Published online by Cambridge University Press: 02 January 2018
In this paper, I use Dworkin's distinction between rules and principles to analyse the doctrine of parliamentary sovereignty. I argue that, inherent in many conceptions of the doctrine, is an assumption that it operates in the conclusive manner of a Dworkinian rule. I then submit that the doctrine actually functions in the flexible way characteristic of a Dworkinian principle. In support of this contention, I argue that Acts of Parliament may be balanced against competing principles or statutes; that they possess the dimension of weight or importance; and that the degree to which they will be adhered in any particular case will be contingent upon the importance attributed to any competing principle or statute. I finish the paper with an evaluation of my arguments and an attempt to anticipate potential counter-arguments.
1. Lord Hope in R (Jackson) v Attorney-General  1 AC 262 at .
2. Also known as legislative sovereignty or supremacy; these terms will be used synonymously throughout and will be taken to refer to the legislative competence of Parliament.
3. Jackson, above n 1, at .
4. Ibid, at .
7. Ibid, p 25.
9. Ibid, p 27.
11. Ibid, pp 22, 82.
12. Ibid, p 22; see also p 82.
13. Ibid, pp 82–86; Dworkin, R Law's Empire (Oxford: Hart Publishing, 1998)Google Scholar p 244. There are two main reasons for this. First, issues of policy involve the balancing of competing societal goals when deciding what is best for the community as a whole. Elected legislators are suited to this task because they are exposed to arguments posited by different interest groups whereas judges, being unelected and insulated from such pressures, are not. Secondly, adjudicating by reference to policy considerations amounts to imposing retrospective duties on the parties to a case, and is thus illegitimate, whereas drawing on existing principles means that a case is decided according to pre-existing rights. However, when interpreting a statute, a judge should have recourse to the policy of the statute as constructed from the words used: ‘Any competent justification of the Endangered Species Act…must appeal to a policy of protecting endangered species’ (Law's Empire, p 339).
14. Dworkin, above n 5, p 22.
15. Ibid, p 26.
17. Ibid, pp 25–26.
18. AV Dicey Introduction to the Study of the Law of the Constitution (London: Macmillan, 8th edn, 1915 (reprint by Liberty Fund, Indianapolis)) pp 3–4.
19. Madzimbamuto v Lardner-Burke  1 AC 645 at 723.
20.  1 KB 733.
21.  KB 590.
22. Ibid, at 595–596.
23. Ibid, at 597.
25. Above n 23.
26. Jackson, above n 1, at .
27. Ibid, at .
28. Lord Woolf of Barnes ‘Droit public – English style’ PL 57 at 69.
29. For example: Lord Phillips, Interview The Today Programme BBC Radio 4, 2 August 2010; Baroness Hale, Lord Steyn and Lord Hope in Jackson, above n 1, at ,  and , respectively; and SirLaws, John in ‘Law and democracy’ 1995 PL 72 Google Scholar at 75–76, 81–90 and ‘the constitution: morals and rights’ 1996 PL 622 at 628 and 635.
30. Anisminic Ltd v Foreign Compensation Commission  2 AC 147.
31. Ibid, at 170. See also p 200 (Lord Pearce).
32. Jackson, above n 1, at  (Lord Steyn) and  (Baroness Hale); Lord Woolf, above n 28, at 69; J Rozenburg ‘Law Lords raise stakes on asylum’Daily Telegraph 5 March 2004, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/03/05/nasy05.xml.
33. R v Cornwall County Council, ex p Huntington and another  3 All ER 566 at 575.
34. Elliott, MC ‘the ultra vires doctrine in a constitutional setting: still the central principle of administrative law’ 1999 CLJ 129 Google Scholar at 151.
35. Elliott makes a similar argument: ‘…the courts give effect to the literal meaning of clauses which preclude review only after a certain period of time: in this area, there is less tension between the plain meaning of the provision and the dictates of the rule of law, because judicial review is not precluded altogether by the clause’, ibid, at 152.
36.  QB 575.
37. Forsyth and Elliott adopt a similar analysis: ‘[I]t is clear that Laws J envisages an interaction between…“common law” rights and the words of a statute and that the outcome of that interaction is the actual meaning given to statute. Thus the principle of access to justice is used to shape the meaning of the legislation itself’, Forsyth, CF and Elliott, MC ‘the legitimacy of judicial review’ 2003 PL 286 Google Scholar at 304.
