PARLIAMENTARY SOVEREIGNTY (6)

The Orthodox (Diceyan) Doctrine of Parliamentary Sovereignty

The classic formulation comes from A.V. Dicey, in An Introduction to the Study of the Law of the Constitution (1885). Dicey is the most influential constitutional scholar in UK history.

Dicey’s famous definition:

“The principle of parliamentary sovereignty means neither more nor less than this: namely that Parliament has the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”

This is the orthodox or traditional view.

What Parliamentary Sovereignty Means

A. Parliament is the supreme law‑making authority

• Parliament = King + House of Commons + House of Lords

• Together, they form the Crown in Parliament, the sovereign legislature.

B. Parliament can make or unmake any law

There are no legal limits on subject matter. Parliament could (in theory):

• Abolish the monarchy

• Ban all speech

• Change the voting system

• Repeal the Human Rights Act

• Reverse any previous Act

• Change its own composition

• Redraw the constitution entirely

This is theoretical power — in practice, political and moral limits exist.

C. No Parliament can bind a future Parliament

• Parliament cannot pass a law that future Parliaments cannot repeal.

• Every Parliament is legally sovereign.

D. No court or body can override an Act of Parliament

• Courts must apply Acts of Parliament, even if unjust or unconstitutional.

• No judicial power of “strike‑down” exists (unlike the USA).

This is the core of the UK constitution.

Theoretical vs Practical Limits

Dicey’s doctrine is legal, not political.

Legal limits:

• None.

• Parliament’s power is unlimited in law.

Practical limits:

• Public opinion

• Political pressure

• International obligations (UN, ECHR)

• Electoral consequences

• Moral constraints

• Devolution settlements

• Economic realities

These do not legally restrict Parliament, but they influence what Parliament chooses to do.

Judicial Affirmation — Jackson v Attorney General [2005] UKHL 56

This is the leading modern case on parliamentary sovereignty.

Facts

• The Hunting Act 2004 banned fox hunting.

• It was passed using the Parliament Acts 1911 and 1949, bypassing the House of Lords.

• Claimants argued:

  • The 1949 Act was invalid because it was passed using the 1911 Act procedure.

  • Therefore the Hunting Act was invalid.

Held

• The House of Lords upheld the validity of the 1949 Act.

• Therefore, the Hunting Act 2004 was valid.

• The Parliament Acts were a legitimate way for the Commons to legislate without the Lords.

Significance

Lord Bingham stated:

“The bedrock of the British constitution is… the supremacy of the Crown in Parliament.”

This reaffirms:

• Parliament can make or unmake any law.

• Parliament can change its own law‑making procedures.

• No court can question the validity of an Act of Parliament.

Why Jackson matters

• It confirms the orthodox Diceyan doctrine.

• It shows that even when Parliament uses unusual procedures, its Acts remain supreme.

• It hints (in obiter) that sovereignty may be a common law principle, but the core doctrine remains intact.

Key Principles of Parliamentary Sovereignty

1. Unlimited law‑making power

Parliament can legislate on any subject.

2. No judicial review of primary legislation

Courts cannot strike down Acts of Parliament.

3. No entrenchment

No Parliament can bind its successors.

4. Acts of Parliament are the highest form of law

All other sources (common law, prerogative, conventions) are inferior.

These principles form the cornerstone (or “keystone”) of the UK constitution.

Why Parliamentary Sovereignty Is the “Bedrock” of the Constitution

Because the UK has:

• No codified constitution

• No constitutional court

• No entrenched rights

• No higher law

→ The entire constitutional order rests on the supremacy of Parliament.

Without parliamentary sovereignty, the UK constitution would have no clear hierarchy of norms.

How Powerful Is Parliament? — Illustrative Examples of Sovereignty

These classic examples are used by constitutional scholars to show the theoretical unlimited power of Parliament, contrasted with the practical limits imposed by reality.

Sir Leslie Stephen’s “Blue‑Eyed Babies” Hypothetical (1882)

What Stephen said

Sir Leslie Stephen famously argued that Parliament could pass a law ordering all blue‑eyed babies to be killed, and it would still be a valid Act of Parliament.

Purpose of the example

• To show the theoretical extremity of parliamentary sovereignty.

• Parliament’s power is legally unlimited, even if morally abhorrent.

Key idea

• Courts cannot refuse to apply an Act of Parliament because it is immoral, unjust, or oppressive.

• The only limits are political, moral, and practical, not legal.

Why this matters

It demonstrates the orthodox Diceyan doctrine:

• Parliament can make any law.

• No court or body can override an Act of Parliament.

Jennings’ “Smoking in Paris” Example (1959)

The question

Sir Ivor Jennings asked:

Could Parliament ban smoking in Paris?

Legal answer

• Yes, Parliament could pass such a law.

• Legally, nothing stops Parliament from legislating about Paris, New York, or Beijing.

Practical answer

• The law would have no effect outside the UK.

• Parliament’s jurisdiction is territorial.

Key idea

Parliament is sovereign within the UK, but cannot control foreign states.

Why this matters

It shows the difference between:

• Theoretical sovereignty (unlimited legal power)

• Practical sovereignty (limited by geography, politics, and international relations)

Burmah Oil v Lord Advocate (1965) and the War Damages Act 1965

This is one of the strongest real‑world examples of parliamentary supremacy.

Facts

• During WWII, British forces destroyed Burmah Oil’s installations to prevent them falling into Japanese hands.

• Burmah Oil sued for compensation.

• The House of Lords held that compensation was payable under the common law.

Parliament’s response

Parliament immediately passed the War Damages Act 1965, which:

• Overturned the court’s decision, and

• Did so retrospectively (affecting past events).

Section 1 of the Act

“No person shall be entitled at common law to receive… compensation… whether before or after the passing of this Act…”

Significance

• Parliament can reverse court decisions.

