parliamentary sovereignty

Question 1

PS intro

Answer 1

traditional definition - contemporary relevance - authority to contemporary relevance - thesis

💼 INTRODUCTION (Define and Establish Importance)

• Definition (Dicey’s Classical View):A.V. Dicey defines Parliamentary Sovereignty as the doctrine that Parliament has the right to make or unmake any law whatever and no person or body is recognized by law as having the right to override or set aside the legislation of Parliament.
• Contemporary Relevance:This doctrine is foundational to the UK’s unwritten constitution and reflects the principle of legislative supremacy. However, it faces increasing tension with modern constitutional developments—e.g., EU membership, devolution, Human Rights Act 1998.
• Contested by Aileen Avanagh - constitutional pluralism and recently lady chief justice Sue Carr - for judicial independence

Question 2

PS Conclusion

Answer 2

✅ CONCLUSION

• Dicey’s doctrine retains formal strength, but its practical reality is eroded by external influences (and evolving judicial attitudes
• more practical
• There is now a ‘dialogue’ model of constitutionalism—sovereignty coexists with legality, accountability, and human rights norms.
• “Parliament is no longer omnipotent in practice — it legislates within a web of constitutional expectations.” - “The UK constitution is no longer a one-voice, monolithic system, but a dialogic, multi-institutional conversation.” – Kavanagh — Rather than adopting a model of judicial supremacy or legislative supremacy, the Human Rights Act introduces a model of constitutional dialogue, where courts and Parliament each have a role to play in safeguarding rights.

Question 3

PS traditional dicey

Answer 3

3 tenets - pickin v british railway board - dicey quote - jennings illusory idealistic

• Core Tenets:
  
  1. Legislative Supremacy: Parliament can legislate on any matter.
  2. No Entrenchment: Parliament cannot bind future Parliaments.
  3. No Judicial Review: No court can challenge an Act’s validity.
• Pickin v British Railways Board:This traditional doctrine was affirmed, where the courts refused to look behind the validity of an Act of Parliament, reinforcing that Parliament’s enacted words must be accepted without judicial scrutiny of its internal processes.
• Key Quote:> “The principle of Parliamentary Sovereignty means neither more nor less than this, namely, that Parliament… has… the right to make or unmake any law whatever.” — DiceyScholars like Sir Ivor Jennings criticised Dicey’s model as overly rigid and idealised illusory, arguing instead that parliamentary sovereignty operates within a political and practical context, often influenced by institutional realities and conventions.

Question 4

PS evolution overview

Answer 4

A. under EU law (ECA s.2, Factortame no. 2, judicial interpretation)
B. post brexit judicial reform (formal vs legal, miller 1 and 2, conditional supremacy)
C. other channels of legal pluralism (HRA s.3 and s.4, ghaidan, scottish gender recognition bill)
D. authority support on dialogue model (jackson 2005, hope steyn, craig and allan, lady chief justice)
E. contemporary application (ellen street estates v ministry of health, burmah oil v lord advocate, thoburn)

Question 5

PS under EU law

Answer 5

📌 A. EU Membership (Past Impact)

1. practical subordination of sovereignty - Parliamentary sovereignty was qualified by EU law obligations.
   - ECA 1972 s.2: subordinated UK law to EU law
   - Factortame [No.2]
   
   • Merchant Shipping Act was overridden due to conflict with EU law.
   • established ECA s.2 & Legal sovereignty yielded & disapplied UK legislation
2. Judicial Interpretation of Parliamentary Intent during Brexit
   - Courts began using statutory interpretation duty to presume compliance with EU law
   - Parliament no longer seen as legislating in isolation—its intent filtered through EU obligations.

Question 6

PS legal pluralism except judicial

Answer 6

📌 C. Practical Sovereignty through other channels (Human Rights Act 1998 & Devolution)

There are areas where legal pluralism—multiple sources of authority—coexist, and sovereignty is not the sole kingmaker.

