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It appears not so very
long ago that any work on the constitution of the United Kingdom would quote
without further consideration Dicey’s prominent paragraph to the effect that
Parliament has “the right to make or unmake any law whatsoever and that no
person or body is recognized as having the right to override or set aside the
legislation of Parliament”. The canon of parliamentary sovereignty makes
legislative freedom the centerpiece of the constitution. The
Queen-in-Parliament is allowed to ratify any decree it chooses, save only that
it may not bind its successors. This legally unlimited power to legislate is
subject to constitutional bounds, but Acts of Parliament that breach these
limits remain legally valid and their validity cannot be challenged in a court
of law. Has the relationship between parliamentary sovereignty and the rule of
law now changed? If so, would the courts possess the authority to review and
then even to set aside a parliamentary statute which offended the rule of law or
indeed other fundamental principles integral to a contemporary conception of
constitutional democracy?

Is there any altered
“political fact” which justifies a new-found judicial authority to review the
validity of legislation so as to ensure conformity with the rule of law? The
dicta in Jackson provide compelling evidence that there are changed
understandings and expectations nowadays which, unlike in the past, reject the
notion of the unfettered authority of a legislature. Even the first proposition
that Parliament has the right to make or unmake any law whatsoever is now being
questioned. Remarkably, skepticism about the limits of parliamentary
sovereignty is not confined to academic theorists but has for some time been
voiced by judges, both in the UK and in the Commonwealth. In a lecture in 1994,
Lord Woolf remarked that if Parliament did the unthinkable the courts would be required
to act in a manner which would be without precedent, since there are “limits on
the supremacy of Parliament which it is the courts’ absolute duty to identify
and uphold.1
Sir John Laws propounded that in a society of free rational beings, it cannot
be supposed to be within the capacity of government deprive citizens of rights
such as that of freely passing judgment on their governors. A higher order law is
needed to the commands of governments and legislators which is not within their
unlimited control.

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So far as the modern
authorities, then, may be starting gradually to diverge from the traditional
understanding of the canon of parliamentary sovereignty, they seem to be
beginning to reflect a tentative trend towards common law constitutionalism.
However, a rejection of Dicey’s orthodoxy need not require an acceptance of
this constitutional trajectory. For the majority, the 1972 Act brought about
the direct effect and supremacy of the treaties that established EU law as a
unique and new “source’ of law in the United Kingdom. For the minority,
the 1972 Act did nothing of the sort. It introduced EU law on the condition
that the executive would continue to affirm membership through its standard
powers of foreign affairs.

However, over time a rigid
adherence to Dicey’s principle has led to a manipulation of the positivist
tradition. This in turn has led to legal authority overriding, and undermining,
political legitimacy. A clear case of this is the Scottish Parliament created
in 1998. In Scotland sovereignty has, since at least the 1950s, been a
contested concept – knowledge of parliamentary sovereignty has been colored and
challenged by myths of popular sovereignty, clearly eliding the related but
separate concepts of legal and political sovereignty. Indeed tension has
existed because whilst parliamentary sovereignty is by definition indivisible,
the United Kingdom has accommodated great national pluralism. Parliamentary
sovereignty has historically played a role in Scotland’s constitution. However,
with increased institutional, and now legislative, autonomy, it is Scotland’s
capacity for political and constitutional divergence from the rest of the UK
that looks set to challenge the legal doctrine of parliamentary sovereignty.

The English doctrine of
parliamentary sovereignty emanates from the historically precarious
relationship between the English Parliament and the English Crown.2
His strict adherence to the doctrine of parliamentary sovereignty within the
Scotland Act can be regarded as a perverse interpretation of the Diceyan contrast
between law on the one hand and politics on the other. As Bogdanor has
remarked, “Constitutionally, the Scottish Parliament will clearly be
subordinate. Politically, however, it will be anything but subordinate. For the
Scotland Act creates a new locus of political power. Its most important power
will be one not mentioned in the Act at all, that of representing the people of
In Dicey’s conception of sovereignty the normative underwrote the empirical,
but it is no longer clear that this is the case. Indeed, it has been contended
that “the central place given to parliamentary sovereignty in the Scottish
devolution settlement was, at a fundamental level, raw power politics, and an
unambiguous statement of political dominance.4
Claims of Scottish popular sovereignty and theories of fundamental law have
been largely discredited, but ironically they elicit the central theme of this
paper: the diminishing practical efficacy and normative force of parliamentary
sovereignty as a British, as opposed to merely English, doctrine, by reference
to an emerging Scottish constitutionalism.

1  “Droit Public–English Style” 1995 P.L. 57,
at 69

2  Jeffrey Goldsworthy, The Sovereignty of
Parliament: History and Philosophy, (Oxford 1999) for a thorough examination of
the history of English parliamentary sovereignty

3  E Wicks, The Evolution of a Constitution, p.

4 Little,
“Scotland”, 2004 Legal Studies 540, p. 552.

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