• Parliament can legislate retrospectively.

• Courts must apply the statute even if it contradicts their own earlier ruling.

Key idea

This case shows Parliament’s supremacy over the courts.

Parliament vs International Law

Parliamentary sovereignty means international law does not override Acts of Parliament.

Three key cases illustrate this:

A. Mortensen v Peters (1906)

B. Cheney v Conn (1968)

C. R v Jordan (1967)

Mortensen v Peters (1906)

Facts

• A Danish fisherman was prosecuted under UK law for fishing in waters that, under international law, were not UK territory.

Held

• The Scottish court said it must apply UK law, even if it contradicts international law.

Significance

• Courts must apply Acts of Parliament even if they breach international law.

Cheney v Conn (1968)

Facts

• A taxpayer argued that his taxes funded nuclear weapons, violating the Geneva Conventions.

Held

• Acts of Parliament are supreme.

• International law cannot override domestic legislation.

Significance

• Parliament can legislate contrary to international obligations, and the courts must still enforce it.

R v Jordan (1967)

Facts

• Defendant argued his conviction violated human rights principles.

Held

• Before the Human Rights Act 1998, human rights could not override Acts of Parliament.

Significance

• Parliament’s word prevails over human rights unless Parliament chooses otherwise.

European Union Law — A Major Practical Limit on Parliamentary Sovereignty

When the UK joined the European Economic Community (EEC) in 1973, it accepted that EU law would take precedence over conflicting national law. This was done through a UK statute: the European Communities Act 1972 (ECA 1972).

Key point

EU law did not override Parliament because the EU was “more powerful”.
It overrode Parliament because Parliament itself chose to give EU law that effect.

This distinction is essential for exams.

R (Factortame Ltd) v Secretary of State for Transport (No.2) [1991]

A landmark case showing EU law’s supremacy in action.

Facts

• The Merchant Shipping Act 1988 restricted foreign‑owned fishing boats from registering in the UK.

• Spanish fishermen (Factortame Ltd) argued this breached EU law (freedom of establishment).

Held

• The House of Lords disapplied the 1988 Act because it conflicted with EU law.

• This was the first time UK courts refused to apply an Act of Parliament.

Significance

• EU law had practical supremacy over UK law.

• Courts could disapply Acts of Parliament.

• This was only possible because Parliament had voluntarily accepted EU supremacy through the ECA 1972.

Key principle

EU law limited sovereignty in practice, but not in theory.

Parliament could always:

• repeal the ECA 1972,

• withdraw from the EU.

And it did — through the European Union (Withdrawal) Act 2018 and Brexit in 2020.

Human Rights Act 1998 — A “Soft” Limit on Sovereignty

The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law.

Key features

• Courts can review legislation for compatibility with human rights.

• But courts cannot strike down Acts of Parliament.

• Instead, they can issue a declaration of incompatibility under section 4.

This preserves formal sovereignty while introducing political pressure.

A v Secretary of State for the Home Department [2004] (Belmarsh Case)

Facts

• Under the Anti‑terrorism, Crime and Security Act 2001, foreign terror suspects were detained indefinitely without trial.

• They challenged this under Article 5 ECHR (right to liberty).

Held

• The House of Lords declared the detention scheme incompatible with human rights.

• They could not strike down the Act, but they issued a declaration of incompatibility.

Result

• Parliament amended the law.

• This shows:

  • Courts cannot override Parliament,

  • But they can force political accountability.

Significance

• The HRA introduced judicial oversight.

• Courts gained a constitutional voice, even if not a veto.

• It blurred the traditional Diceyan model of sovereignty.

What These Developments Show About Sovereignty

A. EU Law (1973–2020)

• Hard limit in practice: courts could disapply Acts of Parliament.

• But sovereignty remained theoretical and recoverable:

  • Parliament could repeal the ECA 1972.

  • Parliament could leave the EU.

B. Human Rights Act 1998

• Soft limit: courts cannot strike down Acts.

• But they can:

  • interpret legislation compatibly with rights (s.3),

  • issue declarations of incompatibility (s.4),

  • influence Parliament politically.

C. Overall

Parliament remains legally sovereign, but:

• EU membership created practical supremacy of EU law.

• The HRA created political and moral constraints.

• Courts gained a stronger constitutional role.

• Sovereignty today is shared, constrained, and politically conditioned, not absolute in practice.

Conclusion

Parliamentary sovereignty survives, but it is no longer absolute in practice.
Modern constitutionalism has introduced legal, political, and moral pressures that shape how Parliament uses its power.

Why Is Parliament So Powerful? — The Three Foundations of Sovereignty

Parliament’s supremacy is not an accident. It rests on three pillars:

1. Historical foundations

2. Democratic legitimacy

3. Judicial acceptance

Together, these make Parliament the supreme law‑making authority in the UK.

Historical Foundation: The Glorious Revolution 1688–89A.

What happened?

The Glorious Revolution removed the idea of absolute monarchy. King James II was deposed, and William III and Mary II took the throne on Parliament’s terms.

B. The Bill of Rights 1689

This settlement established that:

• The monarch could no longer rule by prerogative alone.

• Laws required the consent of Parliament.

• Parliament—not the Crown—became the central source of legal authority.

C. Why this matters

This moment is the birth of parliamentary sovereignty.

It created the principle that:

• The Crown in Parliament (King + Commons + Lords) is the supreme legislature.

• No other institution—neither monarch nor court—can override an Act of Parliament.

Key idea

The Glorious Revolution shifted sovereignty from the monarch to Parliament, and that constitutional settlement hardened over centuries into the modern doctrine.

Democratic Legitimacy: “We the People” Make Parliament Powerful

A. Parliament derives authority from the electorate

The House of Commons is elected. MPs are chosen by the people and can be removed at the next general election.

