Parliamentary sovereignty has long been a cornerstone of the UK’s constitutional framework, championed by legal scholars like A.V. Dicey. Dicey’s 19th-century doctrine emphasises that Parliament holds ultimate legal authority, free to legislate on any matter and that no other body, including courts, can override its statutes. This principle reflects the traditional view of parliamentary sovereignty, suggesting that Parliament is not bound by previous legislation and that no institution can question its authority.
However, the notion of absolute parliamentary sovereignty has been increasingly contested. This has been particularly due to the influence of external legal regimes such as the law of the European Union and the European Convention on Human Rights, which have found their way into UK domestic law through the Human Rights Act 1998. These legal systems impose certain obligations on the UK which raise questions regarding how far the notion of parliamentary sovereignty remains intact. This article will consider these challenges, focusing on the tension between parliamentary sovereignty and the constraints of international law, particularly focusing on EU law and the Human Rights Act.
The Traditional Doctrine of Parliamentary Sovereignty
Dicey formulates his concept of parliamentary sovereignty based on two key principles: first, Parliament has the absolute authority to enact or abolish any law; second, no person or body can purport to have the right to disobey or set aside an Act of Parliament.
That is, Parliament has absolute authority and cannot be hindered by anyone else, be it international agreements or judgments. In other words, whatever decision Parliament makes under this principle is final, and there is no higher law in the United Kingdom. Nevertheless, in actual implementation, this concept of absolute sovereignty has consistently encountered specific political and practical constraints. For example, international obligations necessitate that parliamentary legislation is consistent with treaty commitments; however, these treaties must be integrated into domestic law in order to exert direct legal influence. Historically, this theoretical challenge to parliamentary sovereignty has been relatively insignificant, as Parliament maintains the authority to legislate in opposition to international treaties should it decide to pursue that course of action.
The Influence of European Union Legislation on Parliamentary Supremacy
The United Kingdom’s association with the European Union, which lasted from 1973 until its exit in 2020, notably complicated the conventional interpretation of parliamentary sovereignty. A fundamental tenet of European Union law is its preeminence over national legislation. Consequently, this allowed EU law to supersede domestic law within the UK, resulting in a direct contradiction to Dicey’s conceptualisation of parliamentary sovereignty. This was best illustrated in the case of Factortame (1990), where the European Court of Justice ruled that Britain’s courts must set aside national laws and disregard those which are intended to repel European Law.
The ECA 1972 formed the statutory basis for the direct application of EU law in the UK. Under the same act, EU regulations and directives became part of the laws of the land, and to the extent that they conflicted with the laws of the UK, EU laws prevailed. This was quite alien to the traditional notion of parliamentary sovereignty, as it provided that Parliament had agreed to limit the exercise of its legislative authority. Further, the direct effect doctrine that empowered individuals to enforce some EU laws before national courts also limited the legislative supremacy of Parliament. Even though Parliament could, in theory, repeal the ECA and exit the EU, its legislative autonomy was in practice tightly bound by the doctrine of EU law supremacy. This was the time that altered the balance insofar as the relative authority of domestic and supranational legality was concerned with the clipping down of parliamentary sovereignty and the enlargement of EU obligations.
The European Convention on Human Rights and the Human Rights Act of 1998
A major development in the challenge to the supremacy of Parliament came with the incorporation into UK law of the European Convention on Human Rights through the Human Rights Act 1998. The European Convention on Human Rights adopted in 1950 enumerates a range of civil and political rights and freedoms for all individuals across Europe.
While the UK had signed the Convention since its inception, it was not until the passage of the HRA that such rights became enforceable in domestic courts. The HRA requires UK courts to interpret legislation “so far as it is possible to do so” in a way which is compatible with the rights outlined in the ECHR.
This interpretative requirement gives the judiciary a serious role in the application of parliamentary legislation. Under section 4 of the HRA, if a court believes that a statute is incompatible with the ECHR, then a “declaration of incompatibility” can be issued. Crucially, however, these declarations do not affect the validity of the law, and it is left to Parliament to decide whether or not to alter or abolish the legislation.
