Q. Critically discuss the classic account given by Dicey of the doctrine of Parliamentary
supremacy & its current relevance in the modern UK & its significance as a general
principle of constitution?
Ans.
The essay will critically discuss the traditional definition given by Dicey of Parliamentary supremacy, its
current relevance in the modern UK and its significance as a general principle of the UK constitution. The
common law doctrine of Parliamentary supremacy was defined by Professor AV Dicey as the unlimited
and exclusive law making competence of Parliament, which no other body can override.
Dicey viewed Parliamentary supremacy as important as the rule of law in supporting the UK and
guaranteed protection to individual rights and freedoms, as these are not laid out in a single written
document which can be called The UK Constitution. It could be argued that the unlimited power of
Parliament is therefore justified.
Parliamentary supremacy is not created by statute, but ‘rests on judicial interpretation of the unwritten
constitution: a higher-order law confers it, and must of necessity limit it’.
However, overtime, some limitations to this absolute power of Parliament have been identified. In the UK,
international law has effect only by virtue of an Act of Parliament, so in theory, Parliamentary supremacy
implies Parliament has the power to override international law.
Yet, in practice, Parliament’s intention is not to legislate against principles of International Law.
International law is also given effect by statutory interpretation, but if a provision of an Act of Parliament
is unclear or ambiguous, the Act will prevail and be given effect nonetheless, thereby asserting the
supremacy of Parliament.
Parliament can also override constitutional conventions. Yet, as conventions are designed to control the
use of power by government and to underpin the legal mechanism of government, it is presumed that the
Parliament will not legislate against a convention and risk a constitutional crisis.
The unlimited competence of Parliament includes making retrospective law; an example of this is the War
Damage Act 1965 which reversed the decision in Burmah Oil Co. v Lord Advocate. However, it is
assumed that Parliament will not legislate with retrospective effect, as doing so would be contrary to the
rule of law and unconstitutional, yet not unlawful.
Also, the power to make any law extends to passing or repealing acts considered of Constitutional
importance.It has also been recognised by academics that the sovereignty of Parliament is further asserted
by virtue of the Human Rights Act 1998 which incorporates the European Convention on Human Rights
into UK law, by conferring Parliament the same power to override the Convention.
Additionally, the Act establishes that legislation both primary and subordinate should be interpreted in
accordance with Convention rights, ensuring Parliament maintains its role as guardian of Convention
rights.
Further, when the courts interpret legislation in line with Convention rights, they are under an obligation
to apply the incompatible legislation and raise a declaration of incompatibility, but the incompatible
legislation remains valid until repealed or amended by Parliament, as law making is an exclusive
competence of Parliament.
supremacy & its current relevance in the modern UK & its significance as a general
principle of constitution?
Ans.
The essay will critically discuss the traditional definition given by Dicey of Parliamentary supremacy, its
current relevance in the modern UK and its significance as a general principle of the UK constitution. The
common law doctrine of Parliamentary supremacy was defined by Professor AV Dicey as the unlimited
and exclusive law making competence of Parliament, which no other body can override.
Dicey viewed Parliamentary supremacy as important as the rule of law in supporting the UK and
guaranteed protection to individual rights and freedoms, as these are not laid out in a single written
document which can be called The UK Constitution. It could be argued that the unlimited power of
Parliament is therefore justified.
Parliamentary supremacy is not created by statute, but ‘rests on judicial interpretation of the unwritten
constitution: a higher-order law confers it, and must of necessity limit it’.
However, overtime, some limitations to this absolute power of Parliament have been identified. In the UK,
international law has effect only by virtue of an Act of Parliament, so in theory, Parliamentary supremacy
implies Parliament has the power to override international law.
Yet, in practice, Parliament’s intention is not to legislate against principles of International Law.
International law is also given effect by statutory interpretation, but if a provision of an Act of Parliament
is unclear or ambiguous, the Act will prevail and be given effect nonetheless, thereby asserting the
supremacy of Parliament.
Parliament can also override constitutional conventions. Yet, as conventions are designed to control the
use of power by government and to underpin the legal mechanism of government, it is presumed that the
Parliament will not legislate against a convention and risk a constitutional crisis.
The unlimited competence of Parliament includes making retrospective law; an example of this is the War
Damage Act 1965 which reversed the decision in Burmah Oil Co. v Lord Advocate. However, it is
assumed that Parliament will not legislate with retrospective effect, as doing so would be contrary to the
rule of law and unconstitutional, yet not unlawful.
Also, the power to make any law extends to passing or repealing acts considered of Constitutional
importance.It has also been recognised by academics that the sovereignty of Parliament is further asserted
by virtue of the Human Rights Act 1998 which incorporates the European Convention on Human Rights
into UK law, by conferring Parliament the same power to override the Convention.
Additionally, the Act establishes that legislation both primary and subordinate should be interpreted in
accordance with Convention rights, ensuring Parliament maintains its role as guardian of Convention
rights.
Further, when the courts interpret legislation in line with Convention rights, they are under an obligation
to apply the incompatible legislation and raise a declaration of incompatibility, but the incompatible
legislation remains valid until repealed or amended by Parliament, as law making is an exclusive
competence of Parliament.