This gives Parliament:

• Political legitimacy

• Moral authority

• Democratic consent

B. Why this matters

Because Parliament is democratically accountable, the public accepts that:

• Parliament should be the supreme law‑maker

• Parliament’s decisions carry democratic weight

• Parliament’s authority is legitimate because it comes from the people

C. Contrast with the courts

Judges are not elected.
They cannot claim democratic legitimacy.
This is one reason courts do not override Acts of Parliament.

Key idea

Parliament is powerful because the electorate gives it power.

Judicial Acceptance: Courts Recognise Parliamentary Sovereignty

A. No written constitution

The UK has no codified constitution.
There is no higher law above Acts of Parliament.

B. Courts therefore treat Acts of Parliament as supreme

Judges have historically accepted Dicey’s rule:

• Courts must apply Acts of Parliament.

• Courts cannot strike down Acts of Parliament.

• Courts cannot question the validity of an Act.

C. Why?

Because without a written constitution:

• There is no legal text that can override Parliament.

• Courts cannot invent limits on Parliament’s power.

• The constitution is based on statute + common law, and statute is superior.

D. Judicial statements

In Jackson v Attorney General (2005), Lord Bingham reaffirmed:

“The bedrock of the British constitution is… the supremacy of the Crown in Parliament.”

Key idea

Parliament is powerful because the courts accept its supremacy.

Bringing It Together — Why Parliament Is Supreme

A. Historical legitimacy

• The Glorious Revolution placed Parliament at the centre of the constitution.

• The Bill of Rights 1689 entrenched Parliament’s law‑making authority.

B. Democratic legitimacy

• Parliament is elected by the people.

• The electorate can remove MPs.

• This gives Parliament moral and political authority.

C. Judicial legitimacy

• Courts accept parliamentary sovereignty as a fundamental constitutional principle.

• There is no written constitution to override Parliament.

• Judges apply Acts of Parliament even if unjust or unpopular.

D. Result

Parliament is the supreme law‑maker because:

• History put it there

• Democracy sustains it

• Courts enforce it

This is why parliamentary sovereignty is the cornerstone of the UK constitution.

Consequences of Parliamentary Sovereignty — Full Explanation

Parliamentary sovereignty is not just a theory — it has practical consequences for how the UK constitution works. These consequences explain why Parliament is the supreme law‑making authority and why courts cannot override Acts of Parliament.

• Parliament Cannot Bind Its Successors

• The Enrolled Bill Rule

• The Doctrine of Implied Repeal

• Express Repeal

Parliament Cannot Bind Its Successors

(No entrenchment — the constitution is flexible)

This is a core part of the orthodox Diceyan doctrine of Parliamentary Sovereignty.

Key principle

• Every Parliament is sovereign.

• No Parliament can pass a law that future Parliaments cannot repeal or amend.

• Therefore, entrenchment is impossible under orthodox theory.

Why this matters

• The UK constitution is flexible.

• Constitutional change can happen through ordinary Acts of Parliament, not special procedures.

Examples

• Parliament repealed the European Communities Act 1972 through the European Union (Withdrawal) Act 2018.

• Parliament could repeal the Human Rights Act 1998 if it wished.

Exam‑ready explanation

This principle ensures that each new Parliament is free, preventing past Parliaments from tying the hands of future democratic majorities.

The Enrolled Bill Rule

(Courts cannot question the validity of an Act of Parliament)

The enrolled bill rule is a judge‑made doctrine that protects parliamentary sovereignty by preventing courts from questioning how an Act was passed.

Once a Bill has:

• passed both Houses,

• received Royal Assent, and

• been placed on the Parliamentary Roll,

it becomes an enrolled Act, and no court may question its validity.

Key Cases Establishing the Enrolled Bill Rule

1. Ex parte Canon Selwyn (1872)

Facts:
Canon Selwyn argued the Irish Church Act 1869 was invalid because it breached the Coronation Oath.

Held:
Chief Justice Cockburn stated:

“There is no judicial body in the country by which the validity of an Act of Parliament could be questioned.”

Significance:

• Courts cannot strike down Acts of Parliament.

• Parliament is superior to the courts.

2. Edinburgh & Dalkeith Railway v Wauchope (1842)

Facts:
A landowner argued a private Act was invalid because he had not been notified before it passed.

Held:
Courts cannot question how Parliament passed an Act.

Significance:

• Courts cannot investigate procedural irregularities in Parliament.

• Once enacted, an Act is binding.

3. BRB v Pickin [1974]

Facts:
Pickin argued a private Act was obtained by fraud and should be invalid.

Held:
Courts cannot investigate parliamentary proceedings or motives.

Significance:

• Modern restatement of the enrolled bill rule.

• Protects parliamentary privilege and sovereignty.

The Doctrine of Implied Repeal

(Later Acts override earlier inconsistent Acts)

Key principle

If two Acts conflict, the later Act prevails.
This is because the later Act represents the will of the most recent Parliament.

Why this matters

• Prevents entrenchment.

• Ensures Parliament remains supreme at all times.

• Keeps the constitution flexible.

Key Cases of the Doctrine of Implied Repeal

1. Vauxhall Estates v Liverpool Corporation [1932]

Held:
The Housing Act 1925 impliedly repealed inconsistent provisions in the Acquisition of Land Act 1919.

Significance:

• Parliament cannot bind future Parliaments.

• Later statutes override earlier ones.

2. Ellen Street Estates v Minister of Health [1934]

Held:
Earlier compensation rights could not bind later Parliaments.

Significance:

• Reinforces Dicey’s doctrine.

• No Parliament can entrench legislation.

