Public Law: Parliamentary Sovereignty

Parliamentary Sovereignty is the bedrock of the UK constitution. It is the principle that Parliament has the power to make or unmake any law, and that no person or body (including the courts) has the right to override or set aside the legislation of Parliament. This doctrine, famously defined by A.V. Dicey in the late 19th century, is the "ultimate political fact" of English law. However, in the 21st century, sovereignty is under pressure from "Constitutional Statutes," the Human Rights Act 1998, and the lingering influence of EU law. This article provides a comprehensive deep dive into the Diceyian orthodox view, the "Manner and Form" challenge, and the revolutionary decision in Factortame.

1. The Orthodox View: A.V. Dicey’s Three Pillars

In his 1885 work, Introduction to the Study of the Law of the Constitution, A.V. Dicey set out three pillars of sovereignty:

1. Parliament can make or unmake any law whatsoever.
2. No person or body can override an Act of Parliament (the "Enrolled Bill" rule).
3. No Parliament can bind its successor (the doctrine of Implied Repeal).

The Doctrine of Implied Repeal

If an older Act conflicts with a newer Act, the newer Act automatically repeals the older one to the extent of the conflict (Ellen Street Estates v Minister of Health). This ensures that the Parliament of today is always supreme over the Parliament of yesterday.

2. Modern Limitations & The "Constitutional Statute" Revolution

The orthodox view was challenged in Thoburn v City of Sunderland [2003], where Laws LJ argued that "Constitutional Statutes" (like the Magna Carta, the Bill of Rights, or the ECA 1972) cannot be impliedly repealed. They can only be repealed if Parliament uses "express words." This created a hierarchy of laws previously unknown to the English constitution.

3. The Impact of EU Law: Factortame

The most significant challenge came from the UK’s membership in the EU. In Factortame (No 2) [1991], the House of Lords "disapplied" an Act of Parliament (the Merchant Shipping Act 1988) because it conflicted with EU law. This was a constitutional earthquake. While the UK has since left the EU, the principle remains: Parliament can voluntarily limit its own sovereignty by enacting statutes that give priority to another legal system.

4. Key Cases — Detailed Analysis

5. Critical Analysis & Academic Debate

The "New View" of sovereignty (associated with Sir Ivor Jennings) argues that Parliament can bind itself as to the "Manner and Form" of future legislation (e.g. requiring a referendum to repeal a law). Conversely, the "Political Fact" view (associated with H.W.R. Wade) argues that sovereignty is not a legal rule, but a political reality that can only be changed by a revolution. Professor Jeffrey Jowell argues that sovereignty is now "tempered by the Rule of Law," meaning Parliament is supreme only as long as it respects fundamental constitutional principles.

6. Worked Example — Problem Scenario

ISSUE: Is the 2026 Repeal Act valid?

RULE: Under the doctrine of Implied Repeal and the rule that No Parliament can bind its successor (Dicey), the 2026 Act should prevail.

APPLICATION: However, the "New View" suggests that the "75% requirement" is a "Manner and Form" rule. If the court accepts this, the 2026 Act would be invalid.

CONCLUSION: Under the current orthodox view, the 2026 Act would likely be valid, as the 2025 Parliament cannot limit the power of the 2026 Parliament.

7. Examiner Insights — How to Score Top Marks

Conclusion

Parliamentary Sovereignty is the "sun" around which the UK constitution orbits. While its gravity is challenged by the moons of human rights and international law, it remains the ultimate source of legal authority in the United Kingdom. Mastering it is the first step in understanding the unique "flexibility" of the British state.