In that way, the theory of parliamentary sovereignty is maintained because Parliament decides whether or not to act upon a declaration of incompatibility. However, the moral and political pressures produced by such findings, especially on fundamental rights issues, can serve to get Parliament to move legislation to the front burner. To that extent, this limited judicial power is an incursion into the historic interpretation of parliamentary sovereignty in that it would condition domestic legislation on the basis of international standards of human rights.
The Judiciary and Human Rights, an Innovative Constitutional Discourse
The Human Rights Act has instigated a new form of constitutional dialogue between the courts and Parliament. Despite the fact that courts lack the power to strike down primary legislation, the courts can interpret existing laws compatible with human rights principles as much as possible and highlight areas lacking in compatibility with the ECHR. This dialogue is partly responsible for many of the changes in UK law.
For example, in the case of A and Others v Secretary of State for the Home Department 2004, the House of Lords decided that indefinite detention of non-citizens without trial, allowed by the Anti-terrorism, Crime and Security Act 2001, was not compatible with the European Convention on Human Rights. Therefore, it was obligatory for the government to revise the legislation after that judgment.
Although Parliament is still considered sovereign in that it may choose not to revise any law following a declaration of incompatibility, the political context suggests that the existence of such declarations places considerable pressure on parliamentarians to bring domestic law into compliance with international standards of human rights. What this produces in reality is a situation whereby one does not have unconditional parliamentary sovereignty, but rather one tempered by an architecture of judicial and international scrutiny.
Brexit and the Restoration of Sovereignty
The vote of the United Kingdom to leave the European Union, partly couched as one to “restore” parliamentary sovereignty, has reanimated arguments about how far external legal regimes have whittled away Parliament’s legislative supremacy. The European Union (Withdrawal) Act 2018, by repealing the European Communities Act 1972, thereby formally ceased the application of EU law in the UK and restored full legislative competence to Parliament. Whereas Brexit has removed the direct application of EU law, the UK remains obliged to a host of international commitments, such as the ECHR, that shape domestic law.
Still, the UK’s future trade and regulatory arrangements with the EU and other international partners could further restrict Parliament’s discretion in legislating regarding human rights standards, environmental controls, and market access. Thus, while Brexit has, in theory, restored parliamentary sovereignty by removing the subordination of UK law to EU law, it is clear nonetheless that international commitments deriving from the ECHR, among others, continue to challenge the idea of absolute legislative supremacy. The modern internationalised environment in which the UK exists within the ambit of state governance entails that the actions of Parliament will be touched upon by structures of international law at all times, even while it retains the formal power to act unilaterally.
Taken all together, the traditional concept of parliamentary sovereignty has seen serious eroding due to the UK’s membership in the European Union and the incorporation of the European Convention on Human Rights through the Human Rights Act of 1998. While Parliament remains theoretically the supreme legislative body within the UK, its ability to legislate has been curtailed both by EU law, requiring domestic courts to set aside any conflicting UK legislation, and the ECHR, which applies human rights assessments to parliamentary statutes. The Human Rights Act has facilitated a constitutional discourse between Parliament and the judiciary, in which judicial pronouncements of incompatibility, despite their non-binding nature, exert significant influence on legislators to amend existing laws.
While Parliament maintains the theoretical power to disregard international commitments, the pragmatic situation indicates that these legal structures have transformed the application of parliamentary sovereignty. While Brexit has indeed brought the supremacy of EU law over the UK to a close, the fact that international obligations alone- those stemming from the ECHR- are still at work implies that parliamentary sovereignty is still externally checked. As the UK navigates its post-Brexit legal landscape, the balance between national legislative autonomy and international legal commitments will continue to evolve, reflecting the complex realities of modern governance.
This article is written by Siyma Mumtaz, (Doncaster UTC).