3. Thoburn v Sunderland City Council [2002] — “Metric Martyrs”

Held:
Some Acts are constitutional statutes (e.g., ECA 1972, HRA 1998).
These cannot be impliedly repealed, only expressly repealed.

Significance:

• A modern qualification to implied repeal.

• Suggests a hierarchy of statutes.

• But Parliament remains sovereign because it can still expressly repeal any statute.

Express Repeal

(Parliament can repeal any law clearly and explicitly)

Key principle

Parliament can expressly repeal any earlier Act by stating so in a new Act.

Example: Repeal of the European Communities Act 1972

• Section 1 of the European Union (Withdrawal) Act 2018 expressly repealed the ECA 1972.

• This ended the supremacy of EU law in the UK.

Why express repeal matters

• It shows Parliament’s ultimate control over the legal system.

• Even “constitutional statutes” (Thoburn) can be repealed expressly.

Summary — The Consequences of Parliamentary Sovereignty

1. No Parliament can bind its successors

• No entrenchment

• Flexible constitution

• Future Parliaments can repeal anything

2. Enrolled Bill Rule

• Courts cannot question the validity of Acts

• Parliamentary proceedings are off‑limits

• Protects sovereignty and privilege

3. Implied Repeal

• Later Acts override earlier ones

• Ensures Parliament remains supreme

• Modern limit: constitutional statutes (Thoburn)

4. Express Repeal

• Parliament can repeal any law explicitly

• Used to repeal the ECA 1972

• Confirms Parliament’s ultimate authority

Challenges to Orthodox or Diceyan Sovereignty

Dicey’s classic doctrine — that Parliament can make or unmake any law, and that no court or body can override an Act of Parliament — has been placed under sustained pressure by four major constitutional developments:

1. EU law

2. Human Rights

3. Devolution

4. The common law

Each of these developments has introduced practical, political, or legal constraints on Parliament’s supremacy, even if the doctrine remains intact in theory.

EU Law — The Most Significant Practical Challenge (1973–2020)

Why it challenged sovereignty

When the UK joined the EEC in 1973, Parliament enacted the European Communities Act 1972, giving EU law direct effect and supremacy over UK law.

Key case: Factortame (No.2) [1991]

• The House of Lords disapplied the Merchant Shipping Act 1988 because it conflicted with EU law.

• This was the first time UK courts refused to apply an Act of Parliament.

Significance

• EU law had practical supremacy over UK law.

• Courts could disapply Acts of Parliament.

• This was only possible because Parliament chose to allow it through the ECA 1972.

Why it did not destroy sovereignty

• Parliament remained sovereign in theory because it could repeal the ECA 1972.

• It did so through the European Union (Withdrawal) Act 2018.

Conclusion

EU law created the strongest real‑world limit on sovereignty, but it was self‑imposed and reversible.

Human Rights — A “Soft” Constitutional Limit

The Human Rights Act 1998 (HRA) incorporated the ECHR into UK law.

Why it challenged sovereignty

• Courts gained the power to review legislation for compatibility with human rights.

• Courts can issue declarations of incompatibility (s.4).

• This creates political pressure on Parliament to amend laws.

Key case: A v Secretary of State (Belmarsh) [2004]

• Indefinite detention of terror suspects was declared incompatible with Article 5 ECHR.

• Parliament later changed the law.

Significance

• Courts cannot strike down Acts of Parliament.

• But they can publicly declare that Parliament has breached fundamental rights.

• This shifts the political balance and strengthens judicial oversight.

Conclusion

The HRA does not legally limit sovereignty, but it politically constrains Parliament and enhances judicial influence.

Devolution — A Political and Constitutional Constraint

Since 1998, the UK has devolved power to:

• Scottish Parliament

• Welsh Senedd

• Northern Ireland Assembly

Why it challenges sovereignty

• Devolved legislatures can make primary legislation.

• Westminster retains legal supremacy, but political reality makes it difficult to override devolved laws.

Key points

• The Scotland Act 1998 declares the Scottish Parliament “permanent” (s.63A).

• But Westminster can still legally repeal it — sovereignty remains intact.

• The Sewel Convention states Westminster will not normally legislate on devolved matters without consent.

Significance

• Devolution creates political limits on Parliament.

• It is no longer politically realistic to legislate for Scotland or Wales without consent.

Conclusion

Devolution weakens sovereignty in practice, not in law.

The Common Law — Judicial Re‑interpretation of Sovereignty

In recent decades, senior judges have suggested that sovereignty is a common law principle, not an untouchable absolute.

Key case: Jackson v Attorney General [2005]

Several Law Lords hinted that:

• Parliamentary sovereignty is a judicial construct.

• Courts might refuse to recognise legislation that undermines fundamental constitutional principles.

Examples of judicial comments

• Lord Steyn: sovereignty is “a construct of the common law”.

• Baroness Hale: courts may need to consider “the rule of law” as a limit.

• Lord Hope: sovereignty is no longer absolute.

Why this matters

• Courts are beginning to assert a constitutional role.

• They suggest sovereignty may evolve through common law principles such as:

  • the rule of law,

  • judicial review,

  • access to justice.

Conclusion

This is the most theoretical challenge — but it signals a shift toward a more balanced constitution.

Parliamentary Sovereignty and the EU — Full Explanation

EU membership created the most significant practical challenge to orthodox Parliamentary Sovereignty in modern UK constitutional history. But crucially, this challenge existed only because Parliament allowed it through the European Communities Act 1972 (ECA 1972).

EU Law Had Force in the UK Only Because of the ECA 1972

Key point

EU law did not override Parliament because the EU was “more powerful”.
It overrode Parliament because Parliament voluntarily gave EU law supremacy.

Democratic consent

• The UK joined the EEC in 1973 through the ECA 1972.

• The public confirmed membership in a 1975 referendum.

