

Essay 2 (Question 4)

15
R (Jackson) v Attorney General [2005] UKHL 56.
16
Ibid.
17
AXA General Insurance Ltd and Others v Lord Advocate and Others [2012] 1 AC 868.
18
Stanton, J., Prescott, C., 2018, Public Law.

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Word Count: 1221

Increased protection for fundamental human rights has been one of the most
important developments in UK law for generations. Although the Human Rights Act
(HRA) 1998 is now well established, it is important to recognise its impact on shaping
the legal system within the UK. For many countries, a statement of individual rights is
codified in law and further enforced by the courts. Since the UK has no singular codified
constitution, protection of fundamental human rights occurs in a number of ways such
as through the HRA, various legislations, courts, and Parliament. The introduction of the
Act ultimately allowed courts to adopt a rights-friendly interpretation of legislation while
preserving the legislative sovereignty of the UK Parliament. Although an overall positive
development for UK law, it is not a perfect piece of legislation and in some ways has
failed to respect the constitutional and democratic values of the UK.
The HRA was passed in 1998 and further came fully into force in 2000. Over the
last couple of decades, it has acted as the central system of rights protection in the UK.
It introduced the European Convention on Human Rights (ECHR) into British law and
has generally had a positive impact on the enforcement and accessibility of rights in the
UK. Individuals who wish to bring cases where they believe their human rights have
been violated are now able to do so through the British courts and directly against public
authority, rather than applicants having to take their cases to Strasbourg. Additionally,
the Act makes it unlawful for any public authority to act in such a way that is
incompatible with a right under the Convention.19 A person can only bring a case
against a public authority if they can be classed as the ‘victim’ in a specific circumstance
which has become an integral part of Judicial Review. Moreover, the statute has helped
to further shape civil liberties and laws as well as the duties of Ministers and MPs.
Rights are now subject to a limited amount of interference by the state in certain legally
defined circumstances that benefits society as a whole rather than just the individual.
Section 3(1) of the HRA states that “so far as it is possible to do so, primary
legislation and subordinate legislation must be read and given effect in a way which is
compatible with the Convention rights.”20 Under this section, the court must interpret the
19
Human Rights Act 1998, Section 6(1).
20
Human Rights Act 1998, Section 3(1).

5
UK statute in a way compatible with the Convention rights if able to do so. The courts
have held that this requires more than ordinary statutory interpretation. If considered
necessary, the courts will read words into a statute to ensure compliance with the
Convention.21 In Ghaidan v Godin-Mendoza (2004), the House of Lords held that even if
the ordinary meaning of a statute is clear, a court may distort its language or read in
additional words in order to achieve a meaning that is compatible with the Convention. 22
The courts are therefore required to take a purposive approach to the interpretation of
legislation. However, there should be a distinction between legitimate interpretation and
effectively undertaking the redrafting of legislation. This has been recognised by the
courts in both W and B (2002) – where the House of Lords concluded that the Court of
Appeal’s interpretation of the Children Act 1989 could not be upheld23 – and in R v DPP,
ex p Kebeline and Others (2000) – where Lord Hope referred to areas where the
judiciary must defer to the ‘considered opinion of the elected body.’24 Overall, it should
be noted that the requirement imposed in Section 3 is a clear departure from the
traditional rules of statutory interpretation. Additionally, it recognises the court potentially
ignoring what Parliament intends for reconciling the domestic statute with the
Convention right. Although Section 3 requires the court to interpret statutes in a way
which is compatible with the Convention, there may be situations where the wording of
the statute is so clear and unambiguous that it cannot be interpreted in any way other
than in conflict with a Convention right. In such cases, the High Court and superior
courts may make a ‘declaration of incompatibility’ under Section 4.25
While the scope of legal rights protection in the UK is relatively strong, it is also
limited. On one hand, the UK’s constitutional culture values civil liberties and there is a
formal embrace of human rights values within government. On the other hand, little
political consensus exists as to the actual substance of human rights guarantees and
the existing framework of UK legal rights protection based on the HRA is vulnerable to
political attack. Moreover, UK governments have increasingly introduced legislation that
dilutes rights protection, especially in areas like national security, immigration, and
21
R v A (No.2) [2001] UKHL 25; [2002] 1 AC 45.
22
Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30.
23
W and B v H (Child Abduction: Surrogacy) [2002] 1 FLR 1008.
24
R v DPP, ex parte Kebeline and Others [2000] 2 AC 326.
25
Human Rights Act 1998, Section 4.

6
socio-economic entitlements. In short, the HRA focuses on a core set of civil and
political rights while other types of human rights, particularly socio-economic rights, lack
substantive legal protection, with the majority of the UK Supreme Court confirming in R
(SG) v Secretary of State for Work and Pensions (2015) that unincorporated human
rights treaty instruments do not form part of UK law.26 In many areas, such as
immigration control, national security, freedom of speech, the treatment of vulnerable
groups, and more, UK law has been the frequent subject of criticism from human rights
expert committees at the UN and the Council of Europe. Furthermore, the HRA has
increasingly faced political attacks over the last few years from conservative forces.
Several leading conservative politicians have expressed concerns that the HRA extends
judicial power at the expense of political decision-making.27 In turn, there has been
pushback against many of these claims. NGOs and academic commentators have
defended the HRA, arguing that its interpretive approach allows the Court to maintain
the integrity of its case-law by ensuring that it reflects contemporary moral and social
understandings of the core content of human rights. Despite this, critics of the HRA
continue to argue that radical reform is needed. However, political obstacles lie in the
way of any such reform. Any attempt to repeal the HRA is likely to generate substantial
legal uncertainty and trigger considerable political push-back within the UK. This has not
stopped the international climate from growing more hostile to human rights values,
making the future of human rights protection in the UK uncertain.
Taking everything into consideration, the HRA impacts UK law by increasing both
the role of the courts in preserving rights and the transparency of the legislation enacted
by Parliament. Nevertheless, there is always room for improvement, and human rights
laws and concepts remain vulnerable to political attack. Government should consider
whether there is a need for additional mechanisms to make the enforcement of rights
more accessible, therefore better respecting the constitutional and democratic values of
the UK.

26
R (on the application of SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16.
27
Pinto-Duschinksy, M., 2011, Making Human Rights Compatible with Parliamentary Democracy in the UK.