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Part A – sole question

‘Parliamentary sovereignty and the Rule of Law are inherently contradictory.

No system which is based on the former can truly respect the latter.’

Discuss the Principles of Parliamentary sovereignty and the rule of law in light

of the above statement.

The principle of Parliamentary Sovereignty is one that plays a piece of the UK

constitution and its premise is that Parliament is the supreme legal authority in the

UK. It can create and end laws and generally speaking, the courts cannot overrule

legislation in the form of statute. No Parliament can pass laws that future

Parliaments cannot change, also. It could be contended that Parliamentary

Sovereignty is one of the most important parts of the UK’s constitution 1. One could

make the point that statute or legislation made by Parliament is one of the few parts

of the constitution that are actually written down and somewhat codified, unlike the

majority of the contents of the UK constitution 2. Therefore, it is potentially a key part

of what makes the constitution.

In recent history, Parliament has passed laws that limit the application of its own

sovereignty. These laws reflect political developments both internally in the UK and

outside the nation. Some of these developments include:

• The UK entering into the European Union in 1973.

1
J., Goldsworthy, The Sovereignty of Parliament
2
A., Blick, Beyond Magna Carta: A Constitution for the United Kingdom, April 2015
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• The Human Rights Act 1998.

• The creation of a UK Supreme Court in 2009, which ended the House of

Lords function as the UK's final court of appeal.

• The devolution of power to bodies like the Welsh Assembly and the Scottish

Parliament.3

While they do appear to be significant, in theory these developments do not actually

undermine the principle of parliamentary sovereignty because could repeal any of

the laws implementing these changes, if they had the desire to.

The doctrine of Parliamentary sovereignty has been considered a threat to what is

known as the Rule of Law. That is, by A.V. Dicey’s definition, a “chameleon like

notion”4, it is indeed more difficult to define than the concept of Parliamentary

sovereignty, but Dicey essentially outlined a shell of three core principles;

• Nobody may be punished except for in a breach of the law;

• The same laws should apply to all people;

• Rights should be protected through the common law. 5

Dicey’s early writings suggest that he believed there was compatibility between

these two principles, they are both fundamental pieces of the UK constitution. He is

3
The fragility of parliamentary sovereignty, D., A., Green, Financial Times, May 2016
https://www.ft.com/content/b6763fd3-2a3b-348f-8a29-1c08a3c5f955
4
A., V., Dicey, The Law of the Constitution, 1885
5
A., V., Dicey, The Law of the Constitution, 1885
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quoted that “the sovereignty of Parliament favours the supremacy of the law.” 6 Legal

and historical minds have since discussed the principles in different lights, and

perhaps it could be contended that there is some friction between the two. A

constitutional historian and expert, Vernon Bogdanor, suggests that “it is clear that

there is a conflict between these two constitutional principles.” 7 Parliamentary

sovereignty by its own inherit description means that Parliament has the ability to

make and unmake any law without any real restriction. This suggests that Parliament

is not bound by the Rule of Law as everyone else is, and it can arbitrarily exercise its

powers. The core premise of the Rule of Law is to prevent the exercise of power

arbitrarily. It could be contended therefore that there is a direct contradiction between

these two core principles, and despite Dicey’s rebuttal to this argument being that

the will of the Parliament can only be expressed through an act, and that acts go

through long, drawn out, formal processes of deliberation which involve the monarch

and the two houses of Parliament, there have been instances where Parliament has

attempted to exercise executive power. The revolution and perhaps the Defence of

the Realm Act 19148 are clear examples of this. WI Jennings challenged Dicey with

this theory and suggested that the processes are not as intricate as he makes them

out to be, in fact, there have been occasions such as the Defence of the Realm Act

where Parliament have passed an influential act in one sitting or one day. Is this an

arbitrary power?9 The Defence of the Realm Act 1914 was passed in order to control

communications, the UK’s ports and subject civilians to the rule of military courts. It

was amended six times after its implementation in the first world war, eventually

6
A., V., Dicey, The Law of the Constitution, 1885
7
Brexit and our Unprotected Constitution, V., Bogdanor, King’s College London
8
Defence of the Realm Act 1914
9
C., P., Cotter, Constitutionalising Emergency Powers: The British Experience, 1953
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controlling things such as narcotics to censoring the press. It introduced a wide

range of changes in including rationing, prohibition, the introduction of British

Summer Time and the widening of police powers. “It was even used to ban bonfires,

whistling in the street and flying kites!”10 One of the key amendments to Defence of

the Realm Act allowed the Government to seize land and factories for the war effort

so that the UK could produce munitions and weapons needed for the war.