• The public withdrew consent in the 2016 Brexit referendum.

• Parliament then repealed the ECA 1972 through the European Union (Withdrawal) Act 2018.

This shows sovereignty remained theoretical and recoverable.

Background: How the EU Works

The EU is not a body with unlimited power. It can legislate only within its competences, set out in the Treaty on the Functioning of the EU (TFEU).

Key EU institutions

• Council of the EU — government ministers from each Member State; major role in legislation.

• European Commission — proposes legislation; guardian of the treaties.

• European Parliament — directly elected; co‑legislator with the Council.

• Court of Justice of the EU (CJEU) — interprets EU law; binding rulings.

EU membership

• After Brexit, the EU has 27 Member States (Croatia joined in 2013/14).

Types of EU Law and Their Effect in Member States

A. Treaty Articles

• Directly applicable

• Can be directly effective (horizontal + vertical)

B. Regulations

• Automatically part of national law

• No need for domestic legislation

• Directly effective

C. Directives

• Bind Member States as to the result

• Must be implemented within a time limit

• Can be vertically directly effective (against the state) if:

  • clear,

  • precise,

  • unconditional.

Direct effect

Some EU laws can be enforced directly in national courts by individuals.

The European Communities Act 1972 — The Source of EU Supremacy

The ECA 1972 was the gateway through which EU law entered the UK legal system.

Section 2(1) ECA 1972

• All directly applicable EU law (Treaties, Regulations) became automatically part of UK law.

• This was law not made by Parliament, but given effect by Parliament.

Section 2(4) ECA 1972

• Required UK courts to give priority to EU law over any conflicting UK statute.

• Applied to “any enactment passed or to be passed”.

Why this mattered

It looked like the 1972 Parliament was trying to bind future Parliaments — something Dicey said was impossible.

But in reality:

• Parliament could always repeal the ECA 1972.

• And it eventually did.

Factortame — The Case That Changed Everything

R v Secretary of State for Transport, ex parte Factortame (No.2) [1991]Facts

• The Merchant Shipping Act 1988 restricted fishing vessel registration to British citizens or companies with 75% British ownership.

• Spanish fishermen (Factortame Ltd) argued this breached EU law on freedom of establishment.

Legal journey

• High Court → Court of Appeal → House of Lords

• The House of Lords made a preliminary reference to the CJEU.

• The CJEU confirmed EU law supremacy.

Held (House of Lords)

• The House of Lords disapplied the Merchant Shipping Act 1988.

• This was the first time a UK court refused to apply an Act of Parliament.

Significance

• EU law had practical supremacy over UK law.

• Courts could disapply Acts of Parliament.

• This was revolutionary in UK constitutional law.

But…

This supremacy existed only because Parliament allowed it through the ECA 1972.

Did the 1972 Parliament Bind Its Successors?

Short answer: No.

• Parliament remained sovereign because it could always repeal the ECA 1972.

• It did so in 2018, ending EU law supremacy.

Key idea

EU law limited sovereignty in practice, not in theory.

Overall

EU membership created the strongest real‑world challenge to Diceyan sovereignty, but Parliament remained sovereign because it retained the legal power to withdraw from the EU.

Why Was EU Membership a Challenge to Orthodox (Diceyan) Parliamentary Sovereignty?

The answer really is simple:

For the first time in UK constitutional history, LAW NOT MADE IN THE UK became directly applicable in the UK courts.

This was unprecedented. Until 1973, all law applied in the UK came from:

• Parliament (statute), or

• the common law (judicial decisions).

EU membership changed that.

But crucially:
This only happened because Parliament itself allowed it through the European Communities Act 1972 (ECA 1972).

The European Communities Act 1972 — The Source of the Challenge

The ECA 1972 was the “gateway” through which EU law entered the UK legal system. Two sections were constitutionally explosive:

A. Section 2(1) ECA 1972 — EU Law Automatically Became UK Law

B. Section 2(4) ECA 1972 — EU Law Took Priority Over UK Law

Section 2(1) ECA 1972 — EU Law Automatically Became UK Law

Section 2(1) stated that all rights, obligations, and remedies arising under the EU Treaties:

“shall be recognised and available in law, and be enforced, allowed and followed accordingly… without further enactment.”

Why this was revolutionary

• EU law became part of UK law automatically.

• Parliament did not need to pass a new Act each time the EU made law.

• This contradicted the orthodox Diceyan idea that only Parliament makes law.

This was the first major challenge to Parliamentary Sovereignty.

Section 2(4) ECA 1972 — EU Law Took Priority Over UK Law

Section 2(4) stated that:

“Any enactment passed or to be passed… shall be construed and have effect subject to the foregoing provisions of this section.”

Why this mattered

• This meant EU law was supreme over UK law.

• Even future Acts of Parliament (“to be passed”) had to be interpreted consistently with EU law.

Did the 1972 Parliament bind its successors?

Dicey said this was impossible.
But section 2(4) looked like an attempt to do exactly that.

This set the stage for the constitutional explosion in Factortame.

The Factortame Litigation — The Constitutional Earthquake

Facts

• Parliament passed the Merchant Shipping Act 1988 to stop “quota‑hopping” by Spanish fishing companies.

• The Act required 75% British ownership to register a fishing vessel.

• Spanish companies argued this breached EU law (non‑discrimination on nationality).

They sued in UK courts using direct effect.

The Key Constitutional Moment: Interim Relief

The Spanish companies asked UK courts to disapply the Merchant Shipping Act 1988 temporarily so they could keep fishing.

This request was shocking because:

Courts had never before disapplied an Act of Parliament.

The House of Lords initially refused, but made a preliminary reference to the CJEU.

CJEU’s answer

• National courts must grant interim relief if necessary to protect EU rights.

