Parliamentary limits on Parliament’s power to passParliamentary limits on Parliament’s power to pass

Parliamentary Sovereignty refers to the idea that parliament
has unlimited legislative competence. This means that there are no legal limits
on Parliament’s power to pass laws and the courts do not have the power to overrule
or set aside Parliament’s law. Sir Ivor Jennings (1959) once famously said: “Parliament
can legislate to ban smoking on the streets of Paris, Parliament can legally
make a man into a woman.” This essay will explore the sovereignty of Parliament
whilst critically discussing the extent of Albert Venn Dicey’s traditional
account of it, and whether it remains accurate. It will also be closely
referring to the cases R (on the application of Evans) v Attorney General1 and
R (On the Application of Miller) v Secretary of the State for Exiting the
European Union2,
as well as other suitable cases, such as Burmah Oil v Lord Advocate3
and others. A.V Dicey emphasises Parliament’s
sovereignty by referring to it as the “keystone” of the constitution. He stated
that the doctrine is nothing less than “the central principle” of the system, “on
which the rest depends”. His definition of Parliamentary Sovereignty states
that “the principle of Parliamentary Sovereignty means…that Parliament…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 a right to override or set aside the legislation of Parliament.”4  The features of Dicey’s Orthodoxy
are as follows; Acts of Parliament cannot be declared illegal, an Act of
Parliament could override any Pronouncement of the Courts, Parliament may
surrender the sovereignty of the current Parliament, and Parliament cannot bind
its successors. In R v Jordan5,
the defendant argued that the Race Relations Act was unlawful as it diminished
his right to freedom of speech, however this failed as the judges were not
willing to question the validity of the Act. further confirm A.V Dicey’s key
feature that Acts of Parliament cannot be declared illegal. However, a recent
example of this is highlighted in Jackson v Attorney General6,
in which there was a disagreement over the validity of the Hunting Act7. The
applicant claimed the Hunting Act was made unlawfully as it was not passed by
the House of Lords. He also claimed that the Parliament Act8 was
unlawfully passed. The courts held that the Hunting Act was lawful, and so was
the Parliament Act, as although courts may judge whether a statute is valid by
the process of how it was passed, the Hunting Act was passed lawfully and
therefore was valid. Parliament can be bound by changing the required form
imposed by their forerunners. Whilst the 1911 Act was passed by the regular
parliamentary procedure (which was with a threat from the King and the government
to fill the House of Lords with more compliant peers), the 1949 act was passed
using the method comprised in the 1911 Act. Parliament’s ability to use the 1911
Act to amend the 1949 Act was questioned in the light of the Hunting Act. This instantly
represented a challenge to parliamentary supremacy. The house of Lords
concluded that there are no limits on the type of laws Parliament have the
power to pass, using Parliament Acts, except where Parliament limits itself by
limitations in the legislation made. Although A.V. Dicey’s account of the supremacy
of Parliament remains the “general principle of our constitution. It is a construct
of common law”9,
it can now be viewed to be outdated and no longer relevant in the UK’s modern
society. It could be argued that the current trend towards devolution serves to
challenge Parliament’s supreme position, as devolution limits Parliaments jurisdiction,
as opposed to it’s authority and power. Furthermore, an example of Dicey’s
idea that Parliament has the power to override any Pronouncement of the Courts
is highlighted in Burmah Oil v Lord Advocate10,
whereby the claimant’s fields were destroyed during the Second World War. The court
concluded that the UK government is liable to compensate the claimant for the
damages. However, shortly after this case, Parliament legislated with
retrospective effect in the War Damage Act11,
in order to prevent similar claims. This is generally used to undermine the
Rule of Law as Parliament had the power to overrule it through legislation with
retrospective effect.       

2015 UKSC 21

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2017 UKSC 5

1965 AC 75 HL

Introduction to the Study of the Law of the Constitution Eighth Edition, 1915
(LibertyClassics, 1982), p. 116.

1967 Crim. L.R. 483

 2005 UKHL 56

Hunting Act 2004

Parliament Act 1949

Lord Steyn

1965 AC 75 HL

War Damage Act 1965