A case which has been said to be an example of how the doctrine of Parliamentary

Sovereignty can potentially undermine or violate the Rule of Law is Burma Oil Co v

Lord Advocate11. This case involved an oil company, Burma Oil, who made a claim

against the UK government, represented by the Lord Advocate. They were seeking

compensation destruction of their oil fields in the country of Burma by British armed

forces in the second world war. The UK government backed their actions by

describing them as necessary, as otherwise the oil fields would be taken by the

Japanese and this would be hugely damaging for the Allied forces during the war.

The issues at hand were whether the land being destroyed was within the limits of

the prerogative powers of the executive and indeed legal and whether the

government should pay compensation to the claimant for the damages. It was held in

the House of Lords that although the damage was within the powers of the executive

and therefore within the law, there should be compensation owed to the claimant as

it was compared to the requisition of property by the state. It’s deemed that acts of

requisition are done for the good of the public at the expense of the individual

proprietor. For that reason, three of five judges agreed that public funds should pay
10
Defence of the Realm Act 1914, Living Heritage, Parliament and the First World War
https://www.parliament.uk/about/living-heritage/transformingsociety/parliament-and-the-first-
world-war/legislation-and-acts-of-war/defence-of-the-realm-act-1914/
11
Burma Oil Company Ltd. v Lord Advocate [1965] AC 75
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to compensate Burma Oil Co. Linking to this last case, the Government introduced

the War Damage Act 196512 which contained a potentially controversial point in it;

the phrase started “whether before or after the passing of this Act…” 13 It essentially

meant that before 1965, the UK government was liable for any damages caused to

property but not after that date. The general definition of the Rule of Law means that

this shouldn’t really be acceptable; it goes against the principles of the doctrine. The

principle of Parliamentary sovereignty states that parliament can make or unmake

any rules as it sees fit, and this does in theory include retrospective laws. This case

became authority in common law as an example of a situation where Parliamentary

Sovereignty and the Rule of Law come into conflict with each other. In this instance,

it was the sovereignty of parliament which took priority and this is therefore one of

the key pieces of the argument that it does outrank the Rule of Law.

There are arguments against this to suggest that sovereignty is a construct of the

common law which judges can qualify to uphold the Rule of Law. Jackson v Attorney

General14 is the case often used to put forward this point; in this case, the courts

were asked to decide whether the Hunting Act 2004 15 and Parliament Act 194916

were indeed legal Acts of Parliament with regards to their procedural undertaking. It

was argued that they did not comply with the legislative requirements mentioned in

the Parliament Act 191117, and as a result were not valid. Under the Act, it was an

offence to hunt wild mammals with dogs except within limited conditions. The Bill

12
War Damage Act 1965
13
War Damage Act 1965
14
R (Jackson) v Attorney General [2005] UKHL 56
15
Hunting Act 2004
16
Parliament Act 1949
17
Parliament Act 1911
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was passed using a process under the Parliament Acts of 1911 and 1949, without

the approval of the House of Lords, this was of course hugely controversial.

The House of Lords upheld that the 1949 Act “had been sanctioned validly using the

1911 Act, and that the Hunting Act had been approved using the modified process” 18.

It was agreed that the courts, regardless of how an act of parliament was passed,

cannot challenge the validity of primary legislation or statute. However, it was “not an

Act of the sovereign Parliament, only the outcome of a process authorised by a

sovereign Parliament in the past”19.

There were obiter comments made by Lord Hope suggesting that Parliamentary

Sovereignty is not absolute and that the rule of law enforced by the courts is the

most influential factor in controlling the way in which the UK constitution operates.