House of Lords’ response

The House of Lords then DISAPPLIED the Merchant Shipping Act 1988.

This was the first time in history that a UK court refused to apply an Act of Parliament.

Why Factortame Was a Direct Challenge to Dicey

Let’s test it against the consequences of sovereignty:

A. Did the 1972 Parliament bind the 1988 Parliament?

B. What happened to the Enrolled Bill Rule?

C. What happened to Implied Repeal?

Did the 1972 Parliament bind the 1988 Parliament?

Yes, in practice.
The 1988 Act was overridden by the 1972 Act.

This contradicts Dicey’s rule that:

• No Parliament can bind its successors.

• Later Acts should impliedly repeal earlier ones.

But here, the earlier Act (ECA 1972) prevailed.

What happened to the Enrolled Bill Rule?

The rule says:

• Courts cannot question a properly enacted Act of Parliament.

But in Factortame:

• The House of Lords disapplied a properly enacted Act.

This was unprecedented.

What happened to Implied Repeal?

Under Dicey:

• The later Act (Merchant Shipping Act 1988) should prevail.

But in Factortame:

• The earlier Act (ECA 1972) prevailed.

This reversed the orthodox hierarchy.

Lord Bridge’s Explanation — “Voluntary” Limitation

Lord Bridge tried to calm the constitutional panic:

“Whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972 was entirely voluntary.”

His argument:

• Parliament chose to accept EU supremacy.

• Parliament could always repeal the ECA 1972.

• Therefore, sovereignty was not destroyed.

This is the “continuing sovereignty” view.

Professor Wade’s Response — A “Constitutional Revolution”

Professor Sir William Wade disagreed dramatically.

He argued:

• Factortame was a revolution, not an evolution.

• Courts had accepted a new rule: EU law is supreme over UK law.

• This was not something Parliament could simply reverse.

• It changed the rule of recognition (the fundamental rule of the legal system).

Wade believed sovereignty had been transformed, not merely limited.

Hoffmann J’s View — Parliament “Surrendered” Sovereignty

In Stoke-on-Trent CC v B&Q (1991), Hoffmann J stated:

“The EU Treaty is the supreme law of this country… Parliament has surrendered its sovereign right to legislate contrary to the Treaty.”

This was a bold judicial acknowledgment that sovereignty had been practically curtailed.

So Was Diceyan Sovereignty Destroyed?

Legally (in theory): No

• Parliament could always repeal the ECA 1972.

• And it did, through the European Union (Withdrawal) Act 2018.

Practically (in reality): Yes

• For 47 years, UK courts treated EU law as supreme.

• Acts of Parliament were disapplied.

• Implied repeal did not operate normally.

• The enrolled bill rule was bypassed.

Conclusion

EU membership created the strongest real‑world challenge to Diceyan sovereignty in UK history.

What of Orthodox or Diceyan Sovereignty?

The orthodox Diceyan doctrine says:

• Parliament can make or unmake any law.

• No Parliament can bind its successors.

• Courts cannot question or disapply an Act of Parliament.

• Later Acts impliedly repeal earlier inconsistent Acts.

• Courts must apply Acts of Parliament even if unjust or unconstitutional.

EU membership — and especially Factortame — challenged every single one of these principles.

Did the 1972 Parliament Successfully Bind the 1988 Parliament?

Yes — in practice.

• The European Communities Act 1972 required UK courts to give priority to EU law.

• The Merchant Shipping Act 1988 conflicted with EU law.

• Under orthodox sovereignty, the later Act (1988) should prevail.

But in Factortame, the courts disapplied the 1988 Act because of the 1972 Act.

This means:

The 1972 Parliament bound the 1988 Parliament — something Dicey said was impossible.

This was the first major crack in orthodox sovereignty.

What Happened to the Enrolled Bill Rule?

The enrolled bill rule says:

Once an Act is properly passed and appears on the Parliamentary Roll, no court may question its validity.

But in Factortame:

• The House of Lords disapplied a fully valid Act of Parliament.

• This was unprecedented.

• It contradicted Pickin, Wauchope, and Canon Selwyn.

So:

The enrolled bill rule was effectively suspended in cases involving EU law.

This was another major break from Dicey.

What Happened to Implied Repeal?

Under orthodox sovereignty:

• If two Acts conflict, the later Act impliedly repeals the earlier one.

But in Factortame:

• The earlier Act (ECA 1972) prevailed over the later Act (MSA 1988).

• Implied repeal did not operate normally.

This reversed the Diceyan hierarchy.

What Happened to Orthodox Sovereignty Overall?

EU membership created a practical limit on sovereignty:

• Courts could disapply Acts of Parliament.

• Parliament appeared to bind its successors.

• Implied repeal did not apply.

• The enrolled bill rule was bypassed.

This is why Factortame is considered one of the most important constitutional cases in UK history.

Lord Bridge’s View — “No Problem, It Was Voluntary”

Lord Bridge tried to downplay the constitutional shock:

Parliament voluntarily accepted EU supremacy in 1972.
Therefore, the limitation on sovereignty was entirely voluntary.

His argument:

• Parliament chose to give EU law priority.

• Parliament could always repeal the ECA 1972.

• Therefore, sovereignty was not destroyed — just exercised differently.

This is the continuing sovereignty view.

Professor Wade’s View — A “Constitutional Revolution”

Professor Sir William Wade strongly disagreed.

He argued:

• Factortame was a constitutional revolution.

• The courts accepted a new rule: EU law is supreme over UK law.

• This changed the rule of recognition (the fundamental rule of the legal system).

• Parliament could not simply reverse this by ordinary legislation.

Wade believed sovereignty had been transformed, not merely limited.