38. 115 NY 506; 22 NE 188 (1889), cited in Dworkin, above n 5, p 23.
39. 115 NY 506 at 511.
41. Dworkin, above n 5, p 37. Dworkin has been criticised on this point because the idea that rules may be qualified by principles seems to be inconsistent with the conclusive character that he attributes to them. Hart, for instance, writes of Dworkin's use of Riggs v Palmer: ‘This is an example of a principle winning in competition with a rule, but the existence of such competition surely shows that rules do not have an all-or-nothing character, since they are liable to be brought into such conflict with principles which may outweigh them’, Hart, Hla The Concept of Law (Oxford: Oxford University Press, 2nd edn, 1994)Google Scholar p 262 (Postscript).
42. Ibid, pp 24–25.
43. Craig, PP Administrative Law (London: Sweet & Maxwell, 6th edn, 2008)Google Scholar p 926; Wade, Hwr and Forsyth, CF Administrative Law (Oxford: Oxford University Press, 10th edn, 2009)Google Scholar pp 621–623. For example, see the Acquisition of Land Act 1981, s 23 and the Town and Country Act 1990, s 287.
44. See above n 17, text. Allan makes the point in the following way: ‘A principle's weight will vary infinitely within an infinite range of facts and circumstances: it is precisely this elastic quality which eludes the straight-jacket nature of rules’, Allan, Trs Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford: Clarendon Press, 1993)Google Scholar p 93.
45. See above n 16 text.
46. R v Secretary of State for Transport, ex p Factortame and Others (No 2)  1 AC 603.
47.  QB 151 at –.
48. Ibid, at .
49. Ibid, at –. It is worth noting that Laws' view, here, conflicts with Dicey's who stated that parliamentary sovereignty means, among other things, ‘the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws [and] the absence of any legal distinction between constitutional and other laws…’, above n 18, p 39. Laws' definition, and examples, of constitutional statutes has been criticised; see for example ‘Constitutional statutes’ (2007) 28 Stat LR iii at iii–iv.
50.  QB 151 at .
51. Pyx Granite Co v Ministry of Housing and Local Government  AC 260 at 286.
52. Khawaja v Home Secretary  AC 74 at 111.
53. Macarthys v Smith  ICR 785 at 789.
54. Above n 31.
55. R v Medical Appeal Tribunal, ex p Gilmore  1 QB 574 at 583.
56. Eg Lord Phillips in R (Savasubramaniam) v Wandsworth County Court  1 WLR 475 at  and Laws LJ in R (Cart) v Upper Tribunal  2 WLR 1012 at .
57. Craig, above n 43, pp 545–548.
58. For other common law constitutional rights see Knight, Cjs ‘Striking down legislation under bi-polar sovereignty’ 2011 PL 90 Google Scholar at 96–98.
59. Described by Lord Steyn as ‘the primary right’ in a democracy in R v Secretary of State for the Home Department, ex p Simms  2 AC 115 at 125 and ‘a core value of our legal system’ in R (on the application of Rusbringer) v Attorney General  UKHL 38 at .
60. Held to be a ‘constitutional right’ by Laws J in Witham, above n 36, at 586.
61. Referred to as a ‘constitutional fundamental’ by Lord Steyn in Jackson, above n 1, at .
62. Called a ‘constitutional fundamental’ by Steyn, Lord in ‘Democracy, the rule of law and the role of judges’ 2006 EHRLR 243 Google Scholar at 249.
63. Termed a ‘fundamental value of the common law’ by Sedley J in R v Secretary of State for the Home Department, ex p McQuillan  4 All ER 400 at 421.
64. Laws J in Witham, above n 36, at 585–586; Lord Hoffmann in Simms, above n 59, at 131; Laws LJ, again, in International Transport Roth GmbH v Secretary of State for the Home Department  QB 728 at ; Baroness Hale in Jackson, above n 1, at ; A v HM Treasury  UKSC 2 at  and  (Lord Hope),  and  (Lord Mance).
66. JL Jowell ‘Of vires and vacuums: the constitutional context of judicial review’ PL 448 at 458. However, Allan writes: ‘If it is true that Parliament may override such rights by “express, focussed provision”, that is because it is rightly presumed to intend their protection unless there are powerful reasons against it. And the stronger the right, as a matter of general principle, and the weaker the reasons suggested for infringing or restricting it, the more clearly expressed and focused the relevant provision must be; in some cases there will be no language appropriate to authorise executive action whose legality could be affirmed only at the cost of constitutional breakdown’ (emphasis added), Allan, Trs ‘the constitutional foundations of judicial review: conceptual conundrum or interpretative inquiry?’ 2002 CLJ 87 Google Scholar at 103 (citation omitted). See also Allan, above n 44, p 143.
