Title:
‘Step by step, gradually but surely, the English principle of the absolute legislative
sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified’
(Lord Hope in Jackson [104]).
In light of Laws LJ’s constitutional statutes doctrine in Thoburn and contemporary judicial
attitudes toward parliamentary supremacy, critically assess whether we are witnessing the
emergence of a new constitutional settlement or merely the refinement of established
principles.
Word Count: 1500
The traditional view of parliamentary sovereignty, articulated by Dicey and rooted in the
writings of Coke and Blackstone, portrays Westminster’s authority as absolute and legally
unchallengeable.1 Whether this remains accurate is debated.
Although largely unchallenged by the courts in the early and mid-twentieth century, 2 the
categorical nature of Parliament’s legislative power has been tested in recent cases as courts
take increasingly constitutionally bold approaches toward parliamentary supremacy. 3 This
essay examines whether these recent judicial developments signal a new constitutional
settlement or merely a refinement of established principles.
Constitutional change in this essay is assessed against the orthodox Diceyan framework of
parliamentary sovereignty. A new constitutional settlement exists only where that sovereignty
has been substantively altered, qualified, or limited. Such change may involve, but is not
limited to, the formal entrenchment of legislation, judicial power to invalidate Acts,
subordination of statutes to higher constitutional principles, or an irreversible transfer of
sovereignty to a supranational body. Only a fundamental reconfiguration of the constitutional
order amounts to a new settlement; anything less is refinement within the existing framework.
This benchmark is preferred over more lenient thresholds because a lower bar risks conflating
ordinary judicial development with genuine constitutional change, obscuring whether
Parliament’s legal sovereignty has been displaced or merely reframed.
This essay argues that recent cases do not satisfy the threshold above. Parliament retains
ultimate legislative sovereignty.4 Judicial dicta have not altered the underlying constitutional
reality: courts continue to defer to Parliament’s authority, and no judgment has matched the
boldness of judges’ own rhetoric on sovereignty. While courts have introduced ‘soft’ limits on
parliamentary power, no decision has questioned Parliament’s ability to enact legislation
1
A V Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959) 3–4; Edward
Coke, The Institutes of the Laws of England (1644) pt 1, 97b; William Blackstone, Commentaries on the Laws
of England (Clarendon Press 1765–69) vol 1, 160.
2
Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 (CA); see also Madzimbamuto v Lardner-Burke
[1969] 1 AC 645 (PC).
3
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151; R (Jackson) v Attorney
General [2005] UKHL 56, [2006] 1 AC 262 (HL).
4
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 [43].
‘Step by step, gradually but surely, the English principle of the absolute legislative
sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified’
(Lord Hope in Jackson [104]).
In light of Laws LJ’s constitutional statutes doctrine in Thoburn and contemporary judicial
attitudes toward parliamentary supremacy, critically assess whether we are witnessing the
emergence of a new constitutional settlement or merely the refinement of established
principles.
Word Count: 1500
The traditional view of parliamentary sovereignty, articulated by Dicey and rooted in the
writings of Coke and Blackstone, portrays Westminster’s authority as absolute and legally
unchallengeable.1 Whether this remains accurate is debated.
Although largely unchallenged by the courts in the early and mid-twentieth century, 2 the
categorical nature of Parliament’s legislative power has been tested in recent cases as courts
take increasingly constitutionally bold approaches toward parliamentary supremacy. 3 This
essay examines whether these recent judicial developments signal a new constitutional
settlement or merely a refinement of established principles.
Constitutional change in this essay is assessed against the orthodox Diceyan framework of
parliamentary sovereignty. A new constitutional settlement exists only where that sovereignty
has been substantively altered, qualified, or limited. Such change may involve, but is not
limited to, the formal entrenchment of legislation, judicial power to invalidate Acts,
subordination of statutes to higher constitutional principles, or an irreversible transfer of
sovereignty to a supranational body. Only a fundamental reconfiguration of the constitutional
order amounts to a new settlement; anything less is refinement within the existing framework.
This benchmark is preferred over more lenient thresholds because a lower bar risks conflating
ordinary judicial development with genuine constitutional change, obscuring whether
Parliament’s legal sovereignty has been displaced or merely reframed.
This essay argues that recent cases do not satisfy the threshold above. Parliament retains
ultimate legislative sovereignty.4 Judicial dicta have not altered the underlying constitutional
reality: courts continue to defer to Parliament’s authority, and no judgment has matched the
boldness of judges’ own rhetoric on sovereignty. While courts have introduced ‘soft’ limits on
parliamentary power, no decision has questioned Parliament’s ability to enact legislation
1
A V Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959) 3–4; Edward
Coke, The Institutes of the Laws of England (1644) pt 1, 97b; William Blackstone, Commentaries on the Laws
of England (Clarendon Press 1765–69) vol 1, 160.
2
Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 (CA); see also Madzimbamuto v Lardner-Burke
[1969] 1 AC 645 (PC).
3
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151; R (Jackson) v Attorney
General [2005] UKHL 56, [2006] 1 AC 262 (HL).
4
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 [43].