Lord Steyn contended that even a sovereign Parliament cannot abolish judicial

review. Baroness Hale and Lord Steyn agreed that a Parliamentary majority ought to

be required20. Although these comments are indeed obiter, they are potentially

hugely powerful indicating a shift in power from Parliamentary Sovereignty to the

Rule of Law, and to suggest that the UK constitution is in somewhat of a transitional

period.

The Rule of Law is upheld through the powers of judicial interpretation, despite being

somewhat strained by the official ability of Parliament to exercise power arbitrarily.

The courts will make the assumption that statutes are written and operate within the

18
R (Jackson) v Attorney General [2005] UKHL 56
19
R (Jackson) v Attorney General [2005] UKHL 56
20
R (Jackson) v Attorney General [2005] UKHL 56
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Rule of Law without challenging the rights of the people. The courts are given

enough room to interpret legislation and restrict any arbitrary use of power and

confines any statute within the principles of the Rule of Law. However, Parliament

could potentially use arbitrary power in its wording of legislation. It could make it

clear enough to make alternative interpretation impossible and restrict the courts

from interpreting the legislation with positive human rights in their thought process.

They may also completely override or reverse court decisions, but, this happens very

rarely in practice since Parliament is deemed to act morally and even if it did not,

self-interest would prevent Parliament acting in an immoral manner because they still

have to gain the public’s approval in order to win their votes and their position 21.

Though in theory – and in practice – their concepts may somewhat conflict, the

Doctrine of Parliamentary Sovereignty mostly works alongside the Rule of Law.

Currently, it seems that Parliament still reigns supreme over the Rule of Law.

However, largely due to Jackson the importance of the Rule of Law is also being

distinguished by judiciary. Perhaps in the future, through imposing limitations on

Parliamentary Sovereignty, the Rule of Law will bear equal, if not more, importance

than Parliamentary Sovereignty as a fundamental principle of the British Constitution.

It can be concluded that although the Jackson case is incredibly influential in outlining

the confines of the principles of Parliamentary Sovereignty and the Rule of Law, it is

perhaps too early to disregard the former doctrine as it has been understood to date.

21
G., Allen, Proceedings of the Committee’s conference, A new Magna Carta? Held in Portcullis
House, December 2014
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Bibliography
Cases:
Burma Oil Company Ltd. v Lord Advocate [1965] AC 75
R (Jackson) v Attorney General [2005] UKHL 56

Statute:
Defence of the Realm Act 1914
Hunting Act 2004
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Parliament Act 1911

Parliament Act 1949
War Damage Act 1965

Books:
A., Blick, Beyond Magna Carta: A Constitution for the United Kingdom, April 2015
A., V., Dicey, The Law of the Constitution, 1885
C., P., Cotter, Constitutionalising Emergency Powers: The British Experience, 1953
J., Goldsworthy, The Sovereignty of Parliament

Journals and Essays:

Brexit and our Unprotected Constitution, V., Bogdanor, King’s College London
G., Allen, Proceedings of the Committee’s conference, A new Magna Carta? Held in
Portcullis House, December 2014

Websites:
Defence of the Realm Act 1914, Living Heritage, Parliament and the First World War
https://www.parliament.uk/about/living-
heritage/transformingsociety/parliament-and-the-first-world-war/legislation-
and-acts-of-war/defence-of-the-realm-act-1914/
The fragility of parliamentary sovereignty, D., A., Green, Financial Times, May 2016
https://www.ft.com/content/b6763fd3-2a3b-348f-8a29-1c08a3c5f955
4 . Critically assess the extent to which the Human Rights Act 1998 changed

the relationship between Parliament and the Executive.

The Human Rights Act 199822 is a piece of legislation that was created to protect all

citizens from having their rights taken away by the state in one way or another. The

rights listed in the statute are based upon the rights contained in the European

22
Human Rights Act 1998
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Convention on Human Rights, and it was a step to incorporate these into UK law.