67. R v Secretary of State for the Home Department, ex p Simms , above n 59, at 131. Lord Rodger echoes this in Watkins v Secretary of State for the Home Department  2 AC 395 at . A similar justification is implicit in the judgment of Laws LJ in Thoburn, above n 47, at : ‘For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual– not imputed, constructive or presumed – intention was to effect the repeal of abrogation? I think the text could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible’ (emphasis in original). See also Baroness Hale in Jackson, above n 1, at .
68. Banner, C and Moules, R ‘Public law in the House of Lords: emerging trends and guidance on petitions for leave to appeal’ 2007 JR 24 Google Scholar at –.
69. Road Traffic Act 1988, s 172. The privilege against self-incrimination is also protected by Art 6 of the ECHR. In JB v Switzerland  ECHR 31827/96 at , the ECtHR stated: ‘the right to remain silent and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Art 6(1) of the Convention. The right not to incriminate oneself in particular presupposes that the authorities seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the person charged’. However, in Mawdsley v Chief Constable of the Cheshire Constabulary  EWHC 1586 at – Owen J decided that the Road Traffic Act 1988, s 172 was not a disproportionate response to the problem of driving with excess speed and so did not breach Art 6.
70. Indeed, Craig refers to this latter principle as ‘the right of rights’, Craig, PP ‘Political constitutionalism and judicial review’ in Forsyth, C et al (eds) Effective Judicial Review: A Cornerstone of Good Governance (Oxford: Oxford University Press, 2010)Google Scholar p 36.
71. Allan, above n 44, p 269.
72. International Transport Roth GmbH, above n 64, at .
74.  AC 147.
75. Above n 73, pp 86–87.
76.  QB 198.
77. Ibid, at 209.
78. Dworkin, above n 5, p 22.
79. Dworkin, above n 13, p 342; Dworkin, R ‘Political judges and the rule of law’ in Dworkin, R A Matter of Principle (Oxford: Oxford University Press, 1985)Google Scholar p 16; Likewise, Allan writes: ‘fairness – meaning the appropriate distribution of political power – finds its constitutional expression in the enactment and application of statute’, above n 44, p 12. In a similar vein, Goldsworthy states: ‘One of the most fundamental of all rights is that of ordinary people to participate, on equal terms, in the political decision making that affects their lives as much as anyone else's’, Goldsworthy, J The Sovereignty of Parliament: History and Philosophy (Oxford: Oxford University Press, 1999)Google Scholar p 263.
80. Above n 34, at 153; Elliott, MC The Constitutional Foundations of Judicial Review (Oxford: Hart Publishing, 2001)Google Scholar pp 122 and 123.
81. Laws, above n 29, at 89. See also a summary of this view given by Craig: Craig, PP ‘Sovereignty of the United Kingdom parliament after Factortame’ (1991) 11 YBEL 221 Google Scholar at 251.
82. Others seem to share this view; see eg Elliott, above n 80, pp 31 and 121; Wade and Forsyth, above n 43, p 610.
83. Wade, Hwr ‘Sovereignty – revolution or evolution’ (1996) 112 LQR 568 Google Scholar at 570. See also pp 568, 573 and 575; Elliott, above n 80, p 82 and Allan, above n 44, p 267.
84. Above n 18, p 4.
85. Above n 28.
86. Above n 53.
87. Thoburn, above n 47, at . It should be noted, however, that Laws LJ has also stated that the ability of Parliament to override fundamental or constitutional rights by using express legislative language is a ‘brightline rule whose edge is sharp’, International Transport Roth GmbH, above n 64, at .
88. As noted, above n 1, 3 and 4.
89. Jackson, above n 1, at ; see also .
90. Lord Neuberger of Abbotsbury ‘Who are the Masters now?’ Second Lord Alexander of Weedon Lecture, 6 April 2011, paras – and –.
91. Above n 44, p 93.
93. Ibid, pp 93–94.
95. A point with which Allan seems to agree: ibid, pp 150–151. Similarly, Raz states: ‘Legal principles, like other laws, can be enacted or repealed by legislatures and administrative authorities’, Raz, J ‘Legal principles and the limits of law’ (1972) 81 Yale LJ 823 CrossRefGoogle Scholar at 848; see also p 854, n 55.