Hoffmann J’s View — Parliament “Surrendered” Sovereignty

In Stoke-on-Trent CC v B&Q (1991), Hoffmann J stated:

“The EU Treaty is the supreme law of this country… Parliament has surrendered its sovereign right to legislate contrary to the Treaty.”

This was a bold judicial acknowledgment that sovereignty had been practically curtailed.

Where Are We Now? — The Thoburn Development

After Factortame, the next major development came in:

Thoburn v Sunderland City Council [2002] — “The Metric Martyrs”

Laws LJ introduced the idea of constitutional statutes.

What he said

There are two types of statutes:

A. Ordinary statutes

• Can be impliedly repealed.

B. Constitutional statutes

• Cannot be impliedly repealed.

• Can only be repealed by express words.

Examples of constitutional statutes

• Bill of Rights 1689

• Act of Union 1707

• Representation of the People Acts

• European Communities Act 1972

• Human Rights Act 1998

• Scotland Act 1998

• Government of Wales Act 1998

Why this matters

This is a modern limit on orthodox sovereignty.

It means:

Parliament can still repeal anything — but must do so expressly when dealing with constitutional statutes.

This creates a hierarchy of statutes, something Dicey denied.

Supreme Court Approval of Thoburn

The idea of constitutional statutes has been approved or endorsed in:

• H v Lord Advocate [2012] UKSC 24

• R (HS2 Action Alliance) [2014] UKSC 3

• R (Miller) [2017] UKSC 5

The courts now recognise that some statutes have special constitutional status.

This is a major evolution in sovereignty.

Lord Denning’s Earlier Hint — Macarthys v Smith (1976)

Lord Denning anticipated this development:

If Parliament expressly repudiates the Treaty, courts must follow the new Act.

This supports the idea that:

• Parliament remains sovereign,

• but must use express words to override constitutional statutes.

Brexit — The Final Word

The UK left the EU after the 2016 referendum.

Parliament expressly repealed the ECA 1972 through the European Union (Withdrawal) Act 2018.

This proves:

• Parliament remained sovereign in theory, because it could repeal the ECA.

• But sovereignty was practically limited for 47 years.

Brexit and Parliamentary Sovereignty — Full Explanation

Brexit is the ultimate test case for whether orthodox (Diceyan) Parliamentary Sovereignty survived the challenges posed by EU membership.

Dicey said Parliament can:

• Make or unmake any law

• Bind no future Parliament

• Be bound by no other body

EU membership challenged all three.
Brexit is the moment where we see whether sovereignty was merely limited in practice or destroyed in principle.

The European Referendum Act 2015

This Act authorised the 2016 referendum.
The question was:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

Results

• 51.9% Leave

• 48.1% Remain

• Turnout: 72.2%

• Leave votes: 17.4 million

• Remain votes: 16.1 million

The referendum was advisory, not legally binding — but politically impossible to ignore.

The European Union (Withdrawal) Act 2018

This is the statute that legally enabled Brexit.

Section 1 — Express Repeal of the ECA 1972

“The European Communities Act 1972 is repealed on exit day.”

This is crucial.

• Parliament expressly repealed the ECA 1972.

• This proves Parliament remained sovereign in theory, because it could undo the 1972 Act.

Exit day

Originally: 29 March 2019
Later changed to: 31 January 2020

Sections 2–4 — Retained EU Law

Most EU law was kept temporarily as retained EU law, to avoid legal chaos.

Section 5 — Supremacy of EU Law

Section 5 explicitly acknowledges:

EU law was supreme in the UK before exit day.

This is Parliament itself admitting that the ECA 1972 did limit orthodox sovereignty.

This is constitutionally significant.

The European Union (Withdrawal Agreement) Act 2020

This Act implemented the Withdrawal Agreement and created an 11‑month transition period:

• EU law still applied

• UK still paid into the EU budget

• UK was no longer a Member State

• Ended on 31 December 2020

From 1 January 2021, new EU law no longer applied in the UK.

Retained EU Law (Revocation and Reform) Act 2023

This Act radically reshaped the post‑Brexit legal landscape.

Key reforms

• Abolished the supremacy of EU law

• Abolished general principles of EU law

• Gave courts greater powers to depart from retained EU case law

• Gave ministers broad powers to revoke, restate, or replace EU‑derived legislation

• Renamed retained EU law as “assimilated law”

This is Parliament reasserting sovereignty in a very strong form.

So… Have We “Taken Back Control”?

This is the politically charged question.

Legally (in theory): Yes

Brexit proves:

• Parliament could repeal the ECA 1972

• Parliament could override EU supremacy

• Parliament could restore full legal sovereignty

• Parliament could reshape retained EU law

This confirms Dicey’s core claim:

Parliament can make or unmake any law.

But in practice: It’s complicated

The type of Brexit chosen (a “hard” Brexit) created new constraints:

• The UK must comply with the Trade and Cooperation Agreement (TCA)

• The UK must comply with international law (WTO rules, treaties)

• Northern Ireland remains partially aligned with EU law under the Windsor Framework

• UK businesses must comply with EU standards to trade with the EU

• Divergence from EU law creates economic and regulatory friction

So while Parliament is sovereign legally, it is constrained practically.

This mirrors the earlier distinction:

• Theoretical sovereignty (Dicey)

• Practical sovereignty (political, economic, international constraints)

What of Orthodox Sovereignty After Brexit?

Let’s revisit the earlier questions:

Did the 1972 Parliament bind the 1988 Parliament?

Yes — in practice.
But Brexit shows this was reversible.

What happened to the Enrolled Bill Rule?

It was breached in Factortame.
But Brexit restores it.

What happened to Implied Repeal?

It failed in Factortame.
But Thoburn and Brexit show Parliament can still expressly repeal constitutional statutes.

What happened to Diceyan Sovereignty?

It was challenged, qualified, and reshaped, but not destroyed.

