Is Parliamentary Sovereignty Alive, Dying or Dead?

Abstract

The Supreme Court in the Miller cases confirmed without dissent that the doctrine of parliamentary sovereignty remains a fundamental element of the UK Constitution. This suggests that the doctrine is still alive, but various critics maintain that it is either dying or already dead. This article responds to three of them: Professor Nick Barber, and Professors MartinLoughlin and StevenTierney. Barber claims that parliamentary sovereignty was killed by the European Communities Act 1972 (UK) as applied by the courts. But the decision inFactortame is best explained by a manner and form theory of parliamentary sovereignty. Parliament’s legislative sovereignty was in effect subjected to a requirement of form, not substance: it could at any time override the Act, totally or partially, provided that it used express words.The decision not only preserved but enhanced parliamentary sovereignty, by recognising that Parliament hasthe powerto protect its standing commitments even from its own inadvertent transgressions. The frequent judicial refusal to enforce ouster clauses, on which Barber also relies, presents a greater challenge to parliamentary sovereignty. Most senior judges have so far stopped short of denying outright that Parliament has authority to enact such clauses. I recommend that Parliament should act prudently and not provoke them to cross that line. Loughlin and Tierney argue that because Parliament’s political authority hasrecently declined, the doctrine of parliamentary sovereignty must now be qualified, although most constitutional lawyers cannot comprehend this reality because they are befuddled by the doctrine. I show that the lawyers’ alleged confusions are non-existent, that it is Loughlin and Tierney who are confused, and that while Parliament’s legislative sovereignty depends in one sense on its political authority, the dependence is sufficiently loose that no qualification is yet needed.