Public authorities now have a legal obligation to uphold these human rights. The Act

“gives further effect” to freedoms and rights guaranteed under the European

Convention23. It means that Judges have to read and give effect to other laws in a

way which is compatible with these European Convention rights and that It is not

lawful for a public authority or body to act in a way which is incompatible with a

European Convention right. The Act contained several deemed important rights;

 The right to life.

 The prohibition of inhumane treatment and torture.

 Protection against slavery.

 The right to freedom and liberty.

 The right to a fair trial and no punishment without the law.

 Respect for privacy and family life, including the right to marry.

 Freedom of thought, belief and religious views.

 The right to free speech and peaceful protest.

 No discrimination.

 Protection of one’s property.

 The right to education.

 The right to free elections.24

The relationship between Parliament and the Executive has been governed by a

doctrine called the Separation of Powers. It is a matter of contention whether there

23
Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights, as amended) (ECHR)  
24
Human Rights Act 1998
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exists an absolute doctrine of separation in the UK constitution, but the UK system

essentially relies on checks and balances, so to speak, to prevent the abuse of

power. Montesquieu put forward his theory in 1748 that “there can be no liberty” 25

and that “everything would come to an end if the legislative, executive and judicial

powers of government were to be exercised by the same person or authority” 26.

There is the longstanding principle of Parliamentary sovereignty. It is a doctrine that

plays a key piece of the UK constitution and its premise is that Parliament is the

supreme legal authority in the UK. It can create and end laws and, the courts cannot

overrule legislation in the form of statute. No Parliament can pass laws that future

Parliaments cannot change, also.

It has been contended that there is the possibility of a perceived element of

inequality with regards to the separation of powers, and the Human Rights Act in

1998 ensured that the separation of powers needs to be more clearly defined within

the British constitution. Article 6 of the European Convention on Human Rights, in

particular, asserts the individual’s right to a fair trial, specifying that such a trial “must

take place before an independent and impartial tribunal”. 27

It is fair to say that the large extent of impact the Human Rights Act 1998 had was

upon the ties between the judiciary and parliament and between the judiciary and the

executive or government. Section 4 of the Act states that “If the court is satisfied that

the provision is incompatible with a Convention right, it may make a declaration of

25
Montesquieu, The Spirit of the Laws, 1748
26
Montesquieu, The Spirit of the Laws, 1748
27
Art. 6 European Convention on Human Rights
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that incompatibility.”28 Only the High Court od above may make a declaration under

S.4, and the Government does have a right to intervene prior to a declaration being

made. It is also important to point out that declaration of incompatibility does not

make the legislation invalid. Lord Steyn is quoted in Ghaidan v Godin-Mendoza that

“balance should be struck between the use of SS.3 and 4 which places more

emphasis on the former.”29 He goes on to say that;

“Interpretation under section 3(1) is the prime remedial remedy and that resort

to section 4 must always be an exceptional course. In practical effect there is

a strong rebuttable presumption in favour of an interpretation consistent with

Convention rights.”30

While most of the impact could be said to be upon the other links, there were some

changes to the dynamic of Parliament and the Executive; S.19 states that;

“(1) A Minister of the Crown in charge of a Bill in either House of Parliament

must, before Second Reading of the Bill—

(a) make a statement to the effect that in his view the provisions of

the Bill are compatible with the Convention rights (“a statement of

compatibility”); or

(b) make a statement to the effect that although he is unable to

make a statement of compatibility the government nevertheless wishes

the House to proceed with the Bill.”31

28
S(4) Human Rights Act 1998
29
Ghaidan v Godin-Mendoza [2004] UKHL 30
30
Ghaidan v Godin-Mendoza [2004] UKHL 30
31
S(19) Human Rights Act 1998
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The relationship between the legislature and the executive has been criticized for

being unduly close in many aspects, and some such as Brazier suggests that

implementations such as the changes to the role of the Lord Chancellor were “a

smokescreen designed to draw attention to the fact that there are many other areas

where the British constitution implicitly allows for overlap” 32. So, to create some clear

