Accuracy of Dicey’s Definition of Parliamentary Sovereignty

Does Jackson [2005] UKHL 56 prove that Dicey’s definition of Parliamentary sovereignty is no longer accurate?

Parliamentary sovereignty is the idea that Parliament are the supreme law makers who can legislate at will and that no one is above Parliament. Dicey provides his definition of parliamentary sovereignty stating that “The principle of Parliamentary Sovereignty means that neither more nor less than this, normally, that Parliament…. Has, under the English constitution, the right to make any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”[1] This perspective was deemed highly important when discussing sovereignty as Dicey provided.

It is also important to establish what the Jackson Case[2] was about. The 1911[3] Act was passed which was deemed to be constitutionally sound. Under this Act, it passed the 1949[4] Act which bypassed the House of Lords consent. Under these two Acts it was made illegal to hunt with dogs under the ‘Hunting Act 2004’[5]. As this was passed under the two Acts, (1911 and 1949) it became a debatable topic whether this was a legitimate act that could be valid and enforceable as it bypassed the House of Lords.  In response to this, the claimants argued that the 1911 Act allowed secondary legislation to be produced. Another problem that arises was the fact that the 1949 Act, was legislated through the 1911 Act which retained the idea that this too could not be used to pass laws as it was made via the 1911 Act which bypassed the House of Lords procedure. 

Under the ‘doctrine’ of supremacy¹, Dicey states that there were three key points of Parliamentary Supremacy. This was that Parliament can make any law, it cannot be overridden by any body and that Parliament cannot bind its successors, nor can it be bound by predecessors.¹ This was supported in the case of Mortensen[6] demonstrating that Acts of Parliament breach international law.

In respect to the Jackson case, it became apparent that this definition that Dicey gave was becoming no longer accurate. This was particularly illustrated as the case highlighted that the process of illegalising hunting had resulted in “extending the life of Parliament”¹ which evidently is illegal and exhibited that Dicey’s doctrine was becoming inaccurate. The 1911 and 1949 Act was viewed as a great danger to Parliament as theoretically it allowed the Commons to pass any law they wished.

A key discussion in the judgments of the Jackson case was the ‘decay’ of Parliamentary Sovereignty. Lord Hope gives reason that the dissolving of its sovereignty is due to its “own enacted measures.”[7] The reasoning given for this was due to the 1911 and 1949 Act allowing the House of Commons to enact legislation without the approval of the House of Lords. Therefore, this was seen as limiting and undermining the sovereignty of parliament as another body held legislative power. This also demonstrated that Dicey’s definition is no longer accurate as he states that no one has the right to “override or set aside the legislation of Parliament.”¹ But clearly, the two Acts reject Dicey’s idea that Parliament are the only legislative powers.  It was further argued that these Acts allowed the House of Commons to potentially have the power to enact any legislation and to make any changes to the constitution. Previously, as displayed in the case of Pickin[8], Lord Reid stated that the courts did not have the lawful power to void Acts or to question validity.[9]  In regard to this, Jackson (2005) displayed an opposing view as it was seen that the courts could ignore the “enrolled Act”[10] which states that legislation must be applied without questioning Parliament. This further illustrates that Dicey’s definition is no longer accurate as Jackson had challenged the process.

Bogdanor[11] argued that Jackson represented the idea that it was possible that the courts were using the 1911 and 1949 Act as a “position for future battles.” Although this doesn’t explicitly illustrate that Dicey’s definition is no longer accurate, it does display that the courts started to believe that they may have ‘power’ over Parliament, which ultimately suggests that the sovereignty of Parliament has weakened.

Overall, it is reasonable to conclude that although the definition Dicey gave was the ‘principle’ of Parliamentary sovereignty, this has become dated and is no longer accurate. This was confirmed in the Jackson case as it displayed in various ways that Dicey’s definition was no longer accurate due to the facts that the 1911 and 1949 Acts allowed legislation to be enacted without the consent of the House of Lords. This ultimately contradicted the established doctrine of parliamentary sovereignty as the Jackson case displayed that Parliament had been overridden and were not the only body to enact legislation. The fundamental basis of Parliamentary sovereignty is that Parliament are supreme, the Jackson case established that there were limitations on this. 

Bibliography

• A.V. Dicey, An Introduction to the Study of the Law of the Constitution (8th edn. 1915, p. 3-4)
• British Railways Board v Pickin [1974] AC 765
• Jackson v Attorney General [2006] 1 AC 262
• Lord Hope, Jackson v Attorney General [2006] 1 AC 262
• Lisa Webley & Harriet Samuels, Complete Public Law (4^th Edn, OUP 2018)
• The Enrolled Bill Rule
• The Parliament Act 1911
• The Parliament Act 1949
• The Hunting Act 2004
• Mortensen v Peters (1906) 8 F(J) 93

[1] A.V. Dicey, An Introduction to the Study of the Law of the Constitution (8th edn. 1915, p. 3-4)

[2]  Jackson v Attorney General [2006] 1 AC 262

[3] The Parliament Act 1911

[4] The Parliament Act 1949

[5] The Hunting Act 2004

[6] Mortensen v Peters (1906) 8 F(J) 93

[7] Lord Hope, Jackson v Attorney General [2006] 1 AC 262

[8] British Railways Board v Pickin [1974] AC 765

[9] Lisa Webley & Harriet Samuels, Complete Public Law (4^th Edn, OUP 2018)

[10] The Enrolled Bill Rule

[11] V. Bogdanor, Jackson v Attorney General [2006] 1 AC 262