96. Eg: ibid, p 79.
97. Ibid, at pp 130–134.
98. I echo Wade here who writes: ‘For it is reality that counts: if the courts of the newly made independent country have in fact thrown off their allegiance [to the UK Parliament], it is futile to talk of continuing sovereignty’, HWR Wade ‘The basis of legal sovereignty’ CLJ 172 at 196.
99. Wade, Hwr Constitutional Fundamentals (London: Stevens, 1980)Google Scholar p 65. See also Laws LJ who states that it is the courts ‘to which the scope and nature of parliamentary sovereignty are ultimately confided’: Thoburn, above n 47, at ; and Lord Steyn, ‘[T]he supremacy of Parliament…is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism’, Jackson, above n 1, at . For contrary views see Ekins, R ‘Acts of parliament and the parliament acts’ (2007) 123 LQR 91 Google Scholar at 102–103 and Gordon, M ‘the conceptual foundations of parliamentary sovereignty: reconsidering Jennings and Wade’ 2009 PL 519 Google Scholar at 534–539.
100. Craig writes: ‘Given that the content of the rule of recognition [ie, parliamentary sovereignty] is based upon factual acceptance by those who operate the system, and that it only exists if this is present, then it follows that the content of this rule could alter if the practice of those who operate the system itself changes’, Craig, PP Public Law and Democracy in the United Kingdom and the United States of America (Oxford: Oxford University Press, Clarendon Law Series, 1990)Google Scholar pp 225–226.
101. Above n 79, p 245; also, more generally, pp 236–279. Likewise, Forsyth writes: ‘An unelected branch of government cannot remake the constitution on its own’, Forsyth, CF ‘Showing the fly the way out of the flybottle: the value of formalism and conceptual reasoning in administrative law’ 2007 CLJ 325 CrossRefGoogle Scholar at 346. Lord Millett goes further, requiring legislative rather than judicial activism: ‘This is not to say that the doctrine of Parliamentary supremacy is sacrosanct, but only that any change in a fundamental constitutional principle should be the consequence of deliberate legislative action and not judicial activism, however well meaning’, Ghaidan v Godin-Mendoza  UKHL 30 at .
103. I should note that Lakin contends that his argument makes talk of parliamentary sovereignty obsolete: ‘Given that Parliament derives its powers from law, we have a normative reason to erase the concept of sovereignty from our constitutional landscape’, ibid, at 731.
104. Above n 29. We should note that this conflicts with Dicey's assertion: ‘…the courts will take no notice of the will of the electors. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or kept alive in opposition to the wishes of the electors’, above n 18, p 28.
105. Similarly, Loughlin asks: ‘What…are these foundational constitutional principles? What is it within the background, education, training and experience of the judiciary which enables them to not only identify the principles (the relatively easy bit) but also to unpack them and set them to work to resolve particular social disputes concerning the appropriate exercise of public power?’, Loughlin, M ‘Whither the constitution?’ in Forsyth, CF (ed) Judicial Review and the Constitution (Oxford: Hart Publishing, 2000)Google Scholar p 426.
106. Dworkin, above n 5, p 26.
107. Hart, above n 41, pp 261–262.
108. Above n 38.
110. Above n 95, pp 829–834.
111. Ibid, pp 834–839.
112. Ibid, p 838.
113. A Altman ‘Legal realism, critical legal studies and Dworkin’ (1986) 15 Phil Pub Aff 205 at 217–218.
114. A concise account of this is given in Law's Empire, above n 13, p 225. See also Dworkin, above n 5, pp 115–118; and R Dworkin ‘How law is like literature’ in Dworkin, R A Matter of Principle (Oxford: Oxford University Press, 1985)Google Scholar pp 151–152 and 158–162.
115. Waldron captures this perfectly when he writes of Duncan Kennedy's work: ‘Kennedy thinks the background is so riven with contradiction as to be capable of offering spurious support for everything and determinate support for nothing in legal reasoning’, Waldron, J ‘Did Dworkin ever answer the crits?’ in Hershovitz, S (ed) Exploring Law's Empire: the Jurisprudence of Ronald Dworkin (Oxford: Oxford University Press, 2006)Google Scholar p 155.
116. Above n 113, at 226.