checks and balances between the two perhaps was important, and while the Human

Rights Act did not apply many of these, comparable to the other institutional

relationships, it has started the ball rolling. Section 10 also implemented the power to

take remedial action. This means that

“if a provision of legislation has been declared under section 4 to be

incompatible with a Convention right or it appears to a Minister of the Crown

or Her Majesty in Council that, having regard to a finding of the European

Court of Human Rights made after the coming into force of this section in

proceedings against the United Kingdom, a provision of legislation is

incompatible with an obligation of the United Kingdom arising from the

Convention, then he may by order make such amendments to the legislation

as he considers necessary to remove the incompatibility.” 33

This is a clear separation of powers being implemented to put a check and balance

on parliament by the executive, which until the act had certainly worked entwine and

parliament had been considered too powerful in many ways, including its doctrine of

sovereignty. However, it is clear that target any changes to separation of powers is

aimed at the links between the judiciary and the legislature and the judiciary and the

32
R. Brazier, Constitutional Reform: Reshaping the British Political System, 3rd ed. (Oxford 2008), Ch.
7.
33
S(10) Human Rights Act 1998
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executive, even if people still contest that Parliament being able to make and

unmake laws as it seems fit, could potentially be used arbitrarily, section 6 arguably

puts a tighter leash on the judiciary’s abilities. The HRA to some extent aimed to

avoid open conflict with parliamentary sovereignty, and a new outline of what has

been known as statutory interpretation was introduced in s3(1) in that “ so far as it is

possible legislation must be read and given effect in a way which is compatible with

convention rights.”34 The executive has to be taken into account and referred to

when there is clear conflict; courts can also put secondary legislation to the side. It is

interesting to see that the Human Rights Act has perhaps induced a rise in the role

of the judiciary alongside a slow increase in the power of the executive, both at the

expense of parliament’s power and while this may seem positive due to parliament’s

perceived strong sense of sovereignty and power, it also means that the power is

shifting from being in the hands of the elected parliament to the unelected judiciary 35.

Some would consider this dangerous.

Section 5 of the Human Rights Act states that the Executive has the ability to notice,

and to join the proceedings, when a court is considering making a supposed

declaration of incompatibility. This enables a Minister to provide the court with

information which may be relevant to the issue which is being contested. Section 5

has also given the Crown the power to intervene a declaration under Section 4, and

as a result this partially limits the power of the judiciary, but as it can be seen, the all

elusive link between the Executive and Parliament is seldom touched.

If one takes into consideration the Human Rights Acts as a whole, it could be

concluded that it has had a favourable change to the UK law and constitutional

34
S(3)(1) Human Rights Act 1998
35
M., Howard, Column 38, November 2009
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system, increasing both the role of the courts in preserving rights and the

transparency of the statute and legislation created and implemented by Parliament.

Regardless, there is still room for further improvement and a chance further the

extent of human rights through the HRA, which must be done through the

cooperation of all the core powers in the UK, working entwine and supporting each

other, whilst keeping each down to earth and ensuring powers are not used

arbitrarily. Perhaps there should be more ties on the Legislature and perhaps even

the judiciary, but the system in its current form, past the unparliamentary roles such

as the Lord Chancellor, works efficiently with understanding of each other. The

judiciary gives effect and interprets legislation and does so in a more controlled way

now, and one would hope any outstanding arbitrary powers which still remain would

not be toyed with as it may mean the end of the user’s political career. The Executive

stands to keep parliament in check still, but this is where the Human Rights Act has

not done as much as people might have hoped.

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Bibliography

Cases:
Ghaidan v Godin-Mendoza [2004] UKHL 30

Statute:
Art. 6 European Convention on Human Rights
Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights, as amended) (ECHR
S(3)(1) Human Rights Act 1998
S(4) Human Rights Act 1998
S(10) Human Rights Act 1998
S(19) Human Rights Act 1998

Books:
R. Brazier, Constitutional Reform: Reshaping the British Political System, 3rd ed.
(Oxford 2008)
Montesquieu, The Spirit of the Laws, 1748

Journals and Essays:

M., Howard, Column 38, November 2009