• HRA section frames it as a soft limitation, not a repeal of sovereignty.
• s.3 & s.4 HRA: Courts are allowed interpret legislation compatibly with ECHR “so far as possible”, but cannot strike it down.
• Example Case: Ghaidan v Godin-Mendoza [2004] — courts stretched meaning of a statute to comply with ECHR rights.
• *Devolution

Legally, Westminster has the final say due to parliamentary sovereignty and can block devolved legislation (like it did using s.35 of the Scotland Act).
But when it actually used that power to block Scotland’s Gender Recognition Reform Bill, it faced massive political backlash—from Scottish politicians, the public, and even some UK MPs.
This shows that while Westminster retains legal supremacy, its practical ability to exercise that supremacy is constrained by political realities and public legitimacy—especially in devolved contexts.
The April 2025 Supreme Court ruling on the Equality Act 2010 (saying “woman” = biological female) gave a legal basis to the UK Government’s actions, shifting the dispute from political to legal grounds and forcing the Scottish Government to halt the Bill.
So yes—Westminster won legally, but the episode exposed limits on its power in practice due to devolution and political fallout.

section emphasizes judicial review and reserved matters, showing Parliament remains supreme — good nuance!*
- Scotland Act 1998 s.28(8): Expresses intent not to legislate over devolved matters without consent.

> Convention only, reaffirmed in Miller No.1: not legally binding.

A contemporary example of devolved legislative tension is the UK Government’s use of s.35 of the Scotland Act 1998 to block the Gender Recognition Reform (Scotland) Bill 2022, passed by the Scottish Parliament.

This was the first-ever use of the power, impact on UK-wide equality law.

conflicted with the Equality Act 2010, a reserved matter,

constitutional overreach → political consent vs legal finality (westminster’s word)

Question 6

PS post-brexit judicial

Answer 6

📌 B. Post-Brexit Position of the Judiciary

• Formal sovereignty restored — European Union (Withdrawal) Act 2018 & 2020
• Legal sovereignty weakened — Parliament may legislate contrary to EU principles, but courts now actively enforce constitutional principles
• Example
  
  • Miller (No.1): the Supreme Court held that only Parliament could authorise the triggering of Article 50, reinforcing that the executive cannot alter domestic rights without parliamentary approval — a key assertion of parliamentary accountability and judicial oversight.
  • Miller (No.2) - the Court ruled that the Prime Minister’s advice to prorogue Parliament was unlawful, affirming the courts’ role in protecting constitutional principles like the rule of law and legislative supremacy, even against the executive.
  • Together, Miller (No.1) and Miller (No.2) confirm that formal parliamentary sovereignty remains intact, but its legal operation is now mediated through judicial enforcement of core constitutional norms.
• Shift from absolute to conditional supremacy.

Question 7

PS evolution contemporary

Answer 7

• Entrenchment Practices but might change:
  
  • Ellen Street Estates v Minister of Health - orthodox rule
  • In Burmah Oil v Lord Advocate, the House of Lords awarded compensation for wartime destruction of property, but Parliament swiftly reversed the decision with retroactive legislation (War Damage Act 1965), illustrating both the supremacy and political fragility of judicial rulings when faced with legislative override.
  • In Thoburn, required expess repeal → undermines Diceyan simplicity → Rise of Constitutional Principles
• Doctrine: Dicey Evolving

Question 8

PS authority thoughts

Answer 8

📌 D. A commentary on Modified Sovereignty & RoL

• dialogue model of constitutionalism
  
  1. Jackson [2005] Lord Steyn:> “The rule of law enforced by the courts is the ultimate controlling factor.”
  2. Lord Hope echoed this shift, observing: “Parliamentary sovereignty is no longer, if it ever was, absolute.” This hints that courts no longer see their role as passive enforcers of sovereignty—but as guardians of constitutional principles.
  3. Legal theorists such as Craig and Allan argue that the rise of constitutional principles like the rule of law and legality have placed substantive constraints on Parliament’s authority.Craig and Allan’s views reflect a shift from Dicey’s ‘command model’ of sovereignty to a dialogic, pluralist constitution.Parliament is still sovereign in law,courts have not yet invalidated an Act of Parliament,but that sovereignty now functions within a culture of constitutional justification — courts engage in reasoned dialogue, not outright disobedience.
  4. recently affirmed — “The independent judiciary — the cornerstone of the rule of law — is an integral part of what the UK has to offer to the world.” - Lady Chief Justice recently