The Thoburn Principle After Brexit

Laws LJ in Thoburn said:

• Some statutes are constitutional statutes

• They cannot be impliedly repealed

• They must be expressly repealed

Examples include:

• Bill of Rights 1689

• Human Rights Act 1998

• Scotland Act 1998

• Government of Wales Act 1998

• (Formerly) ECA 1972

Brexit confirms Thoburn

The ECA 1972 was repealed expressly, not impliedly.

The Supreme Court has approved this doctrine in:

• H v Lord Advocate (2012)

• HS2 (2014)

• Miller (2017)

This means:

The UK now has a hierarchy of statutes — something Dicey denied.

Other Challenges to Orthodox Parliamentary Sovereignty

Orthodox (Diceyan) sovereignty says:

• Parliament can make or unmake any law

• No Parliament can bind its successors

• Courts must apply Acts of Parliament

• No court or body can override an Act of Parliament

But three major developments challenge this model:

1. Human Rights

2. Devolution

3. The common law / the judges

Together, they create a modern constitution that is far more complex than Dicey imagined.

Human Rights — A “Soft” Constitutional Limit

The Human Rights Act 1998 (HRA) incorporates the ECHR into UK law.

Why it challenges sovereignty

• Courts can review Acts of Parliament for compatibility with human rights.

• Courts can issue declarations of incompatibility (s.4).

• This creates political pressure on Parliament to amend laws.

• Courts interpret legislation “so far as possible” to be compatible with rights (s.3).

But sovereignty survives

• Courts cannot strike down Acts of Parliament.

• Parliament can ignore a declaration of incompatibility (though it rarely does).

Effect

The HRA introduces judicial oversight and moral limits, but not legal limits.

This is a political challenge to sovereignty, not a legal one.

Devolution — A Political and Constitutional Constraint

The Scotland Act 1998, Government of Wales Act 1998, and Northern Ireland Act 1998 created devolved legislatures with significant powers.

Why it challenges sovereignty

• Devolved bodies can make primary legislation.

• Westminster is politically constrained from overriding devolved laws.

• The Sewel Convention says Westminster will not normally legislate on devolved matters without consent.

But sovereignty survives

• Westminster can still legally legislate for Scotland, Wales, and Northern Ireland.

• Devolution statutes say the devolved institutions are “permanent”, but only politically — not legally.

Effect

Devolution creates political limits on sovereignty, not legal ones.

The Judges Through the Common Law — The Most Radical Challenge

This is the most controversial challenge:
senior judges have suggested that the courts themselves may place limits on Parliament.

This idea appears most clearly in Jackson v Attorney General [2005] UKHL 56.

Jackson v AG (2005) — The Case That Shook Dicey

The case concerned the validity of the Parliament Act 1949, which was passed using the 1911 Act procedure (without the Lords’ consent).
The challenge argued that the 1949 Act was invalid, and therefore the Hunting Act 2004 was invalid.

The House of Lords upheld the Acts — but the judicial comments are what matter.

Lord Steyn — Sovereignty Is a Common Law Construct

“The classic account given by Dicey… can now be seen to be out of place…
The supremacy of Parliament is… a construct of the common law.
The judges created this principle…
It is not unthinkable that… the courts may have to qualify [it].”

Meaning

• Parliamentary sovereignty is not absolute.

• It exists because judges recognise it.

• If judges created it, judges could limit it.

This is a direct challenge to Dicey.

Lord Hope — Sovereignty Is No Longer Absolute

“Parliamentary sovereignty is no longer, if it ever was, absolute…
Its freedom to legislate admits of qualification.”

Meaning

• The constitution has evolved.

• Courts may refuse to recognise extreme Acts of Parliament.

• The rule of law may limit Parliament.

Lady Hale — Courts Might Reject Laws That Remove Judicial Review

“The courts will treat with particular suspicion (and might even reject)
any attempt to subvert the rule of law by removing governmental action
from all judicial powers.”

Meaning

• Courts may refuse to apply Acts that abolish judicial review.

• The rule of law may trump sovereignty.

This is the most radical statement of all.

Lord Bingham’s Contrary View — Sovereignty Is Not a Judicial Creation

Lord Bingham strongly rejected the idea that judges could limit sovereignty.

“The principle of parliamentary sovereignty… has been recognised as fundamental…
not because the judges invented it…
The judges did not establish the principle and they cannot… change it.”

Meaning

• Sovereignty is a political and historical fact, not a judicial construct.

• Courts cannot override Parliament.

• Dicey remains correct.

This is the orthodox view.

Thoburn v Sunderland City Council (2002) — Constitutional Statutes

Laws LJ introduced the idea of constitutional statutes.

Key idea

• Ordinary statutes can be impliedly repealed.

• Constitutional statutes cannot be impliedly repealed — only expressly repealed.

Examples

• Bill of Rights 1689

• Act of Union 1707

• Representation of the People Acts

• Human Rights Act 1998

• Scotland Act 1998

• Government of Wales Act 1998

• (Formerly) ECA 1972

Why this matters

This creates a hierarchy of statutes, something Dicey denied.

Supreme Court approval

The doctrine has been approved in:

• H v Lord Advocate (2012)

• HS2 (2014)

• Miller (2017)

This is a major evolution in sovereignty.

A Real Supreme Court?

The UK Supreme Court (created in 2009) is not a constitutional court like the US Supreme Court.
It cannot strike down Acts of Parliament.

But:

• In Jackson, judges hinted they might refuse to apply extreme legislation.

• In Miller, the Court insisted Parliament must authorise Brexit.

• In HS2, the Court suggested some constitutional principles may be “higher” than statutes.

This raises the question:

Could the UK Supreme Court ever become a real supreme court?

This remains debated — but the trend is toward greater judicial constitutionalism.