The Rule of Law and the Orthodox Doctrine of Parliamentary Sovereignty are constitutional concepts which were popularised by Albert Venn Dicey, an influential 19th century constitutional lawyer. Therefore, it seems only appropriate to begin this discussion with Dicey’s interpretation. In Dicey’s formulation, Parliamentary Sovereignty is comprised of two aspects, the positive and the negative. The positive side is that Parliament can ‘make or unmake any law’ and the negative aspect is that ‘no court or other body’ is recognised as having the ‘right to override or set aside the legislation of Parliament.
‘The Rule of Law is a chameleon-like notion. Used by different people it may mean radically different things’. From this statement, it is clear that the Rule of Law is much more difficult to define as a constitutional principle than Parliamentary Sovereignty. However, this paper will apply Dicey’s definition. Dicey’s account of the Rule of Law held three points. Firstly, no-one may be punished except for a breach of law. Secondly, the same law should apply to everyone. Thirdly, rights should be protected through the common law.
Firstly, this paper is going to identify whether a conflict exists between the two principles. Secondly, this paper is going to assess whether one constitutional principle outweighs another in supremacy. Lastly, this paper will consider whether resolution between the two constitutional principles is possible. Dicey believed that Parliamentary Sovereignty and the Rule of Law were the fundamental principles of the UK constitution. He held that ‘the sovereignty of Parliament favours the supremacy of the law’ and that they were completely compatible.
On the other hand, constitutional expert Vernon Bogdanor believes that “It is clear that there is a conflict between these two constitutional principles, the sovereignty of parliament and the rule of law. ” So who is right? Well, Dicey’s interpretation has been criticised for lacking precedential support and it has been argued that, over the years, a conflict between the two principles has arisen. Indeed, the problem stems from the fact that Parliamentary Sovereignty entails Parliament’s ability to make or unmake whatever law without restriction.
This necessarily entails that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily. Incompatibly, the Rule of law’s essential aim is to prevent the exercise of arbitrary or tyrannical power. Thus, it cannot be denied that there is a direct contradiction between the two principles. Dicey’s response to this is that the will of Parliament can only be expressed through an act and that these acts are only passed after a formal and deliberate process involving two houses and the Queen.
He adds that an act is also subject to judicial interpretation and he argues that Parliament has never attempted (except for the revolution) to exercise executive power. However, this is a weak argument and academics, such as WI Jennings, have challenged Dicey with extremely valid points. Jennings argues that the complex process which Dicey described is not actually at all intricate and that there have been numerous occasions where Parliament has passed a drastic act in one sitting or one day. This is arbitrary power indeed. A prime example of this would be the Defence of the Realm Act 1914 which gave Parliament extreme powers.
Furthermore, Parliament is not limited to the expression of general rules. Therefore, its orders are not merely legislative. In the past, Parliament has condemned people to death, release people from compliance with the law, declare marriages void. Parliament can both override judicial interpretation and even provide that an act is not subject to judicial interpretation. It is unconstitutional for Parliament to undermine the Rule of Law, however, it not illegal. Indeed, a case which highlights that the doctrine of Parliamentary Sovereignty can sometimes be used to violate the Rule of Law is Burmah Oil Co v Lord Advocate.
The Government brought forward the War Damage Act 1965 that included the phrase ‘…whether before or after the passing of this Act…’ Indicating that before 1965, the Government was liable for damage caused to property yet after 1965 it was not. The Rule of Law dictates that because this is a retrospective act, it should not be allowed, as it runs counter to the rule of law in its second sense, which is covered in Lord Bingham’s expansive meaning of the Rule of Law. Nonetheless, Parliament can make or unmake any law it wishes under the traditional doctrine of Parliamentary Sovereignty, and this, therefore, includes retrospective laws.
This case is authority for a situation in which the Orthodox Doctrine of Parliamentary Sovereignty and the Rule of Law come into conflict. However, in this particular case, Parliamentary Sovereignty overcomes and takes priority over the rule of law. Thus, this is one reflection of the relationship of Parliamentary Sovereignty and the Rule of Law; that Parliamentary Sovereignty outplays the Rule of Law. Nevertheless, Parliamentary Sovereignty has received some judicial criticism that has suggested that it is merely construct of the common law which judges can qualify to uphold the Rule of Law.
The case that illustrates this point is Jackson v Attorney General. In this case, the Hunting Act 2004 received Royal Assent and House of Commons assent but the Lords never agreed it as it was a hugely controversial piece of legislation. Despite this, the Act was still valid as it complied with the 1949 statutory procedure. Lord Hope, speaking obiter, suggested Parliamentary Sovereignty is not absolute and that the rule of law enforced by the courts is the ultimate controlling factor upon which our constitution is based. Lord Steyn raised the point that even a sovereign Parliament cannot abolish judicial review.
Furthermore, both Lord Steyn and Baroness Hale agreed that a particular Parliamentary majority ought to be required. Whilst these statements may be obiter, they may influence a shift in power from Parliamentary Sovereignty to the Rule of Law. It could be argued that the floodgates were opened by the creation of the ECA that imposed one kind of limit on Parliamentary’s sovereignty; it can no longer impliedly repeal certain pieces of legislation. Now, with that one limit being imposed, some judges speculate that there may be other limits as well, created by the Rule of Law.
Despite the official ability of the Parliament to exercise arbitrary power, the Rule of Law is reconciled with Parliamentary Sovereignty through the wide powers of interpretation of the judiciary. The presumption when interpreting statutes is that the statute operates within the Rule of Law and does not intend to alter the common-law or human rights. The wording of most legislation leaves enough room for the judges to interpret the legislation in a way which restricts the arbitrary use of power and places the legislation within the confines of the Rule of Law.
It is also true that Parliament can assert arbitrary power by wording its legislation clearly enough to make alternative interpretation impossible and by restricting the courts from interpreting the legislation with human rights in mind. They may also completely override or reverse court decisions. However, this doesn’t happen often in practice because after all, Parliament is fairly moral and even if it is not, self-interest would prevent Parliament acting in an immoral manner because, ultimately, they must gain the British public’s approval in order to